Jia v QBE Insurance (Australia) Limited
[2022] NSWPIC 404
•22 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Jia v QBE Insurance (Australia) Limited [2022] NSWPIC 404 |
| CLAIMANT: | Weiming Jia |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Shana Radnan |
DATE OF DECISION: | 22 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - settlement approval; 65-year-old male; grazing injuries to right knee wrist and elbow resolved; ongoing right shoulder rotator-tear; no surgery; 7% whole person impairment no entitlement to non-economic loss; future economic loss; buffer for impairment to intermittent earning capacity; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement is approved. 2. The proposed settlement is approved under section 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act). 3. The proposed settlement complies with clause 7.392 to clause 7.411 of the Motor Accident Injuries Guidelines. |
INTRODUCTION
On 01 July 2020 Weiming (Peter) Jia (the claimant) was a pedestrian walking across the road and was knocked down by the insured at an approximate speed of 15km. It was reported by the claimant to the police that the impact was slight and caused him to fall.
Ambulance attended and assisted by dressing the grazes to his knee and elbow. Hospitalisation was not required.
The claimant has made a claim against QBE (the insurer) of the at fault vehicle, for lump sum damages.
The insurer has accepted that the claimant had non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) he is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
Upon the determination of Dr Bentivoglio dated 11 May 2022 the claimant’s whole person impairment was not greater than 10%. This means the claimant is not entitled to recover damages for non-economic loss. I am satisfied that the medical evidence before me indicates that the opinion of Dr Bentivoglio is accurate noting the injuries sustained and the recovery as defined in the medical records and from the evidence directly from the claimant. Whole person impairment was assessed at 7%.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $35,000. The settlement offer made by the insurer in the sum of $20,000 was increased to $35,000 during the teleconference held on20 July 2022 and has been calculated as follows:
· $35,000 for future economic loss.
Because the claimant is not represented by a lawyer, his settlement must be approved in accordance with the MAI Act.
I have decided to approve the settlement.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (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.
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) continues to apply.
THE RELEVANT LAW
Section 6.23(1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
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 satisfies the timing requirements in s 6.23(1) of the Act;
(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 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
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
TELECONFERENCE ON 20 JULY 2022
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 20 July 2022. The claimant participated in person and the insurer was represented by Elveen Lal.
I discussed the details of the terms of settlement with the parties and it became apparent that the claimant had a greater earning capacity than the insurer was aware as no economic loss records had been provided or requested prior to the teleconference.
The claimant was advised of the status of his injuries and the impact on his earning capacity. The claimant informed me that in his role as a research archaeologist, he did minimal physical digging, more supervisory and the carrying of his luggage to and from sites and during the travel required was the greatest concern to him.
The claimant confirmed he currently works approximately 30 hours weekly and depending on his assignment it can be greater or lesser. He is employed on a contract and due to Covid-19 his assignment has been delayed. Now his position is to continue for a further two years.
When asked how long he was likely to work? The reply was if mentally fit probably another three to four years.
I confirmed that the settlement was not including non-economic loss as the material before me did not indicate that his injuries were over the whole person impairment threshold of 10%. He then advised me that the apart from his ongoing intermittent shoulder pain he had recovered from his injuries.
I requested details of whether he was likely to undergo surgery for the injury if his symptoms deteriorated and he confirmed with me that due to his age he considered surgery as extremely unlikely.
The claimant was not currently taking any painkillers and receiving no ongoing regular physical treatment.
The claimant was informed that the settlement amount of $35,000 would result in a payment to him of $35,000 and that the insurer confirm any Medicare liability would be paid by the insurer.
I reviewed the medical evidence provided and confirmed with the claimant that what was recorded accurately depicts his injuries and the resolution of them. The claimant confirmed he was to travel overseas soon for work and the recent approval of further physiotherapy by the insurer could be impacted by his departure overseas. The insurer confirmed upon his return in November the remainder of approved treatment would continue for the services approved.
I asked the claimant if he wished to seek legal representation and he confirmed he did not wish to he was aware that the settlement would be the finalisation of his claim for damages and that he could not come back for more at a later stage should his situation change.
I asked the claimant if he understood the settlement and the implications and he confirmed to me that he understood the nature and was accepting the terms of his own free will.
I asked if he had any question or wished to make any further comments and he said words to the effect “I am happy with the resolution of the matter.”
The insurer was also asked if any further information or statement was to be made and the representative said “No”.
The teleconference concluded with me advising I would make my decision and reduce it to writing. The parties were thanked for their assistance.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents:
· Liability
Application for Statutory Benefits dated 16 July 2020;
Application for common law damages dated 11 February 2022;
Liability notice dated 1 March 2022, and
police report dated 31 July 2020 noted both parties attended Hurstville Police station to report the incident. Event No. 75335961.
· Treating Medicals
Clinical records of Dr Ma - various: notes initial injuries as right shoulder sprain and abrasions to right elbow, wrist and knee.
Report of Dr Hamid dated 18 August 2021: reported his rotator cuff tear is not greatly affecting his quality of life. His report noted that “He feels some pain slight pain with shoulder abduction, he is able to modify his activities to put up with that.
He is happy to continue with non operative measure…”
Radiology report 29 July 2020.
Physiotherapy plans dated 31 August 2020.
Counselling plan dated 3 March 2022.
Medical certificate – various request for treatment from Dr Ma.
· Medico-Legal Reports
Dr Bentivoglio qualified by the insurer, in his report dated 1 May 2022 noted the following:
“History of accident
This gentleman was a pedestrian and was walking along a road and was in the process of crossing the road at a speed bump. He was hit on the left side and knocked to the ground by a car. The accident occurred around 6:40am on a dry day in a 50km speed zone. As a result of being knocked to the ground, he sustained abrasions and bleeding to his right elbow and right knee and subsequently developed symptoms in his right shoulder. He advised me he had not had a problem with those areas previously.
Treatment
He attended his local doctor in Hurstville. He underwent a course of physiotherapy. This did improve his knee symptoms. Neither the elbow wounds nor the knee wounds became infected and the wounds healed uneventfully. He did have physiotherapy to his right knee and right shoulder. He felt it was beneficial to both areas. With his ongoing symptoms, he eventually had an MRI scan taken of his right knee and right shoulder. He was referred to see a specialist as a result of this. He saw a specialist for his knee probably only on one occasion and no treatment was instituted for him as a result of this. His knee symptoms eventually settled and no longer trouble him. Similarly, his right elbow symptoms have settled completely and no longer trouble him.”
“He was seen by Dr Trantalis. He viewed an MRI scan taken of his shoulder. He did not institute any specific modality of treatment although he advised this gentleman if his symptoms did not settle to an acceptable level for him, there was a surgical solution. He no longer sees Dr Trantalis on a regular basis. He is currently not having any active treatment.” p2
“Current symptoms
It is only his right shoulder that troubles him now. He only occasionally has pain present in his shoulder. The pain is predominantly over the anterior aspect of his shoulder. He feels he has regained full movement in his shoulder but not full strength. He finds certain movements cause him to experience some pain in his shoulder. He avoids stretching out to get objects using his right upper limb. He finds this is uncomfortable for him. He does not notice any crepitation present on moving his shoulder. He does not feel as though there has been any improvement in his shoulder symptoms recently.” p3
“Diagnosis and opinion
This gentleman was involved in a motor vehicle accident where he was knocked to the ground. He sustained soft tissue injuries to his right elbow and right knee but these have now resolved. There is a small scar present over the medial aspect of his right elbow measuring 1.5cm in diameter that was pigmented but not attached to any underlying tissues. With his shoulder, he has evidence of damage to his rotator cuff tendon in his right shoulder as well as aggravating some pre-existing degenerative changes present in his shoulder. He has lost some degree of movement present in his shoulder. I would agree with his specialist's assessment that if this gentleman's symptoms do not settle to an acceptable level for him, there is a surgical procedure that can be done. It would appear that his symptoms, however, have settled to an acceptable level for him at this stage.” p4
· Settlement documents
claimant’s reply to request for particulars
signed Agreement for Release 20 July 2022.
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant is currently 65 years of age. He was 63 years at the date of the accident.
The claimant was walking along McMahon Street at Hurstville near a speed hump when the insured collided with him causing him to fall onto his right-hand side grazing his right knee, elbow and wrist. He also sustained shoulder sprain and injury to rotator cuff.
Ambulance attended the accident scene. Police were delayed so the parties individually attended upon Hurstville Police station to report the incident.
Liability was admitted in the claimant’s common law claim on 22 September 2021.
Pre-existing injuries and unrelated conditions
The clinical notes of Dr Ma were reviewed. The records reveal the following pre-existing injuries and conditions:
(a) 2011 Impaired glucose tolerance;
(b) 2012 Hypertension;
(c) 2015 neck pain and referred arm pain;
(d) Multilevel degenerative spondyloarthropathy, and
(e) 2018 Diabetes Mellitus.
INJURIES
Following the accident, the claimant attended upon his doctor Dr Ma at Hurstville Town Medical centre.
As a result of the accident the claimant claimed he sustained the following injuries:
(a) graze injury to knee;
(b) graze injury to right elbow;
(c) graze injury to right wrist;
(d) injury to right shoulder partial rotator cuff tear, and
(e) psychological injury.
The claimant was regularly reviewed by Dr Trantalis shoulder and elbow specialist and Dr Hamid, orthopaedic fellow for Dr Trantalis at Kareena Private Hospital. Report of the claimant’s progress took place on 17 February 2021, 12 November 2020, and 7 October 2020,
Physiotherapy was undertaken and has been successful in reducing symptoms and for scapular strengthening exercises.
Having reviewed the medical evidence I am satisfied that the claimant’s injuries would not exceed the statutory threshold and that non-economic loss would not have been available to the claimant.
I accept that the claimant is still symptomatic from time to time as it relates to his right shoulder rotator cuff tear. Other than this injury, all others have healed and the claimant is currently undertaking psychological treatment for anxiety when crossing roads. This concluded on 8 July 2022 with good results as reported by allied Health in March 2022.
The injuries sustained have resulted in a claim for economic loss on the basis that the injuries have impacted on the claimant’s future earning capacity. This is determined below.
ECONOMIC LOSS
In his Application for Personal Injury Benefits, the claimant indicated that the impact of using his right arm carrying equipment and luggage to sites would likely impact on his earning capacity.
The claimant confirmed his nett income is now approximately $60,000 per year. He is currently working part time, usually 30 hours a week.
The insurer accepted that the claimant’s injuries are likely to impact his earning capacity when symptoms flare up and the necessity to rest from time to time, thus impacting on his earning capacity.
Accordingly, the insurer has allowed a buffer for future loss on the basis that the accident-related injuries to his right shoulder are likely to impact on his future earning capacity from time to time.
Whilst the claimant is 65 years of age, the insurer accepted that the claimant’s most likely future circumstances but for the injury (as required by s 4.7 of the MAI Act) is that the claimant would continue to fulfil his contracted position with the University of Sydney as a research fellow in archaeology and that his ongoing injuries will impact on his future earning capacity allowing a buffer for such losses.
The parties have agreed on a future economic losses in the sum of $35,000.
SHOULD I APPROVE THE SETTLEMENT?
I am satisfied that the amounts allocated in the settlement for future economic losses accords with the evidence provided by the claimant in this matter.
The claimant was working initially on an unpaid basis with Sydney University at the time of the accident and subsequently obtained a paid contract post-accident. I accept there was no economic loss claimed for the past.
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 The 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 his earning capacity and, if so, whether that loss or diminution will result in economic loss.
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 case for the award of a buffer.
I consider the agreed buffer $35,000 for the future impairment of the claimant’s earning capacity is appropriate having regard to information before me.
I am satisfied that the claimant is aware of his right to have his reasonable treatment paid by the insurer if approved as reasonable and necessary. Mr Lal advised 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.
I advised the claimant if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, he should refer the matter to the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
CONCLUSION
I find the timing requirements of s 6.23(1) of the MAI Act had been satisfied. The settlement has taken place more than two years since the date of accident.
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment 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 he could seek legal advice but chose not to avail himself of legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that he 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 his decision to accept it was of his own volition.
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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