Insurance Australia Limited t/as NRMA Insurance v Patsalis

[2023] NSWPIC 387

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Insurance Australia Limited t/as NRMA Insurance v Patsalis [2023] NSWPIC 387

Claimant:

Michael Patsalis

insurer:

Insurance Australia Limited t/as NRMA

Member:

David Ford

DATE OF DECISION:

3 August 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 54-year-old cyclist sustained injuries to cervical spine, lumbar spine, left shoulder and both knees; also sustained psychological injuries; the accident also aggravated pre-existing right knee condition and pre-existing cervical spine condition; claimant recommended to undergo surgery to both right knee and cervical spine; claimant is a disability support pensioner; no claim for past or future economic loss; no allegation of contributory negligence; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b).

determinations made:

CERTIFICATE

1. 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 7.38 of the Motor Accident Guidelines 2017.

STATEMENT OF REASONS

INTRODUCTION

1. On 16 August 2021 the claimant was riding his bicycle on Leyland’s Parade near Acacia Lane at Burwood when the insured motor vehicle exited Acacia Lane and collided with the claimant causing him to fall to the road and sustain injuries to his cervical spine, lumbar spine, left shoulder and both knees. He also sustained psychological injuries.

2. The father of the claimant’s next-door neighbour subsequently drove him to the emergency department of Canterbury Hospital where he remained for approximately five hours. He underwent X-rays of his chest, left shoulder and right knee and a CT scan of his brain and neck. He was diagnosed with a fracture of the right patella and was prescribed endone and paracetamol. The claimant submitted the accident aggravated his pre-existing right knee condition and pre-existing cervical spine condition.

3. The insurer in their submissions, set out in detail the claimant’s history of physical and mental health conditions with reference to his cervical spine, right knee and psychological condition. The submissions detail the treatment provided by various specialist doctors who have attended upon the claimant.

4. In relation to his cervical spine, an MRI dated 29 September 2021 evidenced generalised spondylotic changes with multi-level foraminal narrowing, most severe at C5/6. The cervical canal and cord were intact. On 18 October 2021, Dr Ghahmeran recommended an anterior discectomy and fusion at C5/6 and C6/7. The insurer has declined to fund the surgery on causation grounds and the treatment dispute is currently before the medical service of the Personal Injury Commission (Commission) as it has not yet been allocated. On 9 May 2023 Dr Ghahmeran recommended an anterior discectomy and fusion at C4/5, C5/6 and C6/7. The insurer has also declined to fund the cost of such surgery.

5. In relation to the right knee, an MRI on 3 September 2021 evidenced no fracture of the patella and there were osteoarthritic changes in the medial compartment with a radial tear of the posterior horn of the meniscus as well as chondrosis (osteoarthritis) chondromalacia (arthritis) of the patella and central trochlea and a mild joint effusion. In January 2022,

   
   

   Dr Konidaris accepted the claimant’s condition worsened based on his report of pain and recommended a total knee replacement. He subsequently recommended proceeding with the realignment osteotomy instead.

6. The claimant was involved in a subsequent accident on 11 March 2022 and lodged a CTP claim with Allianz. In this accident, he sustained injuries to the left forearm and wrist pain. Allianz admitted liability for statutory benefits for a six-month period only.

7. The claimant was a disability support pensioner at the time of the accident and has not worked since a work injury in December 2016.

8. The claimant was born 1969 and is presently 54 years of age.

9. The insurer conceded the claimant is entitled to damages. The claimant has a claim for non-economic loss only. The insurer has proposed a settlement offer of $300,000.

10. The claimant advised me he wishes to accept the proposed settlement.

11. I consider this settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.

12. The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act). I have decided to approve the proposed settlement as submitted in this application. 

JURISDICTION OF THE PERSONAL INJURY COMMISSION

1. The 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.

2. I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14 (D) empowers me to determine those proceedings.

3. Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.

4. The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.

5. The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.

CONCLUSION

1. I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, taking into account the nature and extent of the claim.

2. I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.

3. I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.

4. I am satisfied the claimant is willing to accept the proposed settlement.

5. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.

RELEVANT LAW

1. Section 6.23 (2) (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.

2. 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, taking into the account the nature and extent of the claim and taking into account any proposed reductions or deductions in the proposed settlement, and

   (b)    the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement. 

PRELIMINARY CONFERENCE ON 26 JULY 2023

1. The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 26 July 2023. The claimant participated in person and the insurer was represented by Kirralee Kennedy.

SHOULD I APPROVE THE SETTLEMENT

1. I am satisfied it is appropriate in this matter to assess damages in the sum of $300,000.

2. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.