CIC Allianz Insurance Limited v Yoong
[2022] NSWPIC 617
•7 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | CIC Allianz Insurance Limited v Yoong [2022] NSWPIC 617 |
| Claimant: | Lai Yoong |
| insurer: | CIC Allianz Insurance Limited |
| Member: | Shana Radnan |
| DATE OF DECISION: | 7 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 50-year-old female; injuries to left ankle and right elbow; left ankle requiring surgical fixation; economic losses only; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | Settlement Approval 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 (the Act). 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
Background
CIC/ALLIANZ (the insurer) referred the proposed settlement to the Personal Injury Commission (the Commission) I. The application was allocated to me for consideration and I have held a teleconference in the matter as follows:
(a) On 2 September 2022 with Lai Yoong (Karen) (the claimant) and the insurer. During the lengthy teleconference I obtained particulars and an update as to the claimant’s current medical status, discussing the nature and extent of her ongoing injuries, as well as determining from questioning the claimant her understanding of the settlement, its finality and assurance that she was satisfied with the settlement.
(b) The claimant confirmed during the teleconference that she continued to have issues with her left ankle after an incident at work in Easter and I considered it appropriate that if she wished to seek further medical opinion as to the prognosis, she should investigate the ongoing impact and how it may affect her.
(c) I requested the production of up to date treating doctor’s clinical records to satisfy myself of the current status of the claimant’s injuries and any report the claimant wished to obtain.
(d) I received an updated report of treating orthopaedic specialist Dr Soo dated
10 October 2022 as well as MRI scans of the left foot and ankle.(e) On 21 October 2022 a further teleconference was held with a review of the updated medical information.
(f) At this time the details of the offer were discussed and the impact of the ongoing medical issues with the claimant’s left ankle as it related to future economic losses.
(g) The insurer and the claimant sought to reconsider the offer of settlement in the light of the fresh evidence from Dr Soo.
(h) On 4 November 2022, I was provided with an updated offer which has been accepted by the claimant as follows:
(i)past economic loss - $3,000 inclusive of $285 Fox v Wood component (tax paid), and
(ii)future economic loss - $25,000. (This was an increase from $10,000)
(i) It was confirmed by the insurer that would cover all reasonable and necessary treatment expenses for the period of five years post-accident and that contact should be made in the event ongoing treatment was required. The claimant confirmed she understood this.
(j) I questioned the claimant as to whether she was aware she could seek legal representation and obtain advice as to her rights and the appropriateness of the settlement sum. The claimant responded to me she was happy with the settlement and wanted to have the matter completed and did not wish to retain legal representation.
(k) The claimant was not entitled to non-economic loss as her injuries did not exceed the statutory threshold. The report of Dr Keller confirmed 0% whole person impairment.
The accident
The claimant was travelling on her Vespa motorcycle, when the insured truck entered her lane knocking her off her motorcycle. She was taken to St Vincent’s Hospital by ambulance.
She suffered a right elbow fracture and a left ankle fracture with dislocation and ligament tears. She underwent a closed reduction of the left ankle and an arthroscopic washout.
Liability
Liability was admitted on 26 February 2021.
Ongoing injuries / disabilities
The claimant has been under the care of her treating general practitioner Dr Lee and treating orthopaedic surgeon Dr Soo.
She was certified unfit for her duties until 4 March 2019. On 5 March 2019 she was fit for usual hours with restrictions on standing and lifting. By 21 May 2020 the claimant was certified fit to work full hours and duties without restriction.
An MRI of her left ankle on 17 April 2019 revealed a complete rupture, partial tear and ligament damage.
A review undertaken by Dr Soo on 14 May 2019 of her right elbow confirmed her elbow injury had recovered well. Only on lifting heavy items was the elbow sore, other than that the claimant had returned to work without complication.
The claimant continued with physiotherapy to assist her with functional tasks and by
9 January 2020 she was discharged from treatment. She continued with exercise physiology until 27 April 2020 noting she had reached peak performance.
Medico-legal assessments
Dr Andrew Keller examined the claimant on 16 February 2022 at the request of the insurer. Upon examination he found the claimant had full range of motion of the right elbow and left ankle. He noted two small surgical scars without tenderness.
He opined the claimant had no ongoing restriction in earning capacity and no assessable impairment as the claimant had regained full ranges of motion of the right elbow and left ankle.
Economic loss
The claimant reported in her statutory benefits claim she worked as an administration/accounts person for a butchery earning $770 weekly. Her employer confirmed her role as a sales support manager. Her 2018 PAYG summary revealed gross payments of $44,000. Payslips provided for the period 6 July 2018 to
22 February 2018 revealed gross weekly earning of $770 and nett $654 weekly.Past economic losses were claimed for the period of three weeks and two days in the sum of $2,487.10 and a sum of $285. This sum was rounded up to $3,000 to include loss of superannuation.
The insurer initially made an offer of $10,000 for future economic losses by way of a buffer for occasional flares ups impacting on her ability to work. Upon review of the updated MRI scans and noting the claimant has a further working life of 17 years, the parties entered further negotiations on 21 October 2022 and finalised agreement in the sum of $25,000 inclusive of superannuation.
I reviewed the offer and confirmed with the insurer that the sum of $2,487.10 in statutory payments will be deducted from the settlement sum.
The claimant has advised that she accepts the updated settlement offered in the sum of $28,000.
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 claimant which included medical records and report of Dr Soo dated October 2022. There was no other information provided post teleconference.
I received an oral impact statement of the claimant at the first teleconference.
I have considered the medical information provided and am satisfied that on the evidence of the claimant that most of her symptoms have resolved. She continues to have some restrictions from time to time as a result of the injury to her left ankle. She does not undertake any ongoing treatment and she is able to perform her work related tasks.
The clinical records produced confirm that the claimant is not receiving any significant treatment for her injuries from her general practitioner.
The claim
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 insurer accepted liability for the claim. 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 pursuant to Division 3.4 of the Act.
“Treatment” is widely defined and includes medical treatment (including reviews by the claimant’s general practitioner and 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 damages the claimant is entitled is economic loss which is to compensate her for impairment to her earning capacity caused by the motor vehicle accident and injuries sustained.
Condition of the claimant at the time of settlement
The claimant reported at the teleconference that “she is fine most of the time and can do mosts things. Only occasionally she need to be careful not to aggravate her left ankle”.
When I question what she suffers most? She responded “I get pain in cold weather, it comes and goes - it is not unbearable”.
When questioned about medications she took, she replied “I don’t take them, I use hot and cold packs. In summer, I put my ankle into a bucket of cold water”.
She reported, “if I wear tight socks, the pain and ache is not so bad”.
The claimant also confirmed she had a very sympathetic employer. She had worked for him for many years and was able to pace herself and not do tasks which could aggravate her condition.“My job is not at risk” she confirmed. She also considered she would remain with the same employer to retirement.
The clinical records reveal little mention of ongoing problems as a result of the motor vehicle accident. There are regular attendances for other medical conditions unrelated to the accident.
Recent MRI scans of the ankle and foot reveal mild osteoarthritis and mild achilles paratensonitis.
The claimant confirmed she would approach the insurer for ongoing physiotherapy should her left ankle symtpoms flare up.
The claimant confirmed apart from the physiotherapy to help her mobility she felt her injuries had reached a plateau and there was no further deterioration noted. No ongoing medication was taken at the present time.
I am satisfied that the information provided by Dr Soo as recent as October 2022 accords with a significant recovery. It has been suggested she wears orthotics to support her medial arch and physiotherapy will assist however the claimant reported to Dr Soo she was not keen to undertake it at this stage.
The flare up of left ankle symptoms after a work incident in Easter 2022 had all but resolved according to the report to Dr Soo. His final report confirmed “She recovered very well and has regained all of her function to the elbow and left ankle”.
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.
(b) The settlement must be approved by a Member 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 PIC 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 of $28,000 has been broken down as $3,000 for past economic loss and $25,000 for future economic loss;
(ii)Sub-cl 2 requires the amount of any deductions in the proposed settlement.
The offer made includes a sum of $2,487.10 to be deducted as statutory payments for weekly earnings already paid by the insurer to the claimant;
(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, and
(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 claimant have been able to provide to establish the nature and extent of the claimant’s injuries and current ongoing disabilities. I am satisfied with the material provided that I can make a determination.
(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
6 February 2019 and the application for settlement approval was made on 8 August 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, into account any proposed reductions or deductions in the proposed settlement.
Having reviewed all of the medical evidence produced in this matter and having spoken to the claimant, I accept her evidence of minimal ongoing restrictions. The occasional pain does not impact on her earning capacity often. I accept there may be some deterioration over time noting the onset of mild osteoarthritis. 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 treatment is known and apart from intermittent symptoms and there is no evidence before me to suggest the claimant is likely to undertake any further surgical intervention.
I find that the medical evidence supports significant recovery and the allowance for flare ups is appropriate.
I consider that the agreed sum of $28,000 for past and future economic loss is just, fair and reasonable and within the range of likely potential damages assessments had the matter been assessed by a Member of the Commission taking into account the extent of recovery, the claimant’s age and limited ongoing symptoms which no longer requires medication. I also factor in the extent of economic losses suffered to date and considered the allowance for future losses in the sum of a buffer $25,000 for the occasional days off when symptoms flare up, is within the range likely to have been determined had the matter been assessed, and
(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 advised in the teleconferences held that in the event she took the settlement, she could not seek any further damages for losses. She 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 her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its finality to her 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.
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