CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Insurance Australia Limited t/as NRMA Insurance v CBP [2023] NSWPIC 415 	
		
Claimant:	CBP	
		
insurer:	Insurance Australia Limited t/as NRMA Insurance	
		
Member:	Susan McTegg	
		
DATE OF DECISION:	31 July 2023
	
DATE OF REPLACEMENT DECISION:	14 August 2023
	
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claim for non-economic loss; claimant now 78 years of age; injured as passenger; left volar wrist fracture; rib fractures; L1 compression fracture; left sternal fracture; assessment of whole person impairment at 16%; following discussions offer of settlement increased by insurer; Held – accident adversely impacted quality of life; claimant made significant effort to facilitate recovery; settlement just, fair and reasonable and within the range of likely potential damages assessment; settlement approved.

determinations made:	Settlement Approval
Replacement Approval issued under s 6.23 of the Motor Accident Injuries Act 2017

INTRODUCTION
1.	On 12 October 2020 CBP (the claimant) was a front seat passenger in a vehicle driven by her husband when he experienced a microsleep causing the vehicle to veer onto the median strip, down an embankment landing on its roof (the accident).
2.	CBP sustained the following injuries in the accident:
•	left volar wrist fracture;
•	right rib fractures 2 to 5; 
•	L1 compression fracture with endplate injury with 20% loss of height, and
•	sternal fracture. 
3.	CBP has made a claim against QBE Insurance (Australia) Limited (the insurer) of the at fault vehicle, for lump sum damages. 
4.	The insurer accepted liability for the claim for common law damages.
5.	The insurer has accepted that CBP had non-threshold injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
6.	The insurer has conceded CBP has sustained a whole person impairment (WPI) greater than 10% and has agreed to pay CBP damages for non-economic loss in the sum of $150,000. 
7.	Because CBP is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act. 
8.	The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. 
THE RELEVANT LAW
9.	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 the requirements of the MAI Act or the Guidelines. 
10.	Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(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 CBP, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c)	CBP understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement. 
DOCUMENTS CONSIDERED
11.	I have considered the following documents uploaded by the insurer in support of the claim:

A1 	Insurer’s submissions 	14 July 2023 	
A2 	Application for personal injury benefits 	23 October 2020 	
A3 	Liability Notice – Benefits Up to 26 weeks 	19 October 2020 	
A4 	Liability Notice – Benefits after 26 Weeks 	12 February 2021 	
A5 	Application for Damages under Common Law 	28 August 2022 	
A6 	Correspondence from the insurer	23 March 2023 	
A7 	Offer of Settlement 	6 July 2022 	
A8 	Claimant’s acceptance of offer 	10 July 2022 	
A9 	NSW Police report 	19 November 2020 	
A10 	NSW Ambulance report 	12 October 2020 	
A11 	Discharge Summary- Lismore Base Hospital 	12 October 2020 	
A12 	Clinical records – Dr Ngaire Millener 	Various dates 	
A13 	Certificate of Capacity/Fitness 	15 October 2020 	
A14 	Certificate of Capacity/Fitness 	4 November 2020 	
A15 	Certificate of Capacity/Fitness 	2 December 2020 	
A16 	Certificate of Capacity/Fitness 	6 January 2021 	
A17 	Certificate of Capacity/Fitness 	3 March 2021 	
A19 	OT Rehab Consulting Initial Needs & Activities of daily Living Assessment report 	        16 November 2020 	
A20 	OT Rehab Consulting- Progress report 	23 December 2020 	
A21 	OT Rehab Consulting -Rehabilitation Closure report 	17 March 2021 	
A22 	AHHR Plan 1 (Physiotherapy) 	16 December 2020 	
A23 	AHHR Plan 2 (Physiotherapy) 	14 April 2020 	
A24 	AHHR Plan1 (Physiotherapy) 	2 May 2022 	
A25 	AHHR Plan (Remedial Massage) 	undated 	
A26 	Medical report – Angus Tadman 	17 June 2021 	
A27 	Medical report – Dr S. Kannangara 	25 March 2022 	
A28 	Medico-legal report – Dr S. Dalton 	3 April 2023 	
A29 	Medicolegal report – Dr Roger Rowe 	21 February 2023 	
REVIEW OF THE EVIDENCE
12.	CBP was 75 years of age at the date of accident and is now 78 years old. 
CBP was conveyed by helicopter to Lismore Base Hospital on 12 October 2020 following the accident. The injuries sustained were listed as follows:
•	fracture of the left distal radius;
•	right rib fractures 2 to 5;
•	L1 compression fracture with endplate injury and 20% loss of height, and 
•	sternal fracture. 
13.	The claimant underwent open reduction and internal fixture of the fracture of the left distal radius. She was discharged on 17 October 2020. 
14.	Subsequent to discharge the claimant attended Royal North Shore Fracture and Hand Clinic where the left wrist cast was removed and a removable splint fitted.  Her lumbar spine was assessed and an X-ray indicated it was stable. 
Angus Tadman, physiotherapist
15.	CBP commenced physiotherapy with Angus Tadman of St Leonards Physiotherapy on 12 December 2020. On 16 June 2021 Mr Tadman reported she had made a steady and successful functional recovery over the past six months with physiotherapy treatment and adherence to exercise. 
16.	Mr Tadman reported CBP was back to her pre-injury levels of ADL (activities of daily living) function and exercise.  He noted her compliance with exercise rehabilitation had been infallible. She had complained recently of non-specific cervical spine pain, stiffness and headaches in conjunction with a flare of lower back pain and stiffness. Her symptoms were thought to be inflammatory in nature and were limiting her from achieving a full recovery. 
T Rehab Consulting 
17.	On 2 November 2020 Marie Belger, occupational therapist undertook an initial needs and ADL assessment report. She reported prior to the accident the claimant whilst retired was fit and well and enjoyed walking for up to one hour per day. She resided in a three storey terrace with her husband.  She also attended a local gym for weights and aqua classes pre-COVID-19. She undertook weekly cleaning including vacuuming, mopping, dusting and cleaning 2.5 bathrooms. She completed clothes washing and swept leaves in the courtyard. She shared food shopping with her husband and cooked meals daily. 
18.	She presented with intermittent pain of the sternum, the low back and the right wrist. She noted residual abdominal swelling which was slowly improving. She also had a residual cough. Range of movement was reported as follows:
•	active range of movement of neck within normal range with reported stiffness;
•	bilateral shoulder and elbow movement with normal range however reduced left arm reach behind back. Reported pain in left elbow during flexion;
•	reduced left forearm external rotation;
•	restricted left wrist movement due to wearing a splint;
•	able to oppose fingers/thumb of left hand with minimal swelling of hand observed;
•	trunk flexion to mid-range;
•	bilateral trunk rotation to mid-range and reported fear of pain;
•	self-reported an enlarged abdomen post-accident, and
•	able to perform a half squat.
19.	At that time the claimant was unfit to complete heavier home based tasks including laundry, heavy cleaning and shopping.  She was only able to prepare simple meals and was not able to drive. 
20.	A progress report was completed on 23 December 2020. It was noted CBP could manage self-care tasks and light domestic cleaning tasks with pacing and use of assistive equipment. She was able to walk independently outside the home on level surfaces and had been referred for physiotherapy treatment. 
21.	A rehabilitation closure report was completed on 17 March 2021. CBP reported most of her symptoms had resolved but she continued to experience intermittent back pain and stiffness together with the recent onset of neck and shoulder pain. It was suggested the shoulder pain and tension was likely due to overdoing her exercise. 
22.	She had returned to independent driving and had returned to the gym for aqua exercise. She had resumed shopping with her husband and could walk moderate distances on even terrain.  She was able to undertake short periods of vacuuming, mopping and sweeping. She had resumed laundry tasks but required assistance with heavy lifting. It was considered with continued participation in physiotherapy and independent exercise CBP would continue to progress with her recovery.
Dr Siri Kannangara, rheumatologist
23.	CBP saw Dr Kannangara on 24 March 2022 in relation to her complaints of cervical pain and suprascapular pain radiating down the arm with weakness and nocturnal pain. 
Dr Kannangara reported the right upper limb showed evidence of weakness of shoulder flexion, shoulder external rotation, wrist dorsiflexion, thumb abduction and the interossei, when tested against resistance.  He considers the combination of motor signs in the absence of reflex changes was secondary to a brachial plexopathy rather than a radiculopathy. He referred CBP to a McKenzie trained physiotherapist in North Sydney.  
Dr Seamus Dalton, rehabilitation specialist
24.	Dr Millener referred CBP to Dr Dalton. He provided a reported dated 3 April 2023. He reported following discharge from hospital she commenced physiotherapy and started to improve although in the last few months she had noticed an increase in lumbar pain aggravated by stationary postures. He also reported she complained of stiffness in her neck and soreness which was variable extending across the top of both shoulders.
25.	Dr Dalton also reported her wrist was occasionally sore, particularly with pulling and pushing tasks, she has a feeling of weakness and some discomfort when taking weight through her left arm. He reported she finds it uncomfortable to carry heavy bags of shopping or tucking in sheets. He reported her back was impacting tasks which involving bending such as cleaning the toilet and she occasionally gets pain getting up and down from a chair and in and out of bed.  
26.	Dr Dalton concluded whilst the end-plate fracture at L1 had probably healed the claimant’s pain was probably caused by lumbar facet joint osteoarthritis which was aggravated by the increased lumbar lordosis, her tight hip flexors and biomechanical issues which have arisen over time as a result of the vertebral body fracture. He recommended additional physiotherapy including targeted core stability exercises and also the need for improved flexibility through the hip flexors. Dr Dalton thought the neck stiffness was related to multilevel spondylotic change and the residual discomfort in the wrist consistent with the injury. 
Dr Roger Rowe, orthopaedic surgeon
27.	Dr Rowe assessed the claimant at the request of the insurer on 9 February 2023 and provided a report dated 21 February 2023.
28.	Dr Rowe reported no problem with the ribs or sternum. The left wrist ached when tucking a sheet under a mattress and CBP had some restriction of wrist movement which interfered with her yoga exercises and when fastening a zipper on her back. 
29.	He reported a low back ache which is variable but associated with prolonged standing and also when getting up and down from the floor or a chair or in and out of a car. CBP reported an ache in the neck extending to the right trapezius and shoulder region. She also had a restricted range of movement. 
30.	In relation to daily activities Dr Rowe reported CBP does some cooking, cleaning and washing. Her husband does the vacuuming and shopping.  She is able to drive and walks regularly for about 50 minutes on three or four days a week. Since the accident she has attended yoga and pilates and now attends the gym twice a week for strengthening and aerobics. 
31.	Dr Rowe reported as a result of the accident CBP has sustained the following:
•	fractured right ribs 2, 3, 4 and 5;
•	fractured sternum;
•	fractured left distal radius requiring open reduction and internal fixation, and
•	fracture of the superior endplate of L1 vertebra with 20-25% compression.
32.	He also noted widespread spondylosis consistent with her age not related to the accident. 
33.	Dr Rowe did not consider the claimant required further treatment. He assessed a WPI of 16%. 
Teleconference on 31 July 2023
34.	I held a teleconference on 31 July 2023. CBP appeared in person and the insurer was represented by Ms Smadar Rapaport.  The offer proposed by the insurer and accepted by the claimant was the sum of $120,000.  
35.	CBP stated she has ongoing lower back pain. She has commenced a targeted physiotherapy program and hopes it will help her to manage her pain and improve her freedom of movement.
36.	She also has ongoing neck and shoulder pain causing her limited movement of her neck and sometimes difficulty driving.  I noted there was no record of injury to the neck and shoulder at the time of the accident and the medical opinion suggests it is due to  unrelated spondylotic change.
37.	CBP stated the injury to her wrist limits what she can do.  She finds too much pressure on her left wrist causes it to become sore and swell.  She can no longer do some of her pre-injury yoga exercises and has difficulty with some household tasks, for example, tucking sheets under a bed.  
38.	CBP stated following the accident her upper and lower abdomen was very swollen.  Whilst the swelling has largely subsided she still has a smaller space between her breasts and her midriff which she stated looks like “a protruding abdomen”.  CBP underwent investigations but no abnormality was found. However, she described it as very uncomfortable.  
39.	CBP stated she has difficulty with bending. She has trouble with cleaning tasks which require bending, for example, cleaning the bathroom, she has difficulty putting on underwear, in getting in and out of cars, in getting up and down from chairs and in getting in and out of bed. 
40.	CBP informed me she did not obtain legal advice because she did not want to cause herself more stress.  She confirmed she had worked very hard on her recovery. 
41.	I informed Ms Rapaport that I was not satisfied the offer was within the likely range of damages the claimant would receive if the matter was to proceed to an assessment of damages.  I referred Ms Rapaport to a number of comparable decisions. Ms Rapaport indicated she was aware of comparative settlements and that this settlement figure had been arrived at after negotiation with CBP. I provided Ms Rapaport with an opportunity to obtain further instructions.
42.	After a short recess Ms Rapaport referred me to the decision of Member Ford in AAI Limited trading as GIO v Solis [2022] NSWPIC 472 which had some similarity to this matter and where the assessment of damages for non-economic loss was $150,000. She informed me she was instructed to increase the offer of settlement to $150,000.  CBP indicated she was prepared to accept the offer.  
43.	Ms Rapaport also confirmed the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay any charge as part of their obligation to pay statutory benefits. 
SHOULD I APPROVE THE SETTLEMENT
44.	Section 1.4 of the MAI Act defines non-economic loss as: 
(a)	pain and suffering;
(b)	loss of amenities of life;
(c)	loss of expectation of life, and
(d)	disfigurement. 
45.	The current maximum payable for non-economic loss is $605,000. 
46.	The extent of CBP’s recovery to date has undoubtedly been assisted by the fact that she was very fit before the accident and has made a significant effort to facilitate her recovery. However, notwithstanding that recovery the accident has adversely impacted 
CBP’s quality of life and, it is likely there will be an inexorable increase in her pain and disability as she ages. 
47.	I am satisfied that CBP is aware of her right to have her reasonable treatment expenses paid for the remainder of her 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. 
48.	I am satisfied CBP understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
49.	The insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement sum as part of their obligation to pay statutory benefits.
CONCLUSION
50.	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 CBP. 
51.	I am satisfied CBP is aware she can seek legal advice but does not wish to do so. 
52.	I am satisfied CBP 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 CBP is willing to accept the proposed settlement. 
53.	Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of $150,000 in respect of CBP’s claim for damages.