Manchinella v Allianz Australia Insurance Limited
[2024] NSWPIC 35
•30 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Manchinella v Allianz Australia Insurance Limited [2024] NSWPIC 35 |
| CLAIMANT: | Dheeraj Manchinella |
| INSURER: | CIC Allianz Insurance Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 30 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant involved in an accident whilst attempting to enter a taxi; the claimant injured his neck, lumber spine, groins and wrists; independent whole person impairment assessment not greater than 10%; proposed settlement includes past and future economic loss and superannuation; insurer able to negotiated workers compensation payback; claimant paid substantial past economic loss; claimant returned to fulltime work; proposed settlement will net the claimant $130,066.80 with entitlement to access CTP care for future treatment; Held – the proposed settlement is approved under section 6.23 (2)(b); proposed settlement complies with clause 7.38 of the Motor Accident Injuries Guidelines 2017. |
| DETERMINATIONS MADE: | CERTIFICATE The proposed settlement is approved under s6.23(2)(b) of the Motor Accident Injuries Act 2017. The proposed settlement complies with cl7.38 of the Motor Accident Injuries Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Mr Dheeraj Manchinella was injured in an accident on 12 April 2018. He was with two work colleagues. They hailed a taxi which stopped to collect the trio. Before Mr Manchinella could properly enter the vehicle, the driver sped off dragging him for around 30 – 80 metres before stopping.
Mr Manchinella has made a claim pursuant to the Motor Accident Injuries Act 2017 (MAI Act) against the insurer, CIC Allianz Insurance Limited.
The insurer wholly admitted liability for the claim for common law damages.
The insurer. Via CTP Care, has accepted that Mr Manchinella is entitled to the payment of reasonable treatment and care for the rest of his life for his accident-related injuries.
Mr Manchinella and the insurer have reached an agreement as to settlement of the claim for damages.
Because Mr Manchinella is not legally represented, his settlement must be approved in accordance with the MAI Act.
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration.
The insurer has conceded Mr Manchinella is entitled to damages for past and future economic loss.
THE RELEVANT LAW
Section 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 the requirement of the MAI Act or the Guidelines.
Clause 7.37 for the Guidelines states I must be satisfied that the proposed settlement is just, fair and reasonable and within the range of likely potential damages that would be assessed by a member taking into account the nature and extent of the claim having regard to the claimant’s injuries, disabilities, impairments, and losses sustained taking into consideration, any deductions in the proposed settlement. Also, the claimant must understand the nature and effect of the settlement.
DOCUMENTS CONSIDERED
I have considered the totality of the material contained in the insurer’s submission and attachments. I further have considered the report by Dr Newlyn which was posted on the portal after the initial application.
REVIEW OF THE EVIDENCE
Amongst the application is a detailed statement by Mr Manchinella. He says once the taxicab stopped, he slipped forward into the vehicle and hit his head on the headrest which stunned him for a few seconds. He gathered himself together and returned to his place of work. He did report the incident to his manager. After a couple of hours, he felt uneasy and tense.
After work, he essentially went to bed. He noticed pain and stiffness along the right side of his body. He took Nurofen to help his sleep.
The next morning, he had trouble showering and dressing. His wife was concerned so she drove him to the nearby medical centre. Dr Stephen Vo diagnosed concussion and whiplash. He was prescribed medication and referred for physiotherapy within the same practice.
He did not return to work for three days and on the fourth day, he returned to consult with Dr Vo. The doctor diagnosed lumber and thoracic spinal injuries.
Since the accident, Mr Manchinella has undergone many treatment procedures and surgeries to his neck, lumber spine, left and right groin areas and wrists.
He described his mental health has significantly deteriorated, suffering from bouts of depression.
Numerous medical reports have been commissioned by both Mr Manchinella and the insurer. He has also been assessed at the Commission for whole person impairment which resulted in a not greater than 10%. As such he is not entitled to damages for non-economic loss.
Consultant Professor Allan Molloy examined Mr Manchinella at the request of his then legal representative and prepared a report which is dated 22 March 2019. The doctor’s expertise is in pain management and recommended participation in a multidisciplinary pain management. Mr Manchinella participated in an ADAPT Pain Management Program at Royal North Shore Hospital in October 2019.
Dr Jeff Bertucen, consultant psychiatrist, prepared a medico-legal report at Mr Manchinella’s request dated 2 April 2019. He opined Mr Manchinella suffered a chronic adjustment disorder with features of depressed mood. He also recommended regular and aggressive psychiatric treatments.
A report was prepared at the request of Mr Manchinella by orthopaedic surgeon Dr Y Kai Lee dated 31 March 2020. The doctor diagnosed whiplash injury to Mr Manchinella neck, possible thoracic outlet syndrome, right hip, right shoulder rotator cuff injury and right wrist injury.
On behalf of Mr Manchinella, Dr Oldtree Clark diagnosed a post-traumatic stress disorder.
The insurer arranged for Mr Manchinella to be examined by occupational physician D Robin Mitchell on 12 October 2020 and most recently, on 26 September 2023. Initially, Mr Manchinella reported to the doctor, widespread pain throughout his neck, both arms and wrists, lower back, and both legs.
In his recent examination, and after review of the updated documentation, the doctor noted the comprehensive treatment Mr Manchinella has undergone. Dr Mitchell diagnosed soft tissue injuries of his neck and lower back with reduced movement, together with swelling and weakness in the right wrist.
On 8 January 2021, Dr Tom Newlyn assessed Mr Manchinella at the request of the insurer via a telehealth examination. After taking a detailed history of the accident, treatment and reported symptoms, the doctor opined, Mr Manchinella meets DSM-5 diagnoses criteria for a principal diagnoses of an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
ECONOMIC LOSS
On the day of the accident, Mr Manchinella had started a new job which he was excited about. He had been headhunted as a settlement officer with Maia Financial.
After the accident, he was certified unfit to work and made a claim pursuant to his workers compensation rights. His wages were paid from 12 April 2018 to 4 December 2022 which in total amounted to $254,250.21. The insurer has reached an agreement with the workers compensation insurer to repay them $200,000 which is to be deducted from the proposed settlement sum.
Since December 2022, Mr Manchinella has returned to full time work, firstly with Japanese Bank and then with Export Finance Australia as a portfolio administration officer. He works from home four days a week and attends the office one day a week.
THE PROPOSED SETTLEMENT
The proposed settlement is made up of $200,000 for past economic loss, $23,000 past superannuation, future economic loss $70,000 and $37,066.80 for paid costs and disbursements.
Mr Manchinella was examined at the Commission for an assessment of whole person impairment. These assessments resulted in certificates being issued for whole person impairment not greater than 10%. As such there is no entitlement to damages for non-economic loss.
I asked Mr Manchinella if he understood the requirement of an assessment of whole person impairment of greater than 10% to access damages for non-economic loss. He confirmed he understood this requirement and accepted the Commission’s findings.
Mr Manchinella has advised he has not received any government benefits since the accident. As such the only deduction is the workers compensation payback.
Ultimately, the settlement result is, Mr Manchinella will receive clear in his hand $130,066.80 from the proposed settlement.
At the final telephone conference, Mr Manchinella confirmed he understood, if I approved the proposed settlement, it would be a final decision and that he is precluded from seeking further compensation for economic loss in the future.
He confirmed to me he understood this and was happy to accept the offer knowing he is entitled to reasonable treatment for accident-related injuries for the rest of his life which will proceed via CTP Care. The insurer has agreed to assist Mr Manchinella with this transition.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied the proposed settlement should be approved.
The amount is within the likely range of potential damages that would be assessed by a member considering the nature and extent of Mr Manchinella’s claim.
The proposed settlement is just, fair, and reasonable. I have had regard to Mr Manchinella's injuries, disabilities, impairments and losses and I have taken into consideration the repayment to the workers' compensation insurer.
Mr Manchinella understood the nature and effect of the settlement.
I approve the proposed settlement of this claim and I am satisfied that the settlement complies with the applicable requirements of the MAI Act and Guidelines.
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