NRMA Insurance Limited v Mitchell-Fraser
[2021] NSWPIC 368
•23 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | NRMA Insurance Limited v Mitchell-Fraser [2021] NSWPIC 368 |
| CLAIMANT: | Tamika Mitchell-Fraser |
| INSURER: | NRMA Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 23 July 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); damages claim; approval of settlement under section 6.23 of the MAI Act; claimant now 20 years of age; casual employee at Hungry Jacks; passenger in vehicle which collided with tree before going over embankment; complex clavicle fracture; no entitlement to non-economic loss as no evidence whole person impairment greater than 10% following further review by occupational physician; damages for past economic loss allowed on basis total incapacity for work until 1 May 2020 when claimant not working due to wish to provide care for child; unfit for work involving lifting or above shoulder work or work requiring repetitive use of the right arm; buffer for future loss of earning capacity of $100,000 acceptable and within the range likely to be awarded; Held – settlement approved. |
| DETERMINATIONS MADE: | 1. This proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act). 3. The proposed settlement complies with clause 7.38 of the Motor Accident Guidelines. |
Introduction
1.On 25 February 2018 Ms Mitchell-Fraser sustained injury in a motor vehicle accident (the accident).
2.Ms Mitchell-Fraser has made a claim against Insurance Australia Limited Trading as NRMA Insurance the CTP insurer of the at fault vehicle, for lump sum damages.
3.Ms Mitchell-Fraser and the Insurer have agreed to settle the claim for lump sum damages for the sum of $164,689.21. The Insurer is entitled to credit for statutory payments in the sum of $45,509.96 which means approval of the settlement will clear Ms Mitchell-Fraser the sum of $119,179.25.
4.Because Ms Mitchell-Fraser is not represented by a lawyer, her settlement must be approved in accordance with the Act.
5.The Insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held teleconferences with Ms Mitchell-Fraser and Ms Katherine Teague of McCabe Curwood, Lawyers on 12 May 2021, 9 July 2021, and 20 July 2021.
Jurisdiction of the Personal Injury Commission
6.The Personal Injury Commission (the PIC) was established on 1 March 2021 and the DRS 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 PIC. 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.
7.Because of the date of the accident cl 14D(3)(b) provides that the Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
The relevant law
8.Section 6.23(1) of the 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%.
9.Section 6.23(2) and (3) of the Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any requirements of the Act or the Guidelines.
10.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.
The settlement
11.The Insurer accepted liability for Ms Mitchell-Fraser’s claim for statutory benefits and has paid weekly benefits and treatment benefits to, or on behalf of Ms Mitchell-Fraser.
12.The Insurer has accepted that Ms Mitchell-Fraser had non-minor injuries and pursuant to Division 3.4 of the Act she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
13.The Insurer undertakes to indemnify Ms Mitchell-Fraser in respect of any charge raised by Medicare in respect of treatment expenses paid through Medicare referrable to this claim.
14.Following the first teleconference and after discussion as to the basis of the calculation of past economic loss the Insurer provided a revised offer. Past economic loss is calculated at $512.50 net per week from 25 February 2018 to 1 May 2020 (113 weeks and 5 days) in the total sum of $58,278.55.
15.The final settlement offer made by the Insurer in the sum of $164,689.21 has been calculated as follows:
· $58,278.55 for past economic loss;
· $6,410.64 for past loss of superannuation benefits; and
· $100,000 for future economic loss.
16.The Insurer paid Ms Mitchell-Fraser $45,509.96 by way of statutory weekly benefits and seeks credit for that sum which means approval of the settlement will clear
Ms Mitchell-Fraser the sum of $119,179.25.
Review of the evidence
17.Ms Mitchell-Fraser was born on 27 November 2000 and is now 20 years of age. She completed school after Year 10. Whilst at school she worked as a casual employee at Hungry Jacks.
18.After leaving school Ms Mitchell-Fraser commenced full time employment at Hungry Jacks. At the time of the accident, she was employed as a Team Leader/Manager earning $512.50 net per week. Ms Mitchell-Fraser stated her income varied from week to week depending upon the hours she worked. Her duties were essentially those of store manager. She supervised staff, assisted staff in serving customers, conducted stocktakes and reset the tills.
19.On 25 February 2018 Ms Mitchell-Fraser was a passenger in a vehicle driven by a friend along Lady Wakehurst Drive at Waterfall. She cannot remember exactly what happened because she had her head down on her phone but became aware the car ended up down a cliff. The Police Report indicates the vehicle left the roadway whilst trying to negotiate a left-hand bend, losing control, and colliding with a tree before going over an embankment. After several hours a witness driving past observed the driver and passenger signalling for assistance.
20.Ms Mitchell-Fraser was conveyed by ambulance to St George Hospital. On x-ray she was reported to have a fracture of the distal clavicle with complete displacement of the distal fragment. On 27 February 2018 she underwent surgery, namely open reduction, and internal fixation. She was discharged home on 28 February 2018 in a shoulder immobiliser with analgesia and Endone for breakthrough pain relief.
21.In a report dated 3 April 2018 treating surgeon Dr Hugh Jones noted the Claimant was recovering and he permitted her to mobilise out of the sling.
22.The Claimant attempted an unsuccessful return to work. She experienced difficulties with duties such as lifting boxes of food and her employer stated she could not return until she was fully fit. She also underwent physiotherapy.
23.On 30 October 2018 the Claimant was reviewed by Dr Jones. He reported the fracture had failed to unite and the hardware fixation had failed. The Claimant had discomfort and pain with lifting above shoulder height and reported increasing prominence of the hardware. Dr Jones recommended revisionary surgery.
24.On 8 February 2019 the Claimant underwent open reduction and bone graft and revision plating with coraco-clavicular fixation of the right clavicle. The bone graft was taken from the right iliac crest.
25.On review on 19 February 2019 Dr Jones concluded the wounds were well healed and x-rays satisfactory. He recommended the Claimant use a sling for a further four weeks.
26.On 2 May 2019 the Claimant informed Dr Jones she was experiencing persistent pain in her right shoulder. Dr Jones recommended the Claimant modify her activities.
27.The Claimant was reviewed by Dr Jones on 26 September 2019. He felt the Claimant was progressing well clinically and radiologically. He noted minimal tenderness at the fracture site and stated the Claimant has an excellent range of motion of the shoulder. At that time, he found the Claimant fit for light duties only, for work below shoulder height and with a lifting restriction of 2 kilograms.
28.On 12 February 2021 Dr Sara Valliappan, GP completed a vocational questionnaire at the request of Benchmark. She was of the view the Claimant was fit to work in retail as a sales assistant, in hospitality as a food and beverage attendant and in administration as a receptionist. She said the Claimant should avoid lifting more than 5 kilograms with the right hand above the shoulder. She imposed a restriction of not more than 10 kilograms with both hands in respect of pushing and or pulling.
29.On 15 February 2020 Dr Jones completed a vocational questionnaire at the request of Benchmark. He concluded the Claimant was fit to work in retail as a sales assistant, in hospitality as a food and beverage worker and in administration as a receptionist. He stated the Claimant was only fit to work four hours per week two days a week with a lifting restriction of 2 kilograms below shoulder height and a pushing/pulling restriction of 5 kilograms.
30.The Claimant gave birth to a son Hunter Alan David Honeybrook on 12 August 2019.
31.The Claimant initially informed me that uninjured she would have taken maternity leave for six months to one year before returning to work. I questioned why the settlement proposed did not make any allowance for past economic loss in the period 1 May 2020 to date.
32.Ms Teague informed me the Insurer was of the view Ms Mitchell-Fraser was no longer incapacitated for work as at 1 May 2020 because she did not participate in rehabilitation. Ms Mitchell-Fraser disputed that is what occurred. She stated the Insurer wished her to attend a rehabilitation provider in Sydney. She stated she could not drive, no one else was available to drive her, she would have been travelling with a baby and it was at the time when COVID-19 was of significant concern. She stated she informed the Insurer she would attend if they could refer her to a rehabilitation provider closer to home. Ms Mitchell-Fraser agreed she would still be happy to attend rehabilitation if it was closer to home for her.
33.I asked Ms Teague to obtain further instructions about rehabilitation. The Insurer filed further submissions dated 10 June 2021. Those submissions provided details of the attempts by the Insurer to engage the Claimant in rehabilitation intervention. The submissions included details of telephone conversations with the Claimant where it was clear the Claimant was not at that time interested in engaging with a rehabilitation provider and trying to achieve a return to work. Undoubtedly the Claimant’s young baby was significant in the Claimant’s reluctance to consider a return to work at that time. I note the Claimant’s son will turn two next month.
34.The Claimant has still not sought to return to work although she indicated she was contemplating undertaking a course. On that basis I accept that any absence from work since May 2020 has been by reason of the Claimant’s maternity leave and her wish to provide full time care for her son.
35.I raised with Ms Mitchell-Fraser the question of any repayment to Centrelink. She stated she had only ever received the parenting payment. She had been informed by Centrelink that she would not be required to make any repayment, but the settlement would preclude her from receiving further benefits for a period of time.
The medico legal evidence
36.The Claimant undertook a vocational assessment with Jane Clarke of Benchmark on 20 January 2020. At that time Ms Clarke reported the Claimant was the primary carer of her five-month-old son. She described her current symptoms as follows:
· crunching in her right hip;
· occasional aching in the right hip;
· intermittent pain in the right shoulder;
· reduced lifting tolerance with the right arm;
· numbness in the right shoulder and down the right arm to the elbow;
· reduced range of movement in the right shoulder, being “tight and stiff” if reaching overhead, behind herself or forward;
· can experience sharp stabbing pain in the shoulder, which can rise to 8/10 with activity or at the end of the day;
· anxiety as a driver or passenger in a car; and
· general worry and nervousness during the day.
37.After considering the Claimant’s transferrable skills and disabilities Ms Clarke discounted the following roles:
·Nurse.
·Personal Care assistant.
·Aged Care Assistant.
·Driver.
·Cleaner.
·Childcare worker.
38.Subject to securing a role involving little to no lifting Ms Clarke conclude the Claimant was fit to pursue the following vocational options:
·Retail/Sales Assistant.
·Hospitality/Food and Beverage Attendant.
·Administration Assistant/ Receptionist.
39.She also concluded the Claimant had the following barriers to a return to work with a new employer:
·she was the primary carer for a 5-month-old baby who she was reluctant to place in childcare due to his age;
·she was hesitant to return to employment generally, due to having a young baby, and did not have a timeframe for return to work;
·she did not necessary wish to return to a team leader role, given the stress involved and her wish to balance work with her home life;
·she was at that time certified with no capacity for work, although
Dr Valliappan approved a capacity for 20 hours per week and Dr Jones for four hours, two days per week;
·she was not able to return to her pre-injury employment with Hungry Jacks because of her ongoing restrictions;
·her physical restrictions impact on the availability of alternate vocational options;
·she has limited transferable skills;
·her lengthy absence from work may impact on her competitiveness in the local labour market;
·she has limited formal qualifications, and
·she has limited independent job seeking skills and requires job skills training to increase her competitiveness in the local labour market.
40.The Claimant was assessed by Occupational Physician Dr Tania Rogers on 6 October 2020. The Claimant stated she had “a little pain now and then” but on a daily basis, on a scale of 1 to 10, rated the pain “probably only a 7 because I am used to it”. She also reported pain in the right anterior hip-groin, and pain with prolonged sitting and walking. The Claimant stated she struggled to lift more than one to 2 kilograms.
41.On examination Dr Rogers noted some variably reduced range of motion of the right shoulder. She concluded the Claimant would be unsuitable for work that required repetitive lifting above shoulder height or reaching under load. Whilst she felt the Claimant’s prognosis was reasonably good, she thought she would continue to have discomfort in the fracture site from time to time.
42.Dr Rogers diagnosed a complex clavicle fracture and suggested an opinion from a shoulder surgeon may be of assistance. This is significant where Dr Rogers appeared unable to assess the whole person impairment (WPI) of the shoulder.
43.She stated the best available range of movement amounted to a WPI of 4% but the inconsistency she observed in range of motion meant it could not be used as a valid parameter of impairment evaluation. Dr Rogers concluded she could not use Table 23 because that can only be used if there is no restriction of movement. She concluded there was restriction of motion, albeit not consistent with repetition. She also noted there was an area of reduced sensation consistent with supraclavicular nerve damage arising from the C3/4 roots. She concluded this was not assessable under Table 10 or Table 15 AMA 4.
44.Whilst Dr Rogers did not provide an assessment of WPI in respect of the shoulder she assessed a 2% WPI for scarring to the right shoulder and a 1% WPI for scarring to the right hip.
45.I raised concerns about the failure of Dr Rogers to provide an assessment of WPI referrable to the shoulder. It seemed inexplicable that the only assessment related to scarring when the significant injury pertains to the shoulder. I suggested that a further enquiry be made of Dr Rogers to see if there was any point in a review assessment or whether an assessment with a shoulder surgeon would be more appropriate.
46.The Insurer obtained a supplementary report of Dr Tania Rogers dated 15 June 2021. In that report Dr Rogers stated:
“The best available range of movement amounted to a WPI OF 4%. However, there was inconsistency in range of motion both within the assessment, therefore range of motion cannot be used as a valid parameter of impairment evaluation as per Section 6.50 of the Motor Accident Guidelines.
I have considered using Table 23 page 60 AMA IV. However the instructions stated if there is no restricted motion the values shown in Table 23 are multiplied by the relative value of the joint to determine the joint impairment, thus indicating that this table can only be used if there is no restriction of motion. There is restriction of motion, albeit not consistent with repetition.
There was no AC joint crepitus and the joint appeared stable although deformity was present. There was no suitable impairment by analogy.
After consideration of all available information and the results of the assessment, the WPI for right shoulder is 0% WPI”.
47.Whilst Dr Rogers still declined to provide an assessable WPI I note that the range of possible outcomes for WPI for the shoulder was between 0% and 4%. Even allowing for the additional assessment of 3% for scarring I am satisfied that the Claimant is unlikely to be found to have sustained a WPI in excess of 10%.
Should I approve the settlement
48.Because Ms Mitchell-Fraser has not been assessed as having a WPI in excess of 10%, she is not entitled to damages for non-economic loss or pain and suffering.
49.I am satisfied that Ms Mitchell-Fraser is aware of her right to have the Insurer pay reasonable ongoing treatment expenses for the remainder of her life.
50.Ms Mitchell-Fraser understood that the settlement was only in respect of her entitlement to damages for economic loss, that is wage loss arising from the accident.
Past loss of earnings
51.The Insurer conceded the Claimant was unfit from the accident on 25 February 2018 until 1 May 2020.
52.In submissions dated 10 June 2021 the Insurer advised an accurate assessment of the Claimant’s loss was $512.50 net per week. I asked the Insurer if they had any evidence from Hungry Jacks to verify the Claimant’s earnings. I noted the payslips filed in the portal were simply payslips detailing the statutory payments made by the Insurer. Ms Teague located a Payroll Activity Statement furnished by the Claimant for the period 23 February 2017 to 22 February 2018 which disclosed a gross income for that period of $28,793.96. I asked Ms Teague to upload that document to the portal. Ms Mitchell-Fraser stated her income varied from week to week depending upon the hours she worked. Based on that document I indicated I was prepared to accept the Insurer’s calculation of $512.50 net per week was an accurate representation of the Claimant’s average net weekly earnings prior to injury.
53.On that basis the Insurer revised their offer. Past economic loss is calculated at
$512.50 net per week from 25 February 2018 to 1 May 2020 (113 weeks and 5 days) in the total sum of $58,278.55. The figure for past loss of superannuation was revised to $6,410.64.
54.I am satisfied that this is an appropriate assessment of the Claimant’s past loss of earnings.
Future Loss of Earnings
55.I accept that the most likely future circumstances for the Claimant is ultimately a return to employment in a customer service role, although it is clear the Claimant is no longer fit for work involving lifting or above shoulder work or work requiring repetitive use of the right arm.
56.I find the Claimant will be unable to return to employment with Hungry Jacks or similar where she will never be fully fit and will be subject to ongoing restrictions.
57.The Claimant is only 20 years of age with a working life of 47 years. She has no formal qualifications, and her employment history is limited to employment with Hungry Jacks.
58.In Penrith City Council v Parks [2004] NSWCA 201, Justice Giles stated
“I consider that it is still open to assess damages by way of a so called ‘buffer’. The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury, is difficult to determine.
There is still a comparison between the economic benefits, although the difference cannot be determined otherwise than by the broad approach by buffer”.
59.I am satisfied that it is appropriate in this matter to assess future wage loss by way of buffer, and I consider a buffer of $100,000 to be acceptable and within the range likely to be awarded.
CONCLUSION
60.I find the timing requirements of s 6.23(1) of the Act is satisfied where the accident occurred over two years ago.
61.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 Ms Mitchell-Fraser.
62.I am satisfied Ms Mitchell-Fraser is aware the Insurer proposes to deduct from the settlement sum $45,509.96 in respect of statutory payments already received.
63.I am also satisfied Ms Mitchell-Fraser is aware of the obligation to repay any charge raised by Centrelink, although based on her enquiries there will be no repayment and has also canvassed with Centrelink the extent of any preclusion period.
64.I also note the Insurer has agreed to indemnify Ms Mitchell-Fraser in respect of any charge raised by Medicare in respect of treatment expenses referrable to this claim.
65.I am satisfied Ms Mitchell-Fraser is aware she can seek legal advice but does not wish to do so.
66.I am satisfied Ms Mitchell-Fraser 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 Ms Mitchell-Fraser is willing to accept the proposed settlement.
67.Accordingly, pursuant to s 6.23(2(b) of the Act I approve the settlement of Ms Mitchell-Fraser’s claim for damages.
Susan McTegg
Member (Motor Accidents Division) Personal Injury Commission
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