McPherson v AAI Limited t/as GIO

Case •

[2022] NSWPIC 21

•

14 January 2022
CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

McPherson v AAI Limited t/as GIO [2022] NSWPIC 21
CLAIMANT: Kyle McPherson
INSURER: AAI Limited t/as GIO
MEMBER: Belinda Cassidy
DATE OF DECISION: 14 January 2022
CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act2017 (the 2017 Act); damages claim; approval of settlement under section 6.23 of the 2017 Act; claimant self-represented; settlement of $77,000 for past loss of earnings and future loss of earning capacity; injury; soft tissue injury neck, fractured rib, bruising; return to full duties within 3 weeks, development of chronic pain condition; work activities varied but no loss of hours or diminution in wages; referred for medical assessment; WPI assessed at 5%; Held- settlement approved; no matter of principle.
DETERMINATIONS MADE:

1.     The claimant and the insurer have agreed to settle Ms McPherson’s claim for the sum   of $77,000.

2. The proposed settlement is approved in accordance with section 6.23 of the Motor Accident Injuries Act 2017.

INTRODUCTION

Summary of the claim

  1. On 27 July 2018, Ms Kylie McPherson (the claimant) was a passenger in a car driven by her ‘L’ plate daughter when an oncoming vehicle turned towards them and ‘T- boned’ Ms McPherson’s vehicle.

  1. Ms McPherson has made two claims against GIO, the third-party insurer of the oncoming vehicle (the insurer):

(a)a claim for statutory (income support and treatment) benefits, and

(b)a claim for lump sum compensation or damages.1

  1. GIO has paid Ms McPherson her statutory benefits, accepts she has non-minor injuries and was not at fault and so will continue to pay benefits for her accident- related treatment and care needs. GIO has accepted liability for the damages claim2 and has agreed with Ms McPherson on a lump sum to settle that claim.

  1. Because Ms McPherson does not have a lawyer representing her, the settlement must be approved in accordance with the relevant provisions of the Motor Accident Injuries Act 2017 (the MAI Act).

  1. GIO referred the settlement to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority on or about 11 February 2021.

  1. The Personal Injury Commission (the Commission) commenced operation on 1 March 2021 and I am a Member of the Motor Accidents Division of the PIC.

  2. Schedule 1 of the Personal Injury Commission Act 2020 provides:

    (a)DRS is abolished - clause 3.

    (b)The DRS matter in this claim is pending proceedings – clause 14B(1).

    (c)I am empowered to assess the claim dispute – clause 14B(3).

    (d)The Motor Accidents Compensation Act 1999, the Motor Accidents Compensation Regulation and the Motor Accident Guidelines continue to apply – clause 14B(4)(c).

  3. The matter was referred to me and I have held three teleconferences with Ms McPherson and Ms Adrianna Papaspiros of Suncorp Legal representing GIO.

  4. The final settlement amount is the sum of $77,000 and I have decided to approve the settlement.

LEGISLATIVE FRAMEWORK

  1. Section 6.23 of the MAI Act says:


1 A copy of the application for statutory benefits is document A3 and A4 in the portal and is dated 6 August 2018. I do not have a copy of the claimant’s application for common law damages.

2 An emailed letter dated 15 April 2020 wholly admits liability for the claim and is document AD10 in

the portal.  

(1)A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

(2)A claim for damages cannot be settled unless—

(a)    the claimant is represented … by an Australian legal practitioner, or

(b)    the proposed settlement is approved by the Commission.

(3)The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.

  1. Clause 7.37 of the Motor Accident Guidelines3 (the Guidelines) says that in considering the settlement I must consider whether:

    (a)the proposed settlement satisfies the timing requirements in section 6.23(1) of the MAI 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 (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, and taking into account any proposed reductions or deductions in the proposed settlement;

    (c)the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and

    (c)the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.

REVIEW OF THE EVIDENCE

Treating material and evidence

  1. According to the claimant’s application for personal injury benefits, the claimant’s injuries were:

    (a)severe bruising to the right hip;

    (b)severe bruising to the right lower arm;

    (c)bruising down right leg;

    (d)stiffness and pain to the left side of the chest (front and back);

    (e)anxiety, emotional distress, painful to breathe;

    (f)pain across stomach, and

    (g)severe shock – fainting at scene.

  2. The claimant’s general practitioner (GP), Dr Lois Oliver issued a certificate of capacity on 30 July 20184. She diagnosed left hip haematoma, left elbow haematoma, right


3 The current version is version 8.1 effective December 2021.

4 Document A5 in the portal.

shoulder injury and right rib fracture. She prescribed rest, pain relief and a gradual return to activities of daily living. The claimant was given two weeks off work. There is a further medical certificate from Dr Oliver dated 25 September 2018 certifying the claimant unfit to work from 24 September to 10 October 20185.

  1. There is a referral from Dr Oliver to the Happy Spine (chiropractors) dated 14 August 2018, an allied health recovery request from the Happy Spine dated 25 April 2019 requesting chiropractic treatment, massage therapy and pilates. Noting the claimant was having trouble with work and had three fractured ribs.6 A letter from the Happy Spine to the claimant’s GP dated 14 February 2020 noted the claimant ‘continues to aggravate her back and neck at work’.

  2. Also in the records is a letter from Dr Oliver to GIO dated 19 May 2020.7 She noted that the claimant’s neck symptoms had deteriorated over the last three months and that she was ‘getting bilateral cervical radiculopathy’ which was causing constant pain and subjective weakness in her hand’, although no sensory loss. She attached an MRI report and requested an opinion from Dr Shaun Clarke a pain specialist or proceeding to neurosurgical opinion.

  3. The GIO appears to have queried this because the next document provided to me is a letter from Dr Oliver to Suncorp dated 7 July 20208 explaining that as of that day the claimant was having left sided cervical pain radiating down the left arm in C6/7 distribution with some pins and needs but no weakness and no loss of power in the upper limbs and present equal reflexes. There was some restriction of movement and some pain at the end of movement. Dr Oliver noted a disc bulge at C6/7 but overall degenerative changes from C4-T1 and the claimant had previous episodes of neck pain. Dr Oliver was not certain there was sufficient evidence of neurological impairment but felt it was more likely the claimant had developed a chronic pain syndrome in the neck which was not present before the accident.

  4. After the application was lodged, the claimant provided me with a lengthy report from Dr Shaun Clark aneasthetist and pain specialist dated 30 July 20209. In this he says:

    (a)He could not find any ‘objective motor signs’ but he had reviewed the MRI and noted there was a significant disc protrusion and that there is C6 and C7 radicular pain.

    (b)She has tension type headaches rather than headaches coming from the neck area.

    (c)Her function is pretty good but his may be because she had been off work for a period.

    (d)He recommended she buy a pain book and that Ms McPherson should see a clinical psychologist.

    (e)Of importance he says ‘A medium and long term plan regarding employment is the priority’ noting that the claimant had reduced her pain levels by 50% after having a few weeks off work.

    (f)He suggested she cease having chiropractic manipulations but that she have input from a physiotherapist.


5 Documents A5 and A7 in the portal.

6 Happy Spine documents are documents A6, A8 and A9.

7 Document A11 in the portal.

8 Document A12 in the portal.

9 Notes from Dr Clarke are provided in document AD3 in the portal.

(g)Also of significance is his note ‘There is very clear pathology in the C5/6 and C6 motion segments. If symptoms progress or weakness supervenes, then I think that would be the time to refer directly to the Neurosurgeons.’

(h)The claimant became teary when recounting ongoing pain and stress associated with this claim (and the loss of her husband).

(i)Dr Clarke’s diagnosis is of neck pain and radiation following left sided neck injury with immediate pain and paraesthesia in both arms.

(j)The claimant’s role as an assistant in nursing aggravates her pain. She struggles with housework and has poor sleep due to pain.

(k)The claimant is taking Endone four nights a week and Endep to help her sleep.

  1. In a second report dated 26 August 2020 he recommended an exercise physiologist be engaged, approved a trial of acupuncture but otherwise indicated he could not provide any further assistance.

The insurer’s medico-legal evidence

  1. The insurer obtained a report from Dr Andrew Keller occupational physician dated 20 July 202010.

  2. Dr Keller took a history of the accident, the claimant’s immediate transport to hospital by ambulance and her treatment in the first few weeks after the accident.

  3. The claimant disclosed previous episodes of neck pain and stiffness 10 years ago with occasional chiropractic treatment thereafter.

  4. The claimant complained to Dr Keller of weekly headaches, neck pain radiating into both shoulder which is constant and 8-10 out of 10 in intensity and intermittent pins and needles in her left upper limb. She was examined with normal range of motion in her neck with pain, normal range of motion in the right shoulder but some restriction in the left.

  5. Dr Keller’s report dealt with her treatment, (reasonable and necessary and appropriate) fitness for work (fit for normal duties) and domestic assistance (none required). He diagnosed soft tissue injuries to the neck aggravating mild degenerative changes.

  6. He expressed the opinion the claimant had a 0% whole person impairment assessment.

The claimant’s evidence

  1. The claimant confirmed at the first teleconference that the bruising she sustained in the accident has settled down, that her chest injury has largely settled but that she still experiences chest pain when her back and neck flare up.

  2. The claimant told me that her neck and upper back pain is the most troublesome. She says the initial symptoms were worse, that she has improved since then, but she still has constant pain and that she is subject to flare ups of worse pain. She says her neck pain radiates to both shoulders and she has intermittent pins and needles in her left arm and hand. She says she has ongoing headaches and that sometimes they are very severe. She says she has very low mood and insomnia and wakes because she is uncomfortable (Ms McPherson became emotional at this point).

10 Document A14 in the portal.

  1. Ms McPherson said she has seen a Dr Sean Clarke at her own expense because the insurer refused to pay for this. Dr Clarke is a pain specialist and did some tests and a bone scan and gave her advice about not having a steroid injection because of an issue with damage to her spine being too close to her spinal cord.

  2. Ms McPherson said she had seen an exercise physiologist and that GIO had paid for this and that she has been working on building her strength but that sometimes she can do her exercises and at other times she just cannot, and she identifies this is a vicious circle.

  3. Ms McPherson said she works in aged care and commenced that work in 2013. She says she loves her job and it is very rewarding. She says she has worked hard to get good hours and she is happy and comfortable working in the area she is working in. She said she was a widow and a single parent with limited assets and is not well set up for retirement. She therefore said she will have to work as long as she can and that this would be to the usual retirement age. The claimant said at the final telephone conference she could have worked for a further 20-25 years (to age 70-75). She said that she has moved from a ward with over 20 beds to a ward with only 10 beds as this is easier on her injuries and her symptoms.

  4. The claimant confirmed she had time off work immediately after the accident and that GIO paid her statutory benefits. She said she has had time off since then in 2018 (she thought shortly before Christmas) and in 2019 and 2020 but could not be sure of when. She said she took sick leave and received no statutory benefits during this time. She told me of a flare up of her neck pain in April 2020 and that she had two weeks off work as a result.

  5. The claimant and the insurer told me there had been several offers and that the offer I am considering is not the first.

Medical Assessment

  1. Because the claimant’s GP’s evidence raised the prospect of the claimant having radiculopathy and because Dr Keller did not have the records from Dr Clarke I was not satisfied that the settlement should be approved after the first teleconference and upon receipt of additional documents. I therefore directed the insurer to refer to the Commission for medical assessment a treatment dispute about Dr Clarke’s fees (noting the claimant had funded these herself), a whole person impairment dispute and an earning capacity dispute.

  2. The medical assessment matters were eventually referred to Medical Assessor Ian Cameron for determination. Due to the pandemic, the determination of Medical Assessor Cameron was not provided until 12 December 2021. He found the claimant had a 5% whole person impairment and that Dr Clarke’s treatment was reasonable and necessary.

  3. While Medical Assessor Cameron noted that the claimant had changed roles in her job in order to deal with her injuries and although he diagnosed ongoing neuropathic and nocioceptive pain he found she had no impairment to her earning capacity. The insurer’s representative agreed that the claimant did have an impairment to her earning capacity.

SHOULD I APPROVE THE SETTLEMENT?

The offer

  1. Section 4.3 of the MAI Act provides that damages may only be awarded for non-

    economic losses and economic losses. The types of economic losses which can be awarded are limited to those set out in section 4.5(1) which are:

(a)damages for past or future economic loss due to loss of earnings;

(b)damages for costs relating to accommodation or travel;

(c)damages for the cost of the financial management of damages, and

(d)damages for reimbursing tax pain by the insurer on statutory benefits paid.

  1. Lost superannuation contributions may also be recovered under section 4.6(3) of the MAI Act.

  1. GIO’s offer was included in a letter to the claimant dated 1 December 2020:

(a)past loss of earnings (incl superannuation and tax paid) $7,000

(b)    future loss of earning capacity (incl superannuation)       $70,000 Total          $77,000

  1. Ms Papaspiros confirmed that the amount of $4,231.45 would be deducted from the settlement being the amount of weekly benefits paid as at today’s date.

  1. There is no Medicare payback, as treatment and care expenses have been paid as part of the statutory benefits claim. If there is any Medicare related treatment, it is my view that it must be paid out in Ms McPherson’s statutory benefits claim and not her damages claim.

The requirements of the legislation

  1. When considering the provisions of section 6.23 of the MAI Act and clause 7.38 of the Guidelines along with the rules and practice directions of the Commission, in determining whether to approve Ms McPherson’s settlement I must consider:

(a)timing – whether the date of the settlement is more than two years after the accident unless the claimant has a whole person impairment of more than 10%;

(b)appropriateness – whether the amount of the settlement is just, fair and reasonable, and

(c)understanding – whether Ms McPherson understands the settlement and its terms and the effect of the settlement in ending her claim for damages.

  1. It is now more than two years since Ms McPherson’s motor accident. I am therefore satisfied that the timing requirement has been met.

  1. I am also satisfied that Ms McPherson understands that she is entitled to reasonable and necessary, accident-related treatment for the remainder of her life. The settlement of the damages claim does not affect that claim and Ms McPherson understands that she can continue to ask and receive assistance and treatment from GIO. Ms Papaspiros noted that while payment had not been made for the treatment certified as reasonable and necessary by Medical Assessor Cameron she would be doing what she could to ensure that payment is made.

  1. After explaining the ‘once and for all’ nature of the damages claim, Ms McPherson accepted that the settlement of her damages claim is binding upon her and that she cannot make a further claim for damages in the future.

  1. I explained to Ms McPherson that I could not provide her with legal advice and that she could engage a lawyer to provide advice about the settlement. I explained that the insurer would be liable to pay some of her legal costs and there are solicitors who would charge only what they can recover from the insurer. Ms McPherson indicated she did not wish to engage the services of a lawyer in relation to her settlement.

  1. In terms of past loss of earnings, Ms McPherson was paid close to $1,500 per fortnight and had about eight weeks off work. The claimant has had other occasional days off work and the insurer has ‘rounded out’ the offer for the past. I am satisfied that the allowance for past loss is therefore appropriate.

  1. The offer of $70,000 for future loss of earning capacity is made by the insurer on the basis of a ‘cushion’ or ‘buffer’ against losses that may arise in the future. The claimant is not currently losing any hours or any income. She is a fifty year old woman working as an assistant in nursing in aged care. She says she would have worked for another 20-25 years (to age 70 or 75). The evidence satisfies me that Ms McPherson is still working but undertaking different duties as a result of her injuries. It may be that she will have to give up work earlier than otherwise or take occasional days off work if she has a flare up of her pain but her future losses could not be calculated with any degree of precision. I am satisfied that the amount the insurer has allowed for the future is appropriate.

CONCLUSION

  1. I am therefore satisfied that the proposed settlement figure of $77,000 is an appropriate one and that it complies with the requirements of clause 7.37 of the Guidelines, in that it is:

… just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a [member], 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.

  1. Accordingly, pursuant to section 6.23 of the MAI Act the proposed settlement of Ms Kylie McPherson’s claim for damages is approved.

Belinda Cassidy
Member (Motor Accidents Division)
Personal Injury Commission

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