QBE Insurance (Australia) Limited v Ren
[2022] NSWPIC 541
•23 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v Ren [2022] NSWPIC 541 |
| Claimant: | Su Zhen Ren |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Shana Radnan |
| DATE OF DECISION: | 23 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 78-year-old female; injuries to both lower limbs, right knee and left ankle requiring surgical fixation; psychological injuries resolved; 13% whole person impairment entitlement to non-economic loss; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act). 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
Background
QBE (the insurer) referred the proposed settlement to the DRS which was part of the State Insurance Regulatory Authority on 13 July 2022 for approval. The application was allocated to me for consideration and I have held a teleconference in the matter as follows:
(a) On 9 August 2022 I held a lengthy teleconference with the assistance of a Mandarin interpreter. Su Zhen Ren (Jenny) (the claimant) and insurer for the purposes of obtaining particulars and an update as to the claimant’s current medical status, discussing the nature and extent of ongoing injuries as well as determining from questioning the claimant her understanding of the settlement, its finality and assurance that she was satisfied with the settlement;
(b) the claimant confirmed during the teleconference that she is now doing very well and taking no medication. She lives alone, has done so for over 20 years. The treatment she received from Gordon Lee psychologist had little effect and that she successfully reduced her symptoms of fear and anxiety with her own activities;
(c) I requested the production of up to date treating doctor’s clinical records to satisfy myself of the current status of the claimant’s injuries. Noting that the claimant informed me that she was having no current treatment and taking no daily medications. The medical reports contained in the application were deemed sufficient for me to assess the settlement approval;
(d) it was confirmed by the insurer that they continued to have the obligation to cover all reasonable and necessary treatment for the period of five years post-accident and that contact should be made in the event ongoing treatment was required. The claimant advised she understood that this as it related to ongoing reasonable treatment needs;
(e) I questioned the claimant as to whether she was aware she could seek legal representation and obtain advice as to her rights and the appropriateness of the settlement sum. The claimant responded to me she was happy with the settlement and wanted to have the matter completed, and
(f) the single head of damages in this application is non economic loss. The claimant was a pensioner at the time of the accident.
The claimant was a pedestrian who was struck by the insured’s driver whilst crossing at a pedestrian crossing. The vehicle swiped her across her right knee and she consequently fell to the ground onto her right knee. She had previously undergone a left knee replacement which was unharmed in the accident.
Police and ambulance attended the scene.
The claimant was conveyed to Bankstown- Lidcombe Hospital, where she remained for two months. She underwent open reduction and fixation of a comminuted depressed fracture of the medial tibial plateau and the distal tibia involving ankle joint immobilisation by insertion of a plate. In addition, she suffered an undisplaced fracture of the lateral malleolus. Dr Alice Chung was her treating orthopaedic surgeon. She remained in hospital until 31 August 2020.
The claimant was unable to weight bear for 12 weeks and used a frame thereafter to support her mobility.
She sustained psychological injuries as a consequence of her physical injuries. This manifest particularly when walking outside her home. She held fears and had anxiety around possible falls.
Upon release from hospital she remained under the care of her general practitioner
Dr Francis Vu at Padstow Parade Clinic.The claimant has continued to consult physiotherapists for mobilisation treatment and this is ongoing at the time of the application before me.
Notification of a claim was made on 29 April 2020.
The insurer admitted liability.
A common law claim was made on 26 May 2022.
The insurer accepts the claimant is entitled to non economic loss as the whole person impairment (WPI) assessment by Dr Rowe found the claimant had 13%WPI for her orthopaedic injuries.
The claimant is not represented by an Australian legal practitioner. She was given the opportunity to obtain legal advice and has chosen not to.
The insurer made an offer of settlement by letter dated 16 June 2022 in the sum of $150,000 for non-economic losses.
I reviewed the offer and confirmed with the insurer that the no deductions would be made from the settlement sum.
The claimant has advised that she accepts the settlement and has done so of her own free will.
The claimant requests that the Personal Injury Commission (the Commission) approve the proposed settlement as amended.
Information considered
I have considered the documents provided in the matter by the insurer and the additional information provided by the claimant and the further information provided by the insurer which included medical records. There was no other information provided post teleconference.
I received an oral impact statement of the claimant at the first teleconference.
I have considered the medical information provided by the insure. I also rely on the oral information given by the claimant during the teleconference and am satisfied that the claimant continues to suffer some restrictions as a result of the injuries to her right knee and left ankle. She continues with physiotherapy fortnightly.
The clinical records produced confirm that the claimant is not receiving any significant treatment for her injuries from her general practitioner at the current time and this has been the case for some months. When I asked the claimant the last time she visited the doctor for motor accident related problems she advised me “over six months ago”. Her evidence is corroborated by the clinical records.
The claimant confirmed with the assistance of a Mandarin interpreter Ms Zhao, that she continues with her usual daily activities and no longer sees a psychologist, she is happy now and has overcome any side effect of her injuries with her own activities, she found the psychologist unhelpful.
She is in receipt of a home carer who attends for five hours a week to assist with shopping and cleaning. The claimant had a number of injuries which have recovered completely. These were injuries to her chest wall and left elbow.
Injuries sustained
The claimant suffered the following injuries as noted by Dr Chang treating orthopaedic surgeon:
a. bilateral lower limb fractures requiring operative fixation, and
b. psychological injuries – fear and anxiety.
I am to determine whether the proposed settlement complies with any applicable requirements of the Act or cl 7.392 to cl 7.411 of the Motor Accident Guidelines (MA Guidelines).
The claim
The insurer accepted liability for the claim. The insurer, has accepted that the claimant’s injuries are non-minor in nature and that the claimant is entitled to treatment and care relating to the accident caused injuries for the rest of the claimant’s life pursuant to Division 3.4 of the Act.
“Treatment” is widely defined and includes medical treatment (including reviews by the claimant’s general practitioner, specialist), and allied health treatment (including physiotherapy and exercise physiology). Medication (over the counter as well as prescribed) and extends to therapies helping recovery and management of injuries.
The claimant is entitled is non economic loss as her whole person impairment exceeds 10%. This compensation relates to pain and suffering caused by the motor vehicle accident.
Further investigation
The claimant was offered time to seek investigation into likely future problems associated with her ongoing symptoms to her right knee and left ankle and has declined this course of action. She wants to conclude her claim.
Condition of the claimant at the time of settlement
The claimant reported at the teleconference that “I still feel very uncomfortable at times and cannot do what I did before the accident”.
When I question what she could not do she responded “I can do all my things but everything is slower now”.
I asked if she had other family members helping and she advised “my daughter is busy working”.
When I asked her about her pain, she replied “In winter it is worse, in summer it is better”.
As to the impact on her lifestyle, she now needs assistance to go to church or do things outside the house as she cannot do such activites unassisted. She currently usses a wheeled walker frame.
As reported in the clinical notes of Dr Vu and an attendance on 4 January 2022, the claimant is receiving private physiotherapy as the local hospital will not perform services for compensible matters.
The records indicated a fall on 3 August 2021 and 16 December 2021. There is no mention in the records the reasons for the fall. There seems to have been no serious further injury of any kind.
The clinical records reveal little mention of ongoing problems as a result of the motor vehicle accident. There are regular attendances for other medical conditions unrelated to the accident.
Dr Chang reported 10 months post surgery on 2 March 2021 that examination of both lower limbs showed well healed surgical scars. She had no pain in the right knee and no pain in the left ankle. She was able to walk with the assistance of a single walking stick.
X-ray of the left leg showed a united distal tibial fracture. The only ongoing issue related to psychological barrier to resume walking outdoors.
The claimant confirmed apart from the physiotherapy to help her mobility she felt her injuries had reached a plateau and there was no further deterioration during the teleconference held. No treatment or ongoing medication was taken at the present time.
The treatment did little to assist however, I note that the patient records of Mr Lee, clinical psychologist revealed that by 11 May 2021 she reported she “noticed the recovery and she feels less anxious”. The related discharge report dated
13 September 2021 stated:“..her character and supportive social network have been contributing to promote a great prospect of recovery”…”She stated that she no longer requires support at this stage.”
Review of the Allied Health recovery rehabilitation plans accord with significant recovery. By 8 February 2021 Mr Lombardo physiotherapist confirmed in his report, she was able to walk unassisted within her home and was able to attend church.
Approval of settlement
Section 6.23 of the Act provides the following restrictions on settling claims for damages:
(a) Unless a claimant has a whole person impairment of greater than 10%, the claim cannot be settled within two years.
The timefrarme of the Act has been complied with. The claimants injuries exceed the threshold specified in the Act. Her WPI was assessed at 13% for her orthopaedic injuries.
(b) The settlement must be approved by a Member of the Commission. I am not to approve the settlement unless I am satisfied there is compliance with any of the requirements of the Act and MA Guidelines.
I am satisfied that there has been compliance.
(c) Clause 7.389 of the MA Guidelines requires the insurer to include in its application details of the following:
(i)Sub-cl 1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount has been broken down as $150,000 for non-economic loss;
(ii)Sub-cl 2 requires the amount of any deductions in the proposed settlement.
The offer made excluded any Medicare reimbursement. No other payments are being deducted from the settlement;
(iii)Sub-cl 3 requires the amount of any advanced payments made.
There have been no advanced payments in this matter apart from medical expenses and these do not form part of the settlement, and
(iv)Sub-cl 4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received as much information as the insurer and the claimant have been able to provide to establish the nature and extent of the claimant’s injuries and current ongoing disabilities. Whilst the claimant was given an opportunity to provide further orthopaedic opinion as to likely deterioration and impact of any surgery, the claimant advised she would not undertake any surgery and the opportunity was declined.
(d) Clause 7.399 of the MA Guidelines, requires me to consider the following:
(i)Sub-cl 1 Timeliness – the proposed settlement satisfies the timing requirements in the Act.
This has been satisfied. The date of accident was 12 April 2020 and the application for settlement approval was made on
13 July 2022;(ii)Sub-cl 2 Appropriateness – 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 injuries, disabilities impairments and losses sustained by the claimant, into account any proposed reductions or deductions in the proposed settlement.
Having reviewed all of the medical evidence produced in this matter, having spoken to the claimant, I accept her evidence of ongoing restrictions and pain and am satified that the nature of the claimant’s injuries and the ongoing disabilities are known and have stabilised, the extent of past and future treatment is known as it related to ongoing pain and suffering and there is no evidence before me to suggest the claimant is likely to undertake any further surgical intervention. I find that having regard to the information made available I consider that the agreed sum of $150,000 is just, fair and reasonable and within the range of likely potential damages assessments had the matter been assessed by a claims assessor taking into account the extent of recovery, the claimant’s age and limited ongoing symptoms which no longer requires medication.The claimant was advised by me, at the teleconference held that should she wish to, she was at liberty to seek independent legal advice and that in the event that further medical evidence was provided to establish any deterioration, since the insurer’s medical investigation were undertaken, that such information could impact on the non-economic losses. The claimant confirmed she did not wish to undertake this path of retaining legal representation and had declared she was happy to take the settlement offered by the insurer and wanted it approved by the Commission as soon as possible, and
(iii) Sub-cl 3 understanding – the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconference held that in the event she took the settlement, she could not seek any further damages for non-economic losses. She was advised that the insurer would still provide ongoing medical treatment, if required and approved by the insurer and the ongoing care if required and upon the expiry of the fifth year anniversary any further treatment would required an application to ICare.
The claimant was also made aware that the insurer would continue to meet any charge issued by Medicare and that the insurer has agreed to reimburse HIC separately to the sum stipulated in the terms of settlement.
I am satisfied that the claimant is aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its finality to her claim for damages.
Determination
The proposed settlement is approved under s 6.23(2)(b) of the Act.
The proposed settlement complies with cl 7.392 to cl 7.411 of the MA Guidelines.
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