QBE Insurance (Australia) Limited v Wilkie
[2021] NSWPIC 339
•31 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Wilkie [2021] NSWPIC 339 |
| CLAIMANT: | BJ Wilkie |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 31 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 31-year-old male; motorcycle accident; chronic dislocated left acromioclavicular joint and small triquetrum fracture of the right wrist; ongoing musculo-skeletal shoulder symptoms; 6% whole person impairment so no entitlement to non-economic loss; past economic loss; unfit for work for 12 weeks; future economic loss; buffer for future earning impairment; Penrith City Council v Parks considered; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; 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. |
INTRODUCTION
On 5 January 2018 Mr BJ Wilkie (the claimant) sustained injury in a motor vehicle accident (the accident).
Mr Wilkie has made a claim against QBE Insurance (Australia) Limited (the insurer) of the at fault vehicle, for lump sum damages.
The insurer accepted liability for Mr Wilkie’s claim for statutory benefits and has paid Mr Wilkie $11,485.31 by way of statutory weekly benefits and seeks credit for that sum.
The insurer has accepted that Mr Wilkie 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.
It is not conceded Mr Wilkie has sustained an injury which has caused a whole person impairment of greater than 10%. This means Mr Wilkie is not entitled to recover damages for non-economic loss.
Mr Wilkie and the insurer have agreed to settle the claim for lump sum damages for the sum of $66,657.68. The settlement offer made by the insurer in the sum of $66,657,68 has been calculated as follows:
·$16,657.68 for past economic loss; and
·$50,000 by way of buffer for future economic loss.
Because Mr Wilkie 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 PIC) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 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 clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue 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%.
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 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 Mr Wilkie, and taking into account any proposed reductions or deductions in the proposed settlement; and
(c) Mr Wilkie understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
TELECONFERENCE ON 19 JULY 2021
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 19 July 2021. Mr Wilkie participated in person and the insurer was represented by Mr Elveen Lal.
Mr Wilkie confirmed he had read the report of Dr Harrington and subsequently faxed the referral to a radiology centre to book in the EMG study, but they did not get back to him. Thereafter, other health issues arose which took precedence, so he did not follow it up. In January 2021 he moved with his family to Queensland.
I asked him if he had considered consulting a lawyer. Mr Wilkie said no. He informed me he knew very little about the process and found the insurer uninformative until Mr Lal become involved. He stated it was Mr Lal who advised him he could bring a claim for lump sum compensation. However, he also stated that he wished to explore every avenue before finalising his claim.
I suggested to Mr Wilkie that he arrange to undergo the investigations suggested by Dr Harrington prior to finalising the settlement.
Mr Wilkie is under the care of a haematologist in Queensland but agreed he needed to find a new general practitioner (GP). He agreed to consult a GP, to disclose to that GP the report of Dr Harrington and ask him to arrange the investigation proposed by Dr Harrington and provide him with advice on the outcome of that investigation.
Mr Wilkie consulted Dr Ventzi Bonev, neurologist and obtained a copy of his report dated 22 July 2021 addressed to Dr Clive Bishop.
I also asked Mr Wilkie to provide a statement detailing events in his life including his move to Queensland, and his employment history since that move.
I asked the insurer to provide details of the calculations in respect of past economic loss and to obtain instructions in respect of Medicare.
The responses received to each of the two latter requests are addressed below.
A further teleconference was held on 30 August 2021 when I informed the parties I proposed to approve the settlement.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents:
·Application for Personal Injury Benefits;
·report of the NSW Ambulance Service;
·clinical notes of Wyong Hospital;
·clinical notes of Kanwal Village Medical Centre;
·Police Report Event Ref: 65726209;
·Liability Notice dated 20 October 2020;
·report of Dr Chris Harrington dated 1 September 2020;
·email from Elveen Lal of QBE to Mr Wilkie dated 19 May 2021;
·list of statutory weekly payments;
·email from Claimant to Elveen Lal dated 19 May 2021; and
·report of Dr Ventzi Bonev dated 22 July 2021.
REVIEW OF THE EVIDENCE
Mr Wilkie is now 31 years of age.
He worked as a youth worker with Juvenile Justice at the time of the accident on a gross annual salary of $76,874.59.
Mr Wilkie’s medical history includes depression, splenomegaly, renal failure (acute) and essential thrombocythaemia. On 25 November 2011 he had an ultrasound of the left shoulder which failed to demonstrate a ruptured rotator cuff. Mr Wilkie submitted a workers compensation claim in respect of soft tissue injuries sustained on 6 June 2019 to the left arm, right thigh, right thumb, and right ankle. He apparently made a full recovery.
On 5 January 2018 Mr Wilkie was riding his motorcycle on Victoria Street towards Norah Head Sports Club. Mr Wilkie entered the roundabout at the intersection with Soldiers Point Drive, Norah Head. The at fault vehicle entered the roundabout and collided with the left side of Mr Wilkie’s motorcycle causing Mr Wilkie to be thrown from his motorcycle and sustain injury.
Mr Wilkie was conveyed by ambulance to Wyong Hospital. Wyong Hospital summary of care states:
‘Mr Wilkie was BIBA to Wyong Hospital ED on 05/01/2018 after a low speed motorbike accident in which he was knocked off his bike. He sustained no loss of consciousness and reported no neurological signs or symptoms other than mild headache.
He had pain in his left shoulder and right wrist. Xray left shoulder showed an AC joint dislocation without obvious fracture and CT right wrist showed a small triquetral fracture. His right wrist has been placed in a short arm volar slab.
He had some pain in his left upper trapezius and SCM to palpation and on turning his head to the right. There was no significant swelling or bruising or bruits.
He remained haemodynamically and neurologically stable and has been given a fracture clinic referral. He has been given a short supply of panadeine forte for breakthrough pain relief and instructions for regular paracetamol and ibuprofen.”
Mr Wilkie underwent an x-ray and ultrasound of the left shoulder on 13 March 2020. The report states:
“Left acromioclavicular dislocation which is presumably chronic following the previous trauma. Small well corticated bone fragments in this region. Otherwise, normal studies.”
Dr Han provided a report dated 28 May 2020. He saw Mr Wilkie following his discharge from hospital on 9 January 2018, 22 March 2018, 23 June 2018, 26 June 2018, 12 March 2020, and 16 March 2020. At the most recent consultation Dr Han described Mr Wilkie’s pain as mild but noted he was worried because it had been persistent.
Mr Wilkie was referred to Insight Exercise Physiology. In a report dated 10 November 2020 Emily Webber stated Mr Wilkie reported sharp pain in the left shoulder that subsided with cessation of movement and joint adjustment. It was recommended he undergo eight treatment sessions with the aim of improving stability and muscle strength in the neck, shoulder, and surrounding areas.
Mr Wilkie was assessed by Dr Chris Harrington, Orthopaedic Surgeon at the request of the insurer on 31 August 2020. He reported as follows:
“On examination, he is a pleasant man of stated age with an obvious step over the left AC joint of at least 2 cm where it dislocated. It is reducible but doesn’t stay there. There is no exquisite tenderness over his AC joint.
He has a full range of passive movement in all directions. Interestingly, when he lowers his left arm from flexion, down by his side, there is tremendous movement of his scapula (which is also present on the other side). I could push the scapula back and he could still lower his arms but it is associated with crepitus. There is some winging on that non-dominant left side when compared to the right scapula. All other muscle groups are working normally which rules out a brachial plexus injury. He could have suffered an injury to the long thoracic nerve.”
He concluded Mr Wilkie had a chronic dislocated left AC joint because of the accident. He felt Mr Wilkie had not received adequate follow up and recommended an EMG study and referral to a shoulder specialist to rule out anything other than the obvious AC dislocation. He thought Mr Wilkie was an unlikely candidate for surgical intervention but reiterated that specialist review was warranted for the prominent scapulae and associated movements.
Dr Harrington diagnosed an acute dislocation of the left AC joint and a small triquetrum fracture of the right wrist which had healed. Other than review by a shoulder specialist Dr Harrington also recommended a six-week program with an exercise physiologist.
Dr Harrington found there was no incapacity for work, noting Mr Wilkie had six weeks off work after the accident and had since resumed work as a youth officer in the juvenile justice system, although he noted he was no longer part of the response team.
He stated Mr Wilkie’s present and future fitness for employment remained unchanged but noted Mr Wilkie remained cautious of his shoulder. Dr Harrington assessed a 6% whole person impairment.
Mr Wilkie moved to Queensland with his wife and two children aged four and two on 2 February 2021. The move was to achieve a change of lifestyle whilst the children were young. Mr Wilkie proposed to work with his brother as an apprentice brick layer.
Mr Wilkie worked with his brother for approximately three months but found it necessary to cease work because of his shoulder pain and limited strength in the left arm as well his condition of essential thrombocytopenia. Mr Wilkie stated the loss of strength in his left shoulder limited his ability to complete the work to the standard required. He also found the aggravation of his shoulder condition made it more difficult to sleep on his left shoulder at night.
After a short period of unemployment of one to two months Mr Wilkie was successful in obtaining employment in the juvenile justice field. He commenced training for his new role on 24 May 2021 and now works casually at a Brisbane youth detention centre as a youth worker. Mr Wilkie states he is able to do this job with limited shoulder movement as no lifting is required other than the need occasionally to use force to restrain a young person.
Mr Wilkie obtained a referral to Dr Ventzi Bonev, consultant neurologist. Mr Wilkie underwent a neurophysiology study which was reported as normal. Dr Bonev provided a report to Dr Clive Bishop, dated 22 July 2021. He described the presenting complaints as follows:
“Ongoing pain in left AC joint with noticeable abnormal left scapular positions with certain shoulder and arm movements; symptoms present since MBA two years ago which resulted in left AC joint injury.”
Following examination Dr Bonev concluded as follows:
‘Given the normality of the neurophysiological study and Mr Wilkie’s clinical picture, I suspect that his left AC joint pain and poor scapular control are mainly musculo-skeletal in nature, rather than being due to any form of peripheral neurological pathology. Considering the duration of his symptoms I would recommend for orthopaedic opinion to be obtained.’
SHOULD I APPROVE THE SETTLEMENT
In circumstances where Dr Bonev has ruled out any neurological cause for the ongoing symptoms suffered by Mr Wilkie it seems Mr Wilkie can now be satisfied that his ongoing musculo-skeletal shoulder symptoms are the result of the chronic dislocated left AC joint as diagnosed by Dr Harrington.
There is no entitlement to compensation for non-economic loss or pain and suffering where Dr Harrington opined Mr Wilkie had sustained a whole person impairment of 6%.
Following the initial absence from work there has been no further absence from work other than the period of unemployment before Mr Wilkie commenced his current employment.
The sum of $16,657.68 for past economic loss for the period 5 January 2018 to 4 March 2018 includes the sum of $3,238 being the amount of tax deducted from the weekly statutory payments and loss of superannuation calculated at 11% of the net past loss of earnings.
I consider the assessment of past economic loss to be appropriate. The insurer is to have credit for the sum of $11,485.31 paid in weekly statutory payments.
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 unless Mr Wilkie establishes that the accident has caused a change in his 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 Mr Wilkie 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 also agree that a buffer of $50,000 for the future impairment of Mr Wilkie’s earning capacity is appropriate having regard to the opinion of Dr Harrington that Mr Wilkie has sustained a chronic dislocated left AC joint and where it has become apparent that Mr Wilkie is no longer fit to undertake heavy work, such as bricklaying.
I am satisfied that Mr Wilkie is aware of his right to have his reasonable treatment expenses paid for the remainder of his life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses.
Mr Lal advised the insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. He advised the insurer has asked Medicare to issue a Claims History Statement for completion by Mr Wilkie. If any charge is raised the insurer will pay the charge as a treatment expense in addition to the settlement sum.
I advise Mr Wilkie if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, he should ask the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
CONCLUSION
I find the timing requirements of section 6.23(1) of the MAI Act satisfied where it is now 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 Mr Wilkie.
I am satisfied Mr Wilkie is aware he can seek legal advice but does not wish to do so.
I am satisfied Mr Wilkie 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 Mr Wilkie is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2(b) of the MAI Act I approve the settlement of Mr Wilkie’s claim for damages.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
0
3
0