CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
AAI Limited t/as GIO v Kalantzis [2023] NSWPIC 252	
		
Claimant:	John Kalantzis	
		
insurer:	AAI Limited t/as GIO	
		
Member:	Shana Radnan	
		
DATE OF DECISION:	26 May 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; $195,000; 48-year-old male; past and future economic loss only; 1% whole person impairment; left shoulder surgery, hip pain and aggravation of pre-existing low back degenerative condition; section 6.23; Held – the proposed settlement is just, fair and reasonable; settlement approved. 	
determinations made:	Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017
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. 
3.	The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. 

STATEMENT OF REASONS
INTRODUCTION
1.	On 23 September 2020 John Kalantzis (the claimant) sustained injury in a motor vehicle accident (the accident).
2.	The claimant has made a claim against GIO (the insurer) of the at fault vehicle, for lump sum damages. 
3.	The insurer accepted liability for the claimant’s claim for statutory benefits and has paid him $90,910.72 by way of statutory weekly benefits and seeks credit for that sum. 
4.	The claimant was rear ended and pushed into the vehicle in front of him, resulting in a six car chain collision. The claimant’s airbags did not deploy as a result of the accident. Neither police or ambulance attended the accident scene.
5.	An Application for Common Law Damages was lodged on 12 September 2022 and liability was admitted in full on 7 December 2022 (document A3).
INJURIES
6.	As a result of the accident, the claimant contends he sustained the following injuries:
(a)	left shoulder (requiring surgery);
(b)	cervical spine – soft tissue injury;
(c)	lumbar spine – soft tissue injury, and
(d)	bilateral hips – soft tissue injury.
7.	Following the accident, the claimant consulted his general practitioner (GP), Dr Gurigis, who arranged for him to undergo an ultrasound of his left shoulder. This ultrasound revealed a tear and the claimant was referred to Dr Doron Sher, orthopaedic surgeon, who recommend the claimant undergo surgery. 
8.	The claimant sought a second opinion from Dr Moopanar, orthopaedic surgeon, who also recommended the claimant undergo surgery.
9.	On 29 January 2021 the claimant underwent surgery in the form of a left shoulder arthroscopy, rotator cuff repair and bicep tenodesis (document A6).
10.	Up until undergoing shoulder surgery the claimant had been working in his usual capacity, being certified fit to do so. Following his surgery, the claimant had approximately five months off work to allow for recovery, returning to work in June 2021, on a restricted basis. As at 12 July 2021, the claimant was certified as fit for pre-injury duties (document A14).
11.	The claimant has been assessed by Dr Rogers, occupational physician, on behalf of GIO. In report dated 9 February 2023 (document A5) Dr Rogers confirmed the circumstances of the accident and noted the claimant to have complaints of injuries to his left shoulder, cervical spine, lumbar spine and bilateral hips (right more so than the left).
12.	Noted that immediately following his accident the claimant returned to work at pre-injury level but after undergoing surgery in late January 2021, required approximately five months off work, before returning to work in a reduced capacity in June 2021.
13.	Recounted that the claimant had reported his shoulder pain had improved, his range of movement was good, and he had even returned to some sporting activities (push ups and lifting of weights – although not as heavy as pre accident). He opined the claimant had aggravated pre-existing rotator cuff tendinosis, supraspinatus tear, labral tear and acromioclavicular joint degenerative changes in his left shoulder and had sustained a whiplash injury to his cervical spine. Noting a pre-accident history of low back pain (treated with osteopathy in the past), Dr Rogers opined the claimant’s low back pain was not related to the subject accident but was a result of degenerative changes.
14.	Noted at the time of the assessment, the claimant was working for a new employer, MU Group. He opined the claimant was fit to return to pre-injury duties. Assessed the claimant with a 1% whole person impairment (WPI) for his left shoulder.
NON-ECONOMIC LOSS
15.	To be entitled to damages for non-economic loss the assessment of whole person imapirment assessed must exceed 10%. The claimant has been medically assessed by Dr Rogers, occupational physician, (A5) who has assessed a 1% WPI for the claimant’s left shoulder. There is no entitlement to damages for non-economic loss.
16.	The claimant has been advised by the Insurer that any further treatment and/or care required by him, will continue to be provided (on the basis it is reasonable and necessary) irrespective of settlement of his damages claim.
ECONOMIC LOSS
17.	At the time of the accident the claimant was 46 years of age, working full time as a project development officer on a fixed term contract. 
18.	Following the accident, the claimant was certified fit for pre-injury work and worked up until he underwent surgery to his left shoulder on 29 January 2021.
19.	After undergoing surgery, the claimant was certified unfit for work until 29 April 2021 and was thereafter gradually medically upgraded in his fitness for work. 

20.	Although certificates of fitness certified the claimant as fit in some capacity to return to work from 1 May 2021, it appears the claimant returned to employment (in a reduced capacity) one month later, in June 2021.
21.	As at 12 July 2021, the claimant was certified by Dr Moopanar as fit for pre-accident duties and hours (document A14).
22.	Particulars received from the claimant’s employer (RMS) dated 5 October 2022 (document A20) confirm at the time of his accident the claimant worked 40 hours a week, earning $125 gross per hour, totalling a net weekly wage of $3,002.00 ($75 net p/hr).
23.	The claimant reported to Dr Rogers in February 2023, he was now working for a different employer, MU Group, noting his contract of employment with the RMS concluded in February 2022.
24.	The claimant has continued to work pre accident duties and hours from July 2021 onwards. 
PAST ECONOMIC LOSS
25.	A summary of the claimant’s medical certificates, post-accident, (documents A13, A14) confirmed his inability to work for certain periods. The losses for these periods between 24 January 2021 and 5 October 2021 amounted to $58,500.
26.	The Insurer calculated past net economic loss at $59,584.00 based on a return to part time duties in June 2021 (as reported by Dr Rogers), as follows:
(a) 	Loss of full income from 29.1.2021 – 31.5.2021 – 40hrs @ $75 x 17wks
($51,034)
(b) 	Loss of 20 hours from 1.6.2021 – 11.7.2021 – 20 hrs @ $75 x 5.7wks
($8,550)
27.	In addition, the Insurer allowed $28,322 being the income tax paid on behalf of the claimant for Fox v Wood(1981) 148 CLR 428 component (document A21)
28.	An allowance for past superannuation losses at the rate of 11.5%, totalled $6,852.16. The total the past losses amounted to $94,758.16 and was rounded up to $95,000.
FUTURE ECONOMIC LOSS
29.	The claimant will be turning 49 years old in June 2023 and therefore has a further work life expectancy of 18 years.
30.	By 12 July 2021, the claimant was certified fit for pre-accident duties and hours by Dr Moopanar and returned to work in that capacity (document A14).
31.	Dr Rogers examined the claimant on 9 February 2023 (document A51) and reported at the time of assessment he was now working for MU Group (the contract with the RMS having come to an end). Dr Rogers opined the claimant was fit for pre-accident hours and duties.
32.	The claimant reported to Dr Rogers that the pain in his left shoulder pain had improved, he had a good range of movement, and he had returned to some sporting activities (such as push ups and lifting of weights – albeit not to the same level as before his accident). The claimant even reported that he deliberately parked 1.7km away from, so he could walk for exercise.
33.	The Insurer notes the claimant’s comments to Dr Rogers that he has had to reject offers to work on construction sites as he was fearful he would have difficulty with such employment. These fears appear largely to relate to the claimant’s back condition which Dr Rogers did not consider as related to the accident (but were degenerative in nature).
34.	Notwithstanding Dr Rogers opinion, the Insurer made an allowance in respect of future economic loss on the basis of both the claimant’s left shoulder injury, and on the basis the subject accident may have aggravated the claimant’s lower back injury.
35.	The Insurer accepted the accident-related injuries may have some impact on the claimant’s performance of his duties into the future, and in that regard has allowed a buffer of $100,000 (roughly equivalent to the claimant having one day off work every month, for the next 18 years). (Document AD 3.)
36.	The claimant has accepted $100,000 as the figure for his future economic loss this figure as per email correspondence dated 11 May 2023.
TELECONFERENCE ON 14 APRIL 2023
37.	The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 14 April 2023. The claimant participated in person and the insurer was represented by Melanie Gazdag. 
38.	I discussed the details of the terms of settlement with the parties and it became apparent that the claimant should establish if there is any ongoing symptoms likely to impact on his future earning capacity not already in evidence before me. He sought additional time to investigate the impact of his injuries on his future earning capacity.
39.	In addition to this he was given the opportunity to seek advice from his general practitioner and specialist to address any concerns of injuries and their impact on future earning capacity.
40.	The claimant was given time to investigate his understanding of what had been agreed and a further teleconference was scheduled.
41.	At this stage future economic loss was $95,000.
TELECONFERENCE ON 12 MAY 2023
42.	The parties confirmed an increased their settlement to $195,000 to reflect future economic loss increased by a further $5,000 to $100,000.
43.	The claimant on 11 May 2023 had executed the Agreement of Release accepting this sum as full and final settlement of his economic loss claimed.
44.	I explained that there would be no additional amounts that could be claimed for economic loss once this amount had been agreed upon and the claimant advised me he was happy with the settlement and wanted my approval of the terms.
45.	The claimant will receive the sum of $104,089.29 in the hand after the credit of already paid statutory weekly payment which amounted to $90,910.72.
46.	The insurer submitted that the proposed settlement is appropriate and complies with the requirements of Clause 7.402.2 of the Motor Accident Injuries Act 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 claims assessor, taking into account the nature and extent of the claim and the injurie, disabilities impairments and losses sustained by the accident”.
DOCUMENTS CONSIDERED
47.	I had regard to the following relevant documents:
(a)	insurer submissions;
(b)	Application for Personal Injury Benefits;
(c)	liability notice dated 7 December 2022 (document A3);
(d)	clinical records of North Shore Private Hospital and discharge summary dated 21 September 2021’
(e)	report of Dr Moonpanar – various;
(f)	X-ray records dated 30 September 2020;
(g)	MRI scans 
(h)	Dr Rogers medico-legal report dated 9 February 2023;
(i)	rehabilitations reports;
(j)	claimant’s response to particulars dated 12 October 2022;
(k)	osteopath records;
(l)	South Strathfield medical records;
(m)	St Leonards physiotherapy notes;
(n)	payslips; 
(o)	employer records;
(p)	list of payments 7 March 2023;
(q)	executed amended deed dated 11 May 2023, and
(r)	further submissions dated 11 May 2023.
REVIEW OF THE EVIDENCE
48.	The claimant is currently 48 years of age.
49.	The claimant’s injuries have stabilised.
50.	The claimant has returned to work and continues to work on a full-time basis.
51.	He does not require ongoing treatment except in cases of intermittent flare up of symptoms. 
INJURIES
52.	The claimant was involved in a rear end collision where his car was pushed into the vehicle in front in a six car pile up.
53.	As a result of the accident the claimant sustained the following injuries:
(a)	left shoulder injury requiring surgery; 
(b)	soft-tissue cervical spine injuries now resolved;
(c)	soft-tissue lumbar spine – an aggravation to degenerative changes, and
(d)	bilateral hip injury.
54.	Whilst the claimant is not currently undergoing any treatment, the insurer noted that any further treatment required will continue to be provided to the claimant (on the basis it is reasonable and necessary) irrespective of settlement of the claimant’s damages claim.
THE SETTLEMENT
55.	The claimant and the insurer have agreed on 11 May 2023 to settle the claim for lump sum damages for the sum of $195,000. 
56.	The nature and extent of permanent impairment are such that the claimant does not qualify for non-economic loss.
57.	The settlement is confined top past and future economic losses only. The settlement offer made has been calculated as follows:
•	$95,000 for past economic loss, and
•	$100,000 for future economic loss.
58.	Because the claimant is not represented by a lawyer, his settlement must be approved in accordance with the Motor Accident Injuries Act 2017. 
59.	The claimant is aware that he is able to seek independent legal advice and has chosen not to retain lawyers.
60.	The claimant has advised me of the basis of the settlement and his understanding of the terms. I am satisfied he is aware of his right and is acting on his own free will in accepting the settlement having been given the opportunity to seek legal and medical advice.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
61.	The Personal Injury Commission (the Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020. 
62.	I am a Member of the Motor Accidents Division of the Commission. 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. 
63.	Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Injuries Act Guidelines (the Guidelines) continue to apply. 
THE RELEVANT LAW
64.	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. 
65.	Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a)	(deleted by amending legislation);
(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. 
SHOULD I APPROVE THE SETTLEMENT
66.	I am satisfied that the amounts allocated in the settlement for past and future economic losses accord with the financial records produced in this matter.
67.	The sum of $95,000 for past economic loss is within the range had the matter been assessed by a PIC Member. The insurer is to have credit for the sum of $90,910.72 paid in weekly statutory payments. 
68.	The sum for future economic loss is within the range had the matter been assessed by a PIC Member.
69.	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 the claimant establishes that the accident has caused a change in his most likely future circumstances.
70.	In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 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 the claimant has sustained a loss or diminution in his earning capacity and, if so, whether that loss or diminution will result in economic loss.
71.	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. 
72.	I am satisfied that the claimant is aware of his right to have his reasonable treatment expenses paid and note the extent of treatment at present is limited.
73.	Ms Gazdag 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.  
74.	I advised the claimant if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, he should refer the matter to the insurer to pay that charge as part of their obligation to pay reasonable treatment costs. 
CONCLUSION
75.	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 the claimant.
76.	I am satisfied the claimant is aware he can seek legal advice but does not wish to do so. 
77.	I am satisfied the claimant 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 the claimant is willing to accept the proposed settlement. 
78.	Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of the claimant’s claim for damages.
Legislation
79.		In making my decision I have considered the following legislation and guidelines:
•	the MAI Act;
•	Motor Accident Injuries Regulation 2017;
•	Personal Injury Commission Regulation 2020;
•	Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020;
•	the Guidelines, and 
•	Personal Injury Commission Rules 2021.