Insurance Australia Limited t/as NRMA Insurance v Rowe
[2023] NSWPIC 661
•11 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Rowe [2023] NSWPIC 661 |
| CLAIMANT: | Patrice Mary Rowe |
| INSURER: | NRMA |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 11 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval $70,008.13; 71-year-old female; past and future economic only; future loss of one day per week for 12 months; whole person impairment (WPI) 6% for psychological injuries; physical injuries WPI 0%; left shoulder & left hip initial injuries of bruising healed; olfactory impairment 3% WP; most injuries healed; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval 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 7.37 of the Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 16 December 2020, Patrice Mary Rowe (the claimant) was the driver of a vehicle which was struck by the insured crossing onto her side and colliding head on. The vehicles were travelling in a 100km zone.
The claimant sustained injuries in the accident.
Police and ambulance were called.
The claimant was then conveyed by ambulance to Canberra Hospital and later that day discharged.
Ambulance records (document A) confirmed the claimant’s initial injuries so too the hospital discharge records.
Police attended the scene and an event report E77407952 dated 21 January 2021 was created.
The claimant remained in the care of her general practitioner Dr Ehmann (document A14) thereafter for review and management.
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 3 October 2022 (document A7). By liability Notice (document A3) dated 13 December 2022, 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) multiple bruises;
(b) lower abdominal wall contusions;
(c) contusion left arm, thigh and face;
(d) right upper chest;
(e) minor lacerations shin;
(f) Costochondritis, and
(g) psychological injuries – post-traumatic stress disorder and insomnia
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) she is entitled to payment of reasonable treatment if required.
The insurer relied upon the medico-legal assessment undertaken by Dr Andrew Keller and his report dated 29 November 2022 (A8) and supplementary report dated 22 December 2022 (A9) to assess the nature of injuries. By letter dated 8 September 2023 (document A4) the insurer advised the claimant that it had formed the view her injuries did not exceed 10% whole person impairment. The claimant did not challenge this finding and conceded most of the injuries sustained had now fully resolved.
Further medical assessments were undertaken by Dr Payten (A10) and Dr Das (A11)
The claimant and the insurer have agreed to settle the claim for lump sum damages in the sum of $70,008.13. The initial application referred to a settlement offer made by the insurer on 16 June 2023 in the sum of $45,000. The insurer increased its offer to $70,008.12 after further negotiations between the parties took place after the preliminary conference of 8 August 2023. The claimant was directed to produce further evidence of economic loss and current pay rates. The insurer agreed to revisit their offer to take into consideration the changed pay rates.
On 8 December 2023 the insurer confirmed the basis of this latter offer was as follows:
(a) past economic loss $49,883.34:
(i)weekly payments $12,400.84
(ii)$151 weeks loss $216.50 $32,691.50
(iii)past superannuation (12%) $3,923
(iv)tax paid on statutory benefits $868
(b) future economic $20,124.79:
(i)$17,933.34
(ii)superannuation (12.22%) $2191.45.
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.
I am a 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 these proceedings.
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 sections 6.23(2) and (3) of the Act before the Personal Injury 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.”
Preliminary conference on 8 August 2023
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 8 August 2023. The claimant participated in person and the insurer was represented by Vicki Zogopoulos.
A discussion as to the claimant’s ongoing symptoms of pain as it affected her left side. She continues to suffer pain impacting on her sleep and fatigue as a consequence. She avoids driving was minimal.
She mentioned that the work undertaken as a casual teacher had been impacted by her anxiety when driving. She referred to regular flashbacks and interrupted sleep from time to time.
She continues to suffer left sided pain and this impacts on her sleep so she fatigues easily.
Whilst she had been able to participate in one day a week casual employment, she had been offered two days a week for the 2024 year and felt her symptoms prevented her from participating at this level.
The claimant advised she could get confirmation of the offer of employment.
The claimant was advised in this conference that if she had any concerns about the ongoing consequences of her injuries that she could request a further period to seek medical advice and also had an opportunity to seek legal advice if she wished.
I was informed that the claimant did not wish to seek and further investigations medical or legal.
Directions were made that the claimant obtain the additional information and that a further teleconference would be held on 13 October 2023
Preliminary Conference held 13 October 2023
The claimant produced a letter from her employer confirming the offer of employment and the claimant’s inability to take up the position.
The claimant also advised that whilst she had provided payslips to the insurer her rate had increased and she sought additional time to obtain the latest payslip with the increased rate expected within 14 days. I asked if the parties were able to recalculate the settlement sum based on this increased weekly loss and further directions were provided to the parties.
During this videoconference, the claimant confirmed that she understood the nature of the settlement. Was aware that her injuries did not exceed the statutory threshold of 10% whole person impairment and that she was not entitled to non-economic loss.
I asked the claimant if she accepted the new offer as intended to be calculated with the updated figures and that she could confirm on the commission portal once the updated figures were in, her acceptance of the increased offer. The claimant responded with words to the effect:
“I will confirm the figures and intend to accept the updated offer once the calculations are up to date thank you.”
I asked the claimant if she understood the nature of the amended settlement terms and its finality and if it was being undertaken of her own free will. She responded to me:
“I understand the nature of this settlement, I’m under no pressure and it is of my own free will”.
I asked if she understood that that from the settlement a sum of $12,400.84 would be deducted as the insurer had paid this sum as statutory weekly payments to date. I was informed;
“I understand that this sum will be deducted from the settlement moneys.”
The insurer was also asked if any further information or statement was to be made and Ms Zogopoulos said “No member I don’t have anything further to add”.
The preliminary conference concluded with me advising the parties that I would upon the receipt of the updated settlement offer, executed acceptance and further submissions determine the matter.
Directions were issued on this occasion that the parties were to upload the fresh settlement documents by 17 November 2023. A further request was made to clarify the terms of settlement and the insurer uploaded a further amended terms of settlement on 8 December 2023.
Whilst the insurer uploaded the amended documents on 8 December 2023 with clarification of the terms, the letter remained dated 8 November 2023 and the claimant confirmed her agreement with the terms as contained in the letter on 8 December 2023 via email.
Amended terms of settlement dated 8 November 2023
The claimant confirmed she and the insurer had come to an agreement that settlement was agreed in the sum of $70,008.13. The sum represented past economic loss in the sum of $49,883.34 and future economic loss of $20,124.79 with a deduction of prepaid statutory weekly payments in the sum of $12,400.84 leaving the claimant to receive a net balance of $57,607.29.
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 dated 16 December 2021;
application for common law damages dated 3 October 2022;
liability notice dated 13 December 2022, and
whole person impairment letter dated 31 January 2023 (document A16).
· Treating medical records:
clinical records of Canberra Hospital (document A12);
clinical records (document A13);
general practitioner records (document A14);
clinical records – psychologist (document A13);
medical imaging (document A15);
deport Matthew Austen dated 16 August 2023, and
report Heidi Ehmann dated 24 September 2023.
· Medico-legal opinion
report Dr Andrew Keller medico-legal dated 29 November 2021(document A8);
supplementary report Dr Keller dated 22 December 2022 (document A9);
report Dr Robert Payten dated 19 December 2022(document A10), and
report Dr Das dated 10 January 2023 (document A11).
· Economic loss material:
letter from employer (documents A18 and A19);
letter from employer evidencing leave taken dated 13 September 2023;
superannuation records (document A20);
claimant’s Notices of Assessment (document A23);
certificates of capacity (document A11);
statutory payments made (document A5), and
letter from Ms Duncan dated 28 August 2023.
· Settlement documents:
initial draft settlement agreement (document A25), and
amended settlement agreement dated 8 November 2023.
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant confirmed she sustained injury in the accident. Was taken by ambulance to Canberra Hospital She was discharged the same day after scans revealed abdominal bruising and no specific injury.
She was deemed unfit for work for three months.
As a consequence of the trauma, she developed symptoms of anxiety and saw a psychologist for post-traumatic stress disorder. She undertook nine session of therapy and continues on anti-depressants as she had this regime prior to the accident.
The claimant continues to suffer ongoing exhaustion when she works in her role as a teacher. She is currently working one day per fortnight. She cannot manage to increase her work to two days a week as recently requested because of the exhaustion.
She complained of her left shoulder aching when she sleeps. During the first teleconference she confirmed that her left hip is painful after prolonged sitting or on increased activity. She continues with chiropractic treatments to manage her discomfort.
She has impairment to her sense of smell and this affects her sense of taste as well. She has lost her enjoyment of food as a result. She struggles with maintaining a healthy weight.
The claimant confirmed she attends a physiotherapist Mr Austen from time to time.
INJURIES
The clinical records produced in the matter confirm that the claimant initially sustained the following injuries:
abdominal haematoma;
left shoulder pain and restriction of motion;
reduced sense of smell and taste, and
psychological sequelae.
Dr Keller assessed the claimant for physical injuries sustained at the request of the insurer, and opinion on permanent impairment on 28 November 2022. The claimant reported to him anxiety when in cars or driving, an occasional panic attack, intermittent daily pain affecting the left hip and thigh. The pain can last for a number of hours and was rated 3/10. Her pain is aggravated by sleeping on her side and walking.
She reported tolerates of sitting and walking for 30 minutes, standing several hours, lifting 10kg and driving 90 minutes.
Upon examination D Keller noted:
(a) mild symmetrical restriction of motion in cervical spine consistent with degenerative spondylosis.
(b) Mild restriction of motion in both shoulders, worse on right compared with the injured left, consistent with age-related degenerative changes.
(c) Full symmetrical range in lumbar spine.
(d) The abdominal haematoma has resolved.
(e) The accident caused a temporary exacerbation of pre-existing left shoulder degeneration.
(f) There is a reduced sense of smell.
(g) He determined physical conditions had stabilised. (IB45-46)
(h) She did not require any future treatment.
(i) In relation to future capacity to work he reported:
“In my opinion, Ms Rowe has no physical restrictions relating to the accident that affect her capacity to work up to full-time hours”. (IB48)
Dr Keller confirmed upon review of MRI scan of left hip dated 14 November 2022, that the claimant’s tendinopathy and bursitis of the left hip, a minor injury if at all related to the accident two years earlier that:
“This report does not lead me to alter the opinion expressed in my report”. (IB55)
Dr Robert Payten, an ear nose and throat specialist assessed the claimant at the request of the insurer, on 19 December 2022 confirmed her reported symptoms:
(a) normal taste for sugar and salt;
(b) food tastes bland;
(c) most food tastes unpleasant so reduced consumption;
(d) smell is impacted most cannot be identified, only very strong smells, and
(e) diagnosis of cacosmia and decreased olfaction.
The facial trauma cause by the explosion of the airbag links her current symptoms to the motor accident. There is no treatment available. His assessment of whole person impairment was 3% for olfaction. (IB67)
Dr Hillol Dias – consultant psychiatrist assessed the claimant at the request of the insurer, for psychological injury on 29 December 2022. She reported intermittent flashback. It could be triggered by news on TV or video games or sounds of car crashes. She reported feeling on edge and “a lot more anxious”. (IB 74)
The claimant reported with undertaking an insomnia course, mindfulness course and post-traumatic stress disorder course online she felt “it did help”.
Other symptoms apart from fatigue, was sadness as a consequence of her friend being injured as well and a sense of guilt. He opined she “appears to be in a stable state of partially remitted condition of post-traumatic stress disorder, along with an element of grief and sadness about it all”. (IB76).
Dr Dias determined 6% whole person impairment. (IB81)
Having reviewed the medical evidence I am satisfied that the claimant’s injuries would not exceed the statutory threshold of 10% whole person impairment. I am satisfied that the claimant had no entitlement to damages for non-economic loss.
I accept that the claimant suffers a very occasional flare up of chest wall pain and this is likely to impact on her ability to teach Pilates classes when this occurs. In majority her injuries have fully resolved.
ECONOMIC LOSS
Past economic loss
At the date of the accident the claimant was working part-time as a casual teacher earning $433 net per week. She was working two days per week.
Post accident when she returned to work she only performed one day each week as she was unable to return to the pre-accident full-duties due to pain.
The loss was calculated at the rate of $216.50 per week for 151 weeks which totalled $32,691.50 in addition to the statutory payments made in the sum of $12,400.84.
The loss of superannuation amounted to $3,923.
Tax paid on statutory weekly payments amounted to $868.
Total past losses were agreed in the sum of $49,883.34.
Future economic loss
The claimant is currently aged 71 years and had intended to retire at the beginning of 2024. She was approached by the principal of Taralga School to continue on for an additional year working two days per week during the 2024 school year. Due to the impact of her injuries, the claimant is unable to take up the position.
The insurer accepted that this would result in future economic loss to the claimant. Upon receipt of updated wage rates, the loss was calculated at $414.50 net per week representing the additional day the claimant is unable to work.
The calculation of loss amounted to $$414.5 x 50.9 =21,098.05 less 15% for vicissitudes = $17,933.34. Superannuation was added in the sum of $2,191.45.
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 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 healed and any ongoing impact is now minimal. The claimant has no ongoing treatment needs and in majority she has recovered fully from the injuries sustained. The only ongoing symptom reported is very minimal chest wall pain aggravated from time to time by over exertion or positional sleeping pattern.
The past economic losses were supported by medical certificates for the period immediately post accident and the claimant received statutory benefits at the time. An further allowance was made for losses to date and for a further 12 months. I am satisfied that the past and future losses accord with the claimant most likely circumstances but for the accident.
The claimant is aware that from her settlement the insurer will deduct the already paid statutory benefits in the sum of $12, 400.84 and that she will receive the balance in sum of $57,607.29.
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.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR 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.
I am satisfied that the claimant is aware of her right to claim any ongoing treatment needs if approved by the insurer.
There is no 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 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 $12,400.84.
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.
CONCLUSION
I am satisfied the proposed settlement of $70,008.84. 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 $12,400.84 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.
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