Damdinbazar v Allianz Australia Insurance Limited
[2023] NSWPIC 402
•4 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Damdinbazar v Allianz Australia Insurance Limited [2023] NSWPIC 402 |
| Claimant: | Narangarel Damdinbazar |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Shana Radnan |
| DATE OF DECISION: | 4 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval $114,000; 36-year-old female; past and future economic losses only; right ankle fracture now united; lumbar sprain ongoing intermittent pain; 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 18 February 2020, Narangarel Damdinbazar (the claimant) was a passenger on a bus that moved suddenly to avoid another vehicle, before she had the opportunity to take a seat. As a consequence of the driver making a sudden move she fell and sustained injuries.
An ambulance was called and she was taken to St Vincents Hospital. At the time she reported right arm and right ankle pain. She was given oral analgesia put in a tubi grip and given crutches as she could not weight bear. The diagnosis was ankle sprain or strain.
She was discharged from hospital the same day into the care of her general practitioner Dr Pankar. (document A7)
The claimant attended upon her general practitioner continuing to suffer pain and issues with mobilising the foot. A subsequent MRI revealed a posterior plantar calcaneal tuberosity fracture with less than 5mm displacement.
She was then referred for physiotherapy and placed in an aircast. She was then referred to Dr Chang for orthopaedic review.
Dr Chang was consulted as to orthopaedic injury. He suspected a Lisfranc injury. An MRI undertaken on 8 May 2020 identified a fracture.
The claimant was referred to physiotherapy and use of an aircast boot.
Review in June 2020 by a podiatrist confirmed the need to continue with the boot. A guided injection of cortisone undertaken in August 2020 to the midfoot and this was successful.
A further injection was undertaken in October 2020. Dr Chang then reviewed the claimant in December and at this time the claimant reported ongoing pain, it appeared to be settling and her symptoms were improving slowly. Dr Change confirmed no significant pathology to explain any ongoing pain.
Due to further ongoing pain when walking between the heel and knee, she consulted Dr Chang in June 2021. He considered the ongoing symptoms likely to relate to the lumbar spine. A bone scan was taken and mild talonvicular and midfoot arthritis. Spinal scans showed no neurological impingement. She was discharged from his care on 21 July 2021.
At this point the claimant’s treatment focussed on referral to a pain specialist. Dr Yu recommended nerve blocks at L3 and L4 and further physiotherapy was prescribed.
The pain in her foot prevented the claimant from returning to her part-time employment as a cleaner. Occupational assistance was also provided with retraining for sedentary roles. She also received extensive assistance through rehabilitation service providers.
Dr Stephen Rimmer assessed the claimant on 8 February 2023 at the request of the insurer. In his report dated 14 February 2023 he opined that whole person impairment was 0% and the insurer has relied upon this report to determine the claimant is not entitled to non-economic loss. The claimant did not contest this finding and was advised she could obtain her own medical opinion on this issue.
The agreed injuries are-
(a) fracture of right ankle, and
(b) lumbar spine strain.
The claimant has made a claim against Allianz (the insurer) of the at fault vehicle, for lump sum damages in an application for common law damages dated 24 February 2022 (document A2). By Liability Notice (document A) dated 15 November 2022, 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 claimant was aged 34 at the time of the accident and is turning 36 years old this month.
Her employment was as a house-keeper with Oaks Hotels and Resorts on a part-time basis.
The parties have reached an agreed of settlement in the sum of $114,000.
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
(b) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 28 July 2023
The claimant appeared with the assistance of her sister-in-law Maggie Baatar (Maggie) both in Portugal. Maggie is fluent in the English language. The claimant had good English but did require translation from time to time.
The teleconference was lengthy with the claimant informing me of her injuries to her right ankle and lower back. She reported that the pain “never goes away”. She confirmed that the medications used were over the counter pain relief and “pain oils”.
The claimant advised that she was in Australia at the time of the accident on a student visa. She was limited to working 20 hours weekly by her visa.
Whilst coming to Australia to learn English, she participated in casual employment cleaning. Due to her injuries she could not undertake this role any more.
She was a qualified accountant and could work as a branch manager with a local bank if she lived in Mongolia. With these credentials she was hoping upon her return to Australia, in late October this year, again as a student, her employment would involve accounting rather than a manual cleaning role.
The claimant hoped to eventually apply for permanent residency at a later time but if this was not granted, she considered her prospect of full-time employment in Mongolia as a Bank Manager was good.
The ongoing reported symptoms of pain to her right foot and lower back like a dull ache, which resulted in difficulty standing for long periods and walking for more than one hour at a time.
As to ongoing treatment, the claimant confirmed that at the last consultation with Dr Yu her pain specialist, he advised her she had reached maximal improvement.
She undertook over 50 sessions of physiotherapy to date.
The claimant also advised whilst in Mongolia, she had undertaken further scans and had seen local doctors who confirmed the same opinion as the Australian doctors she had seen. She was advised to continue with foot exercises and the use of “pain oil”.
Upon the claimant returning to Australia later this year, she confirmed she was able to work 25 hours weekly on the student visa and this change to hours recently implemented would be undertaken in a sedentary role as an accountant.
The parties discussed the agreement that settlement be in the sum of $114,000 past and future economic loss. Relying on the medical opinion of Dr Rimmer who was qualified by the insurer and opined 0% whole person impairment, the claimant and insurer confirmed there was no entitlement to non-economic loss.
We discussed the nature of the application and basis of the calculations of past and future economic loss.
The claimant was questioned as to her understanding of the settlement, its finality and the ability of the claimant to seek legal advice should she wish to seek an opinion on the settlement. The claimant advised she was aware of her rights and had spoken to some people about her claim and was not wanting any further time to retain legal representation. She wanted to conclude the matter.
I was requested to approve the terms of settlement.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle of 441 pages:
· Liability:
application for statutory benefits dated 24 February 2020 (document A2) ;
application for common law damages dated 24 February 2022 (document A43) ;
liability notice dated 15 November 2022 (document A61), and
transit system incident report dated 18 February 2020 (document A6).
· Treating medical records:
St Vincents Hospital discharge summary dated 18 February 2020 (document A5);
ambulance report dated 12 March 2020 (document A7);
report of Dr Yu dated 25 January 2022 (documents A42);
clinical records Oxford Village Medical Centre (document A12);
clinical records Dr Yu (document A54);
clinical records Green Square Medical Practice (document A55);
clinical records UR Family Practice (document A60);
rehabilitation records Pinnacle Rehab (documents A8, A9, A25, and A15);
rehabilitation records various (documents A31, A33, A35, A40, A41, A44 and A58);
various imaging (document A14, A16 -A19, A30, A38 and A39);
medical certificates of capacity (document A3, A47, A51);
various physiotherapy reports (documents AA28, A29, A36, A46, A49 and A50;
vocational assessments (documents A48,A53, A56 and A57, and
medico-legal report of Dr Rimmer dated 14 February 2023 (document A5).
·Employment records:
MIT institute letter dated 17 February 2020 (document A4), and
employee earnings document dated 23 February 2020 (document A59).
· Settlement documents:
offer letter dated 4 May 2023, and
Deed of release dated 2 June 2023 (documents A62 and A64).
REVIEW OF THE EVIDENCE
Information from the claimant
The claimant confirmed she had residual pain which was necessitating the use of over the counter medications and oils.
Her treatment included physiotherapy from time to time when her symptoms flared.
She intends to return to a sedentary role upon her return to Australia which will be in the field of accounting which is a higher rate of pay than casual cleaning and previous attempts at
She intends to work for the full hours allocated by her student visa until she obtained permanent residency.
Apart from a day of here and there when her back is problematic or her foot is very sore, she does not think the lingering symptoms will impact greatly on her future earning capacity. She is likely to earn more as a part-time accountant than that of a part-time cleaner.
Information in the medical and rehabilitation records
The claimant was transported from the accident scene to St Vincent Hospital via ambulance. Initial imaging did not find any fractures in the right ankle. She was provided a tubi grip and crutches to be reviewed by her general practitioner. The claimant experienced ongoing pain and inability to mobilise and was referred to Dr Chang for further review of the injury. Dr Chang suspected a Lisfranc injury given the bruising pattern and referred the claimant for an MRI. The MRI undertaken on 8 May 2020 identified a stress fracture of the posterior plantar calcaneus. Dr Chang then referred the claimant to physiotherapy for treatment as well as an aircast booth. She also referred for further imaging of the hindfoot. Upon further review in June 2020, Dr Chang recommended the claimant wean from the camboot, commence physiotherapy to desensitise the foot and consider a cortisone injection to the plantar fascia if pain remains.
The claimant was also referred to a podiatrist who recommended ongoing camboot use including inside the home given the extensive pain and then a transition to shoes with orthotics. The claimant later received insoles to assist with her pain whilst undertaking physiotherapy. The claimant underwent a guided injection in August 2020. She experienced a resolution of pain in the midfoot after the corticosteroid injection. Imaging undertaken in September 2020 confirmed complete union of the calcaneal tuberosity fracture, though there was mild tissue oedema surrounding the site. Dr Chang referred for her a further injection for this area of the foot given the good result with the plantar fascia injection, she underwent same in October 2020. Her review with Dr Chang in December 2020 noted she still had some ongoing pain, however it was settling and symptoms were improving slowly. Dr Chang noted there was not significant pathology to directly explain the ongoing pain, however it was positive that her pain appeared to be improving.
She continued with physiotherapy, and despite imaging showing a fully healed fracture, she experienced ongoing pain. The claimant reported in her review with Dr Chang on 3 June 2021 that she was experiencing pain from heel to knee particularly after walking an hour. Dr Change noted that the new pain may well be related to her lumbar spine. She referred the claimant to a neurologist for review. Dr Chang noted the claimant should be fit for work from the perspective of her foot, however there may be spine pathology that prevents her from working her pre-injury role. The claimant underwent a bone scan which showed mild talonavicular and midfoot arthritis, and an MRI of the spine which showed no neurological impingement, confirmed in the report of Dr Chang dated 13th July 2021. Dr Chang discharged her from her care on 21st July 2021 after confirming there was no pathology that could explain her pain. Dr Chang noted that she would support the claimant to retrain given the claimant’s hesitance at returning to cleaning for fear it would aggravate her pain.
The claimant was referred to a pain specialist given her ongoing pain despite the pathology. It was determined she likely had neuropathic pain. Dr Yu (report 25th January 2022) recommending nerve blocks at L3 and L4 and an MRI of her right foot. The claimant was prescribed endep and encouraged to continue physiotherapy. Her physiotherapist provided a report dated 21st March 2022 which noted ongoing issues with pain and whilst the claimant was fit for lighter duties, her foot pain was still a barrier to her cleaning role. From the date of accident, until 3 August 2022, where she was certified fit for four hours, five days a week with restrictions.
A Return to Work and Recovery Assessment Report was undertaken on 9 September 2022. At the time of the assessment the claimant was only seeing her physiotherapist. Discussion with her physiotherapist revealed the claimant was pain focused and self-limiting, her physiotherapist recommended referral to an occupational health physician. On 21 October 2022 a report was received from the claimant’s physiotherapist noting she was not compliant with treatment. From 29 October 2022, the claimant was certified fit for eight hours, three days per week with restrictions on standing and lifting. A vocational assessment was conducted on 3 November 2022 (report 15 November), in which it was identified the claimant would be capable of undertaking work in administrative roles such as payroll officer, data entry officer and administration officer. It was noted a barrier to administration officer roles was the claimant’s limited English.
The claimant commenced exercise physiology and continued to report pain in the foot after prolonged standing. The claimant showed good progress through this treatment, Dr Yang, her general practitioner supported the vocational goals identified in the vocational assessment as well as positions such as hospitality worker in January 2023. The claimant obtained a spot in a Job Cover Placement Program in February 2023, however communication was received from the employer that they were not willing to have the claimant back after her first day noting poor performance – particularly an unwillingness to follow instructions. The claimant is alleged to have informed the employer that it didn’t matter as she was going back to Mongolia anyway. A closure report from IOH rehabilitation was received on 10 February 2023 (date listed on the report is 8 March which appears to be an error). The report notes the claimant was terminated from the work trial due to inability to follow instructions and being on her phone. It was noted she told the employer the role was temporary as she planned on leaving in June. The report notes the claimant failed to engage in independent job seeking, arrived late to job seeking meetings and appeared reluctant to consider roles outside of bookkeeping despite her limited English.
The claimant was assessed by Dr Rimmer on 8 February 2023. The claimant reported she does not require any analgesics or anti-inflammatories and she experiences ongoing ache in her right heel as well as discomfort in her lumbar spine. The claimant reported continuing all self-care and household duties. Dr Rimmer found upon examination no guarding or neurological impairments of the lumbar spine and no dysmetria, and no significant restriction of the right foot and ankle. He noted ranges of motion were performed without any obvious discomfort and noted the fracture of the right posteromedial calcaneal tuberosity is resolved. Dr Rimmer opined that the claimant had no work incapacity in relation to the subject accident for the future, and that she would have had a past incapacity of three months only. Dr Rimmer found 0% whole person impairment.
INJURIES
Upon review of the medical information, I am satisfied that the material produced establishes the claimant sustained a fracture to her right posteromedial calcaneal tuberosity which is considered now to have healed. She suffers ongoing pain to her right heel from time to time.
The claimant complains of ongoing intermittent back pain with no evidence of radiculopathy.
The lower back symptoms of lumbosacral pain are intermittent Dr Kulkami, spinal surgeon, found no basis for ongoing symptoms.
Dr Rimmer commented that the claimant’s reporting of symptoms did not accord with anatomical findings. She did not require any forms of oral analgesics or anti-inflammatories. He commented:
“there were gross inconsistencies between reported symptoms and complaints as today’s examination of all anatomical sites was normal”. (Page 331 of application bundle.)
I am satisfied on the medical evidence that the claimant is not entitled to non economic loss.
ECONOMIC LOSS
Past economic loss
In her Application for Personal Injury Benefits, the claimant indicated that the impact of using her right foot impacts on her earning capacity as it related to standing for long periods, talking public transport and time she was unable to work due to being non weight bearing.
The claimant was employed pre-accident as a housekeeper working variable hours fortnightly with Oaks Hotels. The records produced by the employer (document A8) verify that the claimant’s hours varied between 40 hours and 23 hours per fortnight.
Averaging the earnings for the period 13 October 2019 to 16 February 2020 the claimant’s net weekly earning were agreed at the sum of $427 weekly. This accords with the financial records produced.
The parties agreed that the claimant was restricted by her injuries from returning to the role as a housekeeper for a period of 156 weeks.
She reported to Dr Rimmer that she returned to employment as an office administrator for a cleaning company on 7 February 2023 on a trial basis with the arrangements with rehabilitation provider. She remained in this position for a short period only.
The claimant’s lack of participation with employment trials arranged by the rehabilitation provider IOH rehabilitation were considered to be a failure to mitigate loss and as a result the insurer considered her fully fit to return to employment as at 8 March 2023.Thereafter any losses would be intermittent at best.
The claimant during the teleconference confirmed she did not undertake any further employment after February 2023 as her intention was to return to Mongolia and then apply again for a student visa to return to Australia. As a consequence of her restrictions to immigration, she was required to return home and then wait for approval to return. This is expected to take place in October 2023. It is not a certainty but likely.
The claimant confirmed she was not looking for work currently whilst in Mongolia as she hoped to return to Australia. If her application was not approved, she would seek employment as a Bank Manager on a full-time basis and did not expect any difficulties with a full return to work.
The parties have agreed to past economic loss of 156 weeks at $437 weekly amounting to $66,612 plus superannuation of $7,327.32 plus tax of $48.00 amounting to $73,987.32 rounded up to $74,000.
Future economic loss
The claimant confirmed she had been qualified as an accountant in Mongolia. It is her intention to work in the accounting field upon her return to Australia in late October 2023.
She will not return to any casual housekeeper roles due to the injuries sustained in the accident as such activities would be unsuitable as she considers this will aggravate her right foot. There is medical support for this position.
I accept that the claimant intends to undertake a professional role in accounting which is likely to increase her earning capacity from that which she was participating in as a housekeeper/cleaner.
The vocational reports relied upon in the matter confirm the claimant is fit to undertake such activities, noting the claimant has a restriction due to her visa of only being able to perform up to 25 hours weekly.
On the medical evidence, the claimant has no restrictions working a sedentary role full-time should her visa permit this.
When questioned during the teleconference, the claimant confirmed she intended to return to full-time hours when permitted. She intended to continue with studying English and over time this would improve her language skills and employment prospects.
Whilst the insurer relied upon the opinion of Dr Rimmer who opined that the claimant had no ongoing impairment to earning capacity, it took a pragmatic approach to the claimant’s continued complaints of right foot pain and lower back pain, accepting the likelihood of intermittent flare up of symptoms.
The parties agreed that due to the intermittent ongoing symptoms, the claimant may well require time off from time to time and that over time, the symptoms would likely reduce as confirmed by physiotherapy and clinical records produced.
Noting this limited impairment into the future a buffer was proposed. The parties came to a resolution of the future economic loss by way of a buffer of $40,000 inclusive of superannuation.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past and future economic losses accord with the evidence provided by the claimant in this matter and are within the range of likely potential damages assessment for the claim were the matter to be assessed by a Member of the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.
The claimant was working as a casual cleaner at the date of the accident.
She was earning approximately $427 net weekly. Financial records produce in documents A8,
The claimant had impairment to her earning capacity for three years. The losses attributable were $66,612 and tax on the sum amounted to $48. The insurer allocated $74,000 for past economic loss. She was provided with a vocational training and was discharged from this when she failed to undertake further job experience of her own volition due to her intention to return to Mongolia.
I am satisfied that past losses are within the range of damages had the matter been assessed by a Member of the Commission.
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in her most likely future circumstances. The provision of a buffer in this matter of $40,000 for intermittent periods where her symptom flare up causing loss of earning capacity is also within the range of likely potential damages had a member of the Commission assessed the matter.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR 301 and Husher v Husher (1999) 197 CLR 138, the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in her earning capacity and, if so, whether that loss or diminution will result in economic loss. The circumstances in this matter accord with the most likely circumstances but for the accident. The claimant was qualified as an accountant in Mongolia and her returning to an accounting role of a sedentary nature but for the accident with a higher earning capacity is likely to limit ongoing future economic losses.
Further, it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine, as per Penrith City Council v Parks [2004] NSWCA 201. I agree that this is an appropriate matter for the award of a buffer as the claimant has a variable diminution to her earning capacity.
I consider the agreed buffer in the sum of $40,000 inclusive of future superannuation is within the range of likely damages had the matter been assessed by a Member of the Commission.
I am satisfied that the claimant is aware of her right to have her reasonable treatment.
Ms Walsh confirmed there was likely no Centrelink deductions and that the insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. If any charge is raised the insurer will pay the charge as a treatment expense in addition to the settlement sum. The only deduction would be the statutory weekly payments already made to date in the sum of $45,470.08.I advised the claimant if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, she should refer the matter to the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
The claimant was aware she would receive the nett sum of $68,529.92 from the settlement.
CONCLUSION
I am satisfied the proposed settlement of $114,000 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 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 from the proceeds a sum of $45,470.08 will be deducted as prepaid statutory benefits.
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.
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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