Insurance Australia Limited t/as NRMA Insurance v Bray
[2024] NSWPIC 78
•22 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Bray [2024] NSWPIC 78 |
| CLAIMANT: | Michelle Bray |
| INSURER: | NRMA |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 22 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $200,139.38; 58-year-old female; past and future economic loss only; no entitlement to non-economic loss; 5% whole person impairment; injuries include neck, lower back, right elbow and psychological; fear of driving; loss of opportunity; buffer for future economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval 1. The amount of the claim for damages is approved in the total amount of $200,139.38. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 19 May 2021, Michelle Bray (the claimant) was hit by the insured and T-boned at the intersection of Kiama and Box Road at Sylvania, causing the vehicle to spin and flip onto its side. Fire brigade was required to extricate the claimant from her vehicle.
The claimant sustained injuries in the accident. She was taken to St George Hospital by ambulance and was discharged the same day after an assessment into the care of her Dr Olga Poutilina at Caringbah.
She lodged an Application for Personal Injury Benefits on 25 May 2021.
Ambulance records dated 19 May 2021 confirmed the claimant’s initial injuries so too the St George Hospital discharge summary. The claimant sustained laceration to her right elbow and lower back pain. Investigations confirmed there were no fractures and X-rays were taken from cervical to lumbar spine. The onset of neck pain came later.
Police attended the scene and an event report E79857270 issued dated 5 May 2023.
The claimant remained under the care of Dr Poutilina her general practitioner for review and management. She reported neck and back pain to her general practitioner. She was later referred to Amanda Jones, psychologist, in June 2021 for psychological treatment for fear of driving and anxiety.
The claimant has made a claim against NRMA (the insurer) of the at fault vehicle, for lump sum damages in an application for common law damages dated 6 April 2023. By liability Notice dated 7 September 2023, the insurer wholly admitted liability for the common law damages claim.
The claimant claimed that she sustained injury in the accident to the following areas of her body:
(a) neck;
(b) right elbow;
(c) lower back;
(d) shoulders, and
(e) psychological injuries.
The insurer has accepted that the claimant had sustained non-threshold injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) she is entitled to payment of reasonable treatment if required.
The claimant is currently aged 58 years and has a working life to retirement age of a further nine years.
The insurer relied upon the medico-legal assessment undertaken by Dr Mitchell, occupational physician, and his report dated 25 August 2023 and the report of Dr Eftekar, psychiatrist, dated 22 August 2023 to establish that whole person impairment did not exceed the statutory threshold. The claimant is not entitled to non-economic loss as physical injuries were assessed at 0% and psychological injuries at 5%. The claimant did not seek to challenge this decision.
As to pre-existing medical conditions the claimant had previously undertaken left shoulder treatment as a result of a skiing incident in 2020 where she sustained a supraspinatus tear and impingement requiring ultrasound guided injection. Dr Parfitt diagnosed a frozen shoulder. This injury was exacerbated by the motor accident.
A number of preliminary conferences have been held in the matter. The first on 27 November 2023 followed by a further conference on 19 December 2023 and the final on 15 February 2024. It became apparent in the first preliminary conference held on 14 November 2023 that I required additional information to assist me in making my determination. At this point in time the settlement sum was $89,139.38. I directed that the insurer obtain updated report of Ms Plush treating psychologist as to the current psychological treatment being undertaken.
Also the claimant advised that the insurer had not taken into consideration the losses associated with her being offered additional work with Crunch female fitness centre and the claimant was given time to establish this fact and present this information to myself and the insurer.
The claimant subsequently produced a letter from Amanda Hefferan dated 4 April 2023, and the reports of Ms plush dated 11 December 2023 and 15 January 2024 as well as further report of Mr David Troup dated 15 February 2024 to support economic loss and current psychological treatment needs.
Upon this additional information being received the parties engaged further negotiations as it related to future economic loss and came to an agreement to settle the claim in the increased sum of $200,139.38. This settlement sum was broken down as follows:
(a) past economic loss $24,000,
(b) past superannuation $2,500,
(c) past tax $1,500, and
(d) future economic loss inclusive of superannuation $172,139.38.
At the preliminary conference undertaken on 15 February 2024 the claimant confirmed her understanding of the nature and effect of the settlement, the ability should she have wished to seek legal advice as previously discussed and that she did not wish to seek any further advice, she accepted the increased sum and understood the finality of the settlement on her claim for damages.
The claimant confirmed she wanted the settlement to be approved and understood that previous statutory payments made by the insurer of $17,245.51 to her for weekly payments would be deducted from the settlement sum leaving a balance to her of $182,893.87.
The claimant accepted the amended offer on 15 February by email.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the MAI Act and relevant Guidelines.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021.
Because of the date of the accident cl 14(D)(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) apply to this matter.
THE RELEVANT LAW
Under ss 6.23(2) and (3) of the MAI Act, before the Commission may approve the settlement of a claim for damages, it must be satisfied that the proposed settlement complies with any of the requirements of the MAI Act or the Motor Accident Guidelines.
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“(a) (deleted)
(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, and
(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.”
The parties requested that I approve the amended terms of settlement.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle which included the following:
Liability:
· application for statutory benefits document 4;
· application for common law damages document 5, and
· liability notice document.
Treating medical reports:
· ambulance report – document 9;
· St George discharge summary – document 10;
· Discharge summary Sutherland Hospital dated 3 March 2022 – document 17;
· ultrasound of left shoulder dated 30 September 2020 – document 14;
· ultrasound of right elbow dated 1 October 2021 – document 15;
· MRI of left shoulder – document 16;
· report of Dr Xia dated 24 September 2022 – document 18, and
· report of Mr Farbenblum dated 23 March 2023 – document 19;
Treating rehabilitation reports:
· rehabilitation progress reports – documents 24 and 27;
· graded return to work plans – documents 25 and 26, and
· rehabilitation closure report dated 19 November 2021 – document 28.
Clinical records:
· Caringbah Medical Centre – documents 11 and 12, and
· Dr Trantalis – document 13.
Medico-legal opinion:
· report of Dr Mitchel dated 23 August 2023 – documents 20 and 21, and
· report of Dr Dr Eftekar dated 30 August 2023 – documents 22 and 23.
Economic loss records
· jobkeeper records – document 29;
· work invoices – document 30;
· certificates of capacity – document 31;
· claimant’s replies dated 21 July 2023 – document 32;
· report of PKF forensic accountant dated 17 August 2021 – document 33;
· tax returns 2018 to 2023 – documents 35 to 40, and
· NRMA letter re PAWE dated 21 August 2021 document 34.
Settlement documents:
· claimant’s submissions statement dated 6 April 2023;
· initial draft settlement agreement dated 25 October 2023;
· amended settlement agreement dated 14 February 2024, and
· claimant’s acceptance dated 14 February 2024.
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant provided details of the impact of her injuries both from a physical and psychological perspective.
The claimant described her level of fitness prior to the motor accident as:
“Prior to the car accident which occurred on 14 May 2021, I was 100% fit and active with no restrictions on activities that I enjoyed, or work that I chose to do. I was a regular runner, trained weights twice a week, enjoyed snowboarding, skating and hiking. I was not restricted by the level of Intensity or type of classes I could teach as the main part of my job as a Group Fitness Instructor and Group Fitness Manager at Fernwood Miranda. I lead by example and would step in to cover any classes if Instructors were sick or unavailable. During lockdown this was even more so as I worked for 3 different Companies providing a wide range of Fitness Classes via Zoom including HIIT, Cardio Boxing, Weights Classes, Cardio and Pilates. All of this has been my career for the past 22 years. I enjoyed holidays with extreme activities such as Heli Skiing, Cave Hiking and Snowboarding. I had learnt to tow the caravan that we had purchased in March 2021 and was looking forward to our first weekend away which was to be 2 days after the accident.”
The claimant also described the impact of her injuries upon her ability to perform her usual tasks as a fitness instructor:
“I found myself going from fit and active with a very physically enjoyable career to now teaching only Pilates Reformer classes which require no physical exertion from me. I loved how my job kept me fit and I got paid well to do it. I make up the shortfall in my income by taking Reception shifts but this is not where I envisaged.
I miss what I was capable of. Before the accident. I miss leading a team by example. Every time I’ve timetabled myself back on to classes that I used to do, (even performing them) to a lesser extent) my back flares up. I am regularly asked by members when I am going to start teaching my classes again. I’m disappointed to let them down. I’m frustrated that it’s not going to happen. I was having weekly, then fortnightly Physio treatment over an 18-month timespan. I might have gone a couple of weeks without pain but one action that I used to take for granted like Lifting a weight or doing a star jump is enough to render me on Panadol or Nurofen to keep the pain at bay so I can manage my daily life. I came to loath going to Physio as it was becoming a chore and my body was telling me that the treatment was a shorth term fix and my pain was going to be an ongoing thing that I would just have to live with. I have had dozens and dozens of Physio treatments for my back but each time I edge back towards heavy weights or impact exercises I regret it.
I don’t feel like I will Snowboard again which is devasting to me and my husband as we visited the snow several times a season. I feel old before my time and reliant on others for things that I used to take for granted like moving some furniture, picking up something heavy, even picking up my dog, jumping down off something, pushing the lawn mower.”
The medical reports provided in this matter establish the impact of the injuries upon the claimant against a background of a prior left shoulder problem. The claimant has been subject to a further operation in March 2022 at Sutherland Hospital to remove fragments of glass imbedded in her right elbow.
The claimant has reported significant difficulty with fear of driving and has undertaken psychological treatment since the accident to address her fears. She is currently seeking further treatment from Mr Troup who recently provided a report at to the effect of current treatment. He opined:
“Michelle has engaged excellently in sessions and has been practicing the strategies we have discussed in session as well as trialled to extend her distance driving but has continued to experience overwhelming anxiety while doing so. However, this was before we complete the EMDR processing sessions on the memory of the MVA. We plan in future sessions to target current triggers associated with driving and after we have completed this phase of treatment, I expect Michelle will be well placed to increase her driving distance towards the goals in our AHHR with some anxiety to begin with but likely this will be tolerable for her. Regarding her prognosis I expect given the recent decline in her PCL-5 scores that she will in coming weeks no longer meet criteria for PTSD regarding the MVA and will be able to increase her driving distance without overwhelming anxiety once we have processed the current triggers in further EMDR processing sessions.”
Whilst the impact of injuries has been significant on the claimant, her injuries do not exceed the statutory threshold of 10% whole person impairment and so she is not entitled to damages for non-economic loss.
Having reviewed the opinions of Dr Mitchell, occupational physician, and Dr Eftekar, psychiatrist, I am satisfied that the claimant’s whole person impairment does not exceed the statutory threshold and as a consequence she is not entitled to no economic loss.
There has been impact on her earning capacity from the injuries she has sustained and she is entitled to damages for past and future economic loss.
INJURIES
The clinical records produced in the matter confirm that the claimant initially sustained the following injuries:
Physical:
· bruising and lacerations to right elbow;
· soft tissue injury cervical spine and lumbar spine;
· aggravation of pre-existing injuries to left shoulder, and
· soft tissue injury to right shoulder.
Psychological injury:
· fear of driving, and
· Anxiety.
From review of the medical information and the recent reports of Ms Plush and Mr Troup I am satisfied that the nature of the claimant’s injuries have impacted on her earning capacity both past and future. I note the assessments of Drs Mitchell and Eftekar, obtained at the request of the insurer, consider there has been significant improvement.
Dr Mitchell opined that the claimant was fit to return to full-time work with limited restrictions of lifting of weight to:
“mid chest height and close body trunk if repeated or sustained to avoid aggravation of symptoms. He assessed a lifting restriction to 10kgs and on occasional basis only to 15kgs. Fixed or awkward spinal postures should be avoided and to ensure regular postural movement throughout the day.”
Her prognosis was “good”.
Dr Eftekar on psychological injuries confirmed a favourable prognosis as it related to a diagnosis of post-traumatic stress disorder and with ongoing treatment her fear associated with driving should resolve.
The insurer has conceded that the claimant’s injuries continue to impact on her earning capacity and that but for the accident the claimant would have continued to work as a group fitness coordinator in her own business ventures to retirement age of 67 years.
ECONOMIC LOSS
The claimant at the time of the accident was a self-employed fitness instructor. She worked at Fernwood Gym at Miranda and also undertook classes at Caringbah Retirement Village.
An assessment of business records was undertaken by PKF Forensic Accountants at the request of the insurer. Pre-accident weekly earnings were assessed at $791.15.
The claimant and insurer have agreed that past economic loss amounts to the sum of $24,000 as recorded in the scheduled calculations in submissions at paragraph 41 of the insurer’s submissions.
The loss in addition to the sum of $24,000 was a further $2,500 for past superannuation and $1,500 for tax paid on weekly benefits.
The past losses claimed accord with the primary evidence contained in business records and tax returns made available to me.
As to future economic loss the claimant and insurer agreed that the claimant is not able to undertake the additional classes offered to her and a further buffer was increased to include this loss of opportunity.
Initially the insurer allowed the sum of $168.21 weekly for a further nine years amounting to a sum of $54,346.12 and superannuation of $6,793.26. This allowance was further increased on 15 February 2024 to the sum of $172,139.38 inclusive of superannuation losses.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for economic losses accord with the evidence provided by the claimant and the insurer 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 injuries sustained in the subject accident have ongoing impact which will be life long. Pain management and ongoing psychological session has improved the claimant’s ability to undertake work and social activities The claimant has limited ongoing treatment needs and in majority she has made a significant recovery from the injuries sustained. The right elbow glass shard is likely to produce minimal discomfort. Her soft tissue injuries to neck and lower back will be aggravated from time to time by over exertion or activity.
The claimant is aware that there is a deduction of $17,245.51 from her settlement sum to reflect the weekly payments already paid to the claimant. She understands that the balance of settlement proceeds amounts to $182,893.87.
I am satisfied that the claimant is aware of her right to claim any ongoing treatment needs if approved by the insurer. In particular any future elbow surgery to remove the remaining shard of glass present.
There is no known Centrelink payback and no monies to Medicare owing under the Health and Other Services (Compensation) Act 1995 (Cwlth) from the settlement sum. If any charge is raised the insurer will pay the Medicare charge as a treatment expense in addition to the settlement sum.
I advised the claimant if a charge is raised by Centrelink this will come from the balance of proceeds coming to her.
CONCLUSION
I am satisfied the proposed settlement of $200,139.38 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 there is the deduction for past statutory payments made to her in the sum of $17,245.51 and no known Centrelink charge at this time.
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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