Ali v AAI Limited t/as NRMA Insurance
[2022] NSWPICMR 56
•26 September 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Ali v AAI Limited t/as NRMA Insurance [2022] NSWPICMR 56 |
| ClaimanT: | Hadi Ali by his appointed representative Sidra Rehman |
| Insurer: | AAI Limited t/as NRMA Insurance |
| Merit Reviewer: | Belinda Cassidy |
| DATE OF DECISION: | 26 September 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Claim for statutory benefits made under Motor Accident Injuries Act 2017 (2017 Act); claimant a pedestrian aged 6 years old sustained serious injury including head and brain injury; parents of claimant had no family support in Australia and one of claimant’s grandparents flew from overseas to provide support to parents and claimant’s four other siblings all under the age of 8; claimant sought reimbursement of his grandmother’s airfare ($1,300) in his statutory benefits claim; insurer denied liability to pay on basis expense was not a treatment and care expense under section 3.24(1)(c) of the 2017 Act; issue as to jurisdiction; not a medical assessment matter as no dispute about whether expense reasonable and necessary or related to accident; no dispute about the cost of the airfare; only issues were whether the expense was an expense incurred in connection with treatment and care provided to the claimant and if so whether the insurer had a liability to pay it; Held – Merit Review jurisdiction under schedule 2(1)(i) of the 2017 Act including inherent power to determine whether a service was treatment and care alternatively a Member would have power to determine the issue under schedule 2(3)(n) of the 2017 Act on the basis it was an issue of liability for ‘part of a claim’; grandmother provided attendant care services to claimant during his hospital stay on a gratuitous basis; her airfare was an expense incurred in connection with the attendant care service she provided however payment was not permitted under section 3.24(1) of the 2017 Act and was expressly prohibited under section 3.25 of the 2017 Act. |
| Determinations made: | In accordance with Division 7.4 of the Motor Accident Injuries Act 2017, my determination of this merit review matter is that: 1. The airfare of Ms Begum is an expense incurred in connection with the treatment and care she provided to her grandson Hadi Ali. 2. Hadi Ali is not entitled to statutory benefits for that expense in accordance with ss 3.24(1) and 3.25 of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
introduction
Hadi Ali is six years of age.
On 19 March 2022, Hadi was involved in a motor accident. I know very little about how his accident happened other than he was a pedestrian and was hit by a car insured by NRMA.
Hadi sustained a head injury in the accident and is an interim participant in the Lifetime Care and Support Scheme (LTCS).
Hadi’s father completed an application for personal injury (statutory) benefits for Hadi with NRMA and NRMA has admitted liability to pay statutory benefits for the first 26 weeks. NRMA has also accepted liability to pay ongoing statutory benefits including for treatment and care subject to its further investigations.
Hadi’s maternal grandmother, Mrs Muqqaddas Begum, flew to Australia from Pakistan soon after the accident, at the request of her daughter and a dispute has arisen in the claim about whether NRMA must pay for Ms Begum’s airfare. That dispute has been referred by Hadi’s mother to the Personal Injury Commission (the Commission) and the proceedings have been allocated to me for determination.
Hadi’s mother, Dr Sidra Rehman has been appointed by the Commission as Hadi’s representative in these proceedings.
I held a teleconference in the proceedings on 23 September 2022 and after hearing evidence from both of Hadi’s parents I have determined that NRMA is not required to pay for the airfare in dispute.
LEGAL FRAMEWORK
What claims can be made?
Hadi’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance for all motor vehicles registered in New South Wales and a scheme of benefits and compensation to persons injured in motor accidents in New South Wales.
Hadi is entitled to make two claims as a result of his accident:
(a) a claim for statutory benefits under Part 3 which includes treatment and care benefits and weekly benefits for injured people losing income because of their injuries, and
(b) a claim for lump sum damages for non-economic loss and certain economic losses under Part 4.
While a claim for statutory benefits can be made immediately after an accident, a claim for damages cannot be made until 20 months after the date of injury or earlier if the insurer concedes the injured person has a whole person impairment of greater than 10%[1].
[1] See section 6.14(1) of the MAI Act.
What treatment and care benefits can be claimed?
While almost all injured persons are entitled to some statutory benefits there are some disentitling provisions and there are also limits to the amount and extent of benefits available.
The entitlement to treatment and care benefits is set out in s 3.24 as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
The phrase “treatment and care” is defined in s 1.4 of the MAI Act as follows:
“(a) medical treatment (including pharmaceuticals),
(b) dental treatment,
(c) rehabilitation,
(d) ambulance transportation,
(e) respite care,
(f) attendant care services,
(g) aids and appliances,
(h) prostheses,
(i) education and vocational training,
(j) home and transport modification,
(k) workplace and educational facility modifications,
(l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,
but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”
Bearing in mind the nature of the dispute in these proceedings, the definition of “attendant care services” is relevant. That phrase is defined to mean “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
SUBMISSIONS
Hadi and his parents do not have legal representation. In the application that commenced these proceedings, Hadi’s mother, Dr Rehman says:
“I believe the payment for the air travel of Hadi's Grandma must be paid by the NRMA CTP as this expense was made in result of the accident. My son Hadi Ali was injured in MVA. I and my husband did not had capacity to handle the post incident situation hence needed support from family to support care of our son Hadi Ali.
I could not function in full capacity as primary carer and hence could not do my job. Hence if I do not call my mother then it was not possible to support my son.”
NRMA have submitted:
(a) the claimant seeks reimbursement for airfares paid to enable his grandmother to fly to Australia as a “support person for the family during this difficult time”;
(b) the cost of the airfare was $1,318.09;
(c) the claimant became an interim participant in the LTCS on 11 May 2022;
(d) the claimant requested an internal review of the decision to reject the claim for payment of the airfares and the insurer declined to undertake the internal review suggesting that LTCS be approached, which was “not accurate”;
(e) the airfare expense was incurred before the claimant became a participant in LTCS and therefore LTCS has no liability to pay for the airfares and any decision about reimbursement of the airfares lay with NRMA, and
(f) section 3.24 provides the entitlement to treatment and care and the airfares are not covered under s 3.24(1)(c) because Hadi’s grandmother is not his carer, and the travel is not related to accompanying the claimant for the purposes of treatment and care.
REVIEW OF THE EVIDENCE
The documentary evidence
On 19 March 2022, Kate Newmarch of the Children’s Hospital at Westmead wrote a letter “to whom it may concern” in support of Ms Begum being granted a visa saying Hadi had been admitted to the hospital that day, Ms Begum is the maternal grandmother of Hadi Ali and that Hadi’s parents have “no family or other informal supports in Australia” and that she is needed for “emergency family support”.
The application for personal injury benefits is dated 28 March 2022 and was signed by the claimant’s father Atif Nazar Ali. The application disclosed:
(a) Hadi was born in November 2015 and is therefore soon to turn seven years of age;
(b) the accident happened on 19 March 2022 at 6.50pm outside a community hall in south-west Sydney;
(c) the police report was referred to (although I have not been provided with a copy of it);
(d) the claimant’s injuries include a brain injury, multiple rib fractures, shoulder fracture, neck and spinal fractures, and multiple abrasions;
(e) the claimant was taken to Westmead Hospital, and
(f) fault was still being determined.
On 14 April 2022, NRMA wrote to the claimant’s mother accepting liability to pay statutory benefits for the first 26 weeks after the accident including “reasonable and necessary expenses for treatment and care”. Dr Rehman was invited to submit receipts or invoices for reimbursement, and she was encouraged to “support Hadi to continue with [his] treatment and rehabilitation”.
On 19 May 2022, Dr Rehman forwarded a copy of the receipt for her mother’s airline ticket to NRMA requesting it be paid. The ticket is in the name of Mrs Begum, issued on 19 March 2022 with a flight from Lahore to Dubai shortly before midnight on 19 March 2022 and a connecting flight from Dubai to Sydney on 20 March 2022 arriving in Sydney on 21 March 2022.
On 10 June 2022, the NRMA claims consultant advised Dr Rehman to forward the receipt to LTCS for reimbursement, as the claimant was now a participant in that scheme. Dr Rehman forwarded the receipt to icare[2] on 11 June 2022.
[2] The correspondence concerning Hadi’s participation in the LTCS scheme was sent and has been received from icare which provides insurance and care services to scheme participants.
On 20 June 2022, Dr Rehman requested an internal review of NRMA’s decision to decline payment of the air tickets.
On 22 June 2022, NRMA wrote to the claimant, Mr Hadi Ali declining his request for an internal review and noting that he has been accepted into the LTCS and that LTCS is managing his claim and that “the decision regarding reimbursement [of] the airfare tickets lies with LTCS, and should you disagree with their decision, this needs to be disputed with LTCS”. NRMA said there was no jurisdiction to conduct an internal review.
On 24 June 2022, NRMA wrote to the claimant’s mother advising that liability was accepted to pay Hadi’s statutory benefits beyond the first 26 weeks. These benefits were said to include “reasonable and necessary expenses for treatment and care”. NRMA indicated that it was still waiting for its investigator’s report and may alter its decision upon receipt of any additional information about the accident.
There is an email on the file dated 28 June 2022 from a team leader at icare refusing to reimburse the airfare advising that icare only pays for the cost of “treatment, rehabilitation and care that is directly for Hadi”.
Dr Rehman commenced the current proceedings on 28 July 2022.
Oral evidence
Dr Rehman and Mr Ali were available for the teleconference and answered a number of questions posed by me.
Dr Rehman advised that her son had a brain injury with bony bodily fractures and that he had been in a coma for a few days after the accident and had been a patient in intensive care during that time. While he has now been discharged from hospital and is at home, he is under the supervision of the brain injury rehabilitation team at Westmead hospital. Hadi is also having treatment at Campbelltown Hospital including physiotherapy, occupational and speech therapy as well as neurological and general practitioner review. She said Hadi has started school part-time and experiences severe cognitive fatigue at the end of each school day.
Dr Rehman is a medical doctor and she indicated that Hadi’s injuries included a fractured clavicle, and his ribs (2-9) were fractured in two places. She said he also had a fractured T1 vertebra.
Dr Rehman said she and Mr Ali have five children:
(a) Serina aged eight;
(b) Hadi aged six;
(c) Twins, Eman and Emina aged five, and
(d) Aleesa who is now one but was only eight months old at the time of the accident.
Dr Rehman said both her parents live in Pakistan and she has no siblings in Australia. Mr Ali said both his parents live in Pakistan and he has no siblings in Australia either. Dr Rehman and Mr Ali are married and live together with their children in south-west Sydney.
Mr Ali said on the night of the accident he rang his wife’s mother to ask her to come to Australia and help the family.
Mr Ali said when the accident happened, he was called and drove to the scene where he saw his son being treated by the ambulance officers. He said the police told him to take his wife and the children away from the scene and take them to the hospital. When he got to the hospital Hadi was there and was barely breathing. His wife was shocked and losing control. He said a nurse briefed them in a separate room and realised that the family needed accommodation and the hospital provided a studio for them. Mr Ali said he could not take his children home as he could not leave Hadi and his wife. Clearly Mr Hadi could not leave his other infant children at home without someone looking after them.
Mr Ali said he obtained a letter from the hospital to help with getting a visa and clear travel restrictions (the accident occurred during the Omicron wave of Covid).
Mr Ali told me at the time of the accident he worked for Service NSW but has left his employment to care for his family. Dr Rehman is on leave but remains employed as a doctor in the NSW health system. Both of Hadi’s parents have made claims for statutory benefits (on the basis of their psychological injury) and Serina has also made a claim.
I queried with Ms Zogopoulos whether the airfare was payable in either of the parent’s claims. Ms Zogopoulos is not the claims consultant in Hadi or his parents’ claim and could not advise whether the airfare could be paid in either claim.
Mr Ali advised me that Ms Begum has returned to Pakistan and that it was only about a month ago when NRMA or LTCS began providing home care and support for the family.
Dr Rehman advised that when her mother arrived, Ms Begum was given permission to undertake her isolation period in the family home providing care and assistance to the family unit. After her isolation was finished, she went to the hospital and remained with Hadi as she had a special bond with him. She stayed by his bedside until he was discharged which enabled Dr Rehman to come and go from her home and provide support to her husband and care for her other children.
I asked Dr Rehman what sort of things her mother did for Hadi while she was with him in hospital. She said her mother talked to the doctors and nurses and in particular advised them during the night when Hadi was in pain or needed something. She changed his nappies (as he was bedridden and unable to use the toilet). She bathed him and brushed his teeth and helped him to eat and drink.
Mr Ali said that after Hadi left intensive care, he needed a carer because he could not move and while his eyes were open, he did not speak and could not communicate.
Mr Ali said “it was impossible for me to run the house and this family” without his mother-in law. Dr Rehman agreed with this and said she needed her mother’s help “to remain alive”.
I asked Ms Zogopoulos if there was anything she wished to ask Hadi’s parents or any further submission she wished to make but she had no questions and no further submissions to make.
Issues of Jurisdiction
Disputes between insurers and injured persons in connection with statutory benefits claims are provided for in Part 7 of the MAI Act.
Within that Part there is the distinction between:
(a) Merit review matters – declared as such in Schedule 2(1) of the MAI Act. They are determined by merit reviewers;
(b) Medical assessment matters – declared as such in Schedule 2(2) of the MAI Act and are determined by medical assessors, and
(c) Miscellaneous claims assessment matters – declared as such in Schedule 2(3) of the MAI Act and determined by Members of the Commission.
Schedule 2 lists 25 individual merit review matters, five medical assessment matters and 17 miscellaneous claims assessment matter.
Is this a medical assessment matter?
Disputes about whether treatment and care is reasonable and necessary or related to the accident are medical assessment matters under Schedule 2(2)(b) and therefore something for a medical assessor to determine.
There is no issue raised by the insurer in these proceedings that Ms Begum’s travel to Australia was unnecessary or unreasonable in the circumstances. While I am not a medical assessor, having heard from the parents of Hadi in respect of the absence of any family support in Australia, the fact they had four other children to care for, the age of Hadi and the extremely serious nature of his injuries it seems to me that some form of emergency support was needed by the family while Hadi was in hospital.
There is also no dispute raised by the insurer that the reason for Ms Begum’s travel was related to the accident. The evidence from Dr Rehman and Mr Ali was that the air tickets were purchased soon after the accident when it became apparent, they would need support at home and in the hospital in the unfolding crisis.
I am therefore proceeding on the basis that the dispute between Dr Rehman as the representative of Hadi, and NRMA is not a dispute about whether Ms Begum’s airfare was reasonable and necessary at the time it was incurred and that there is no dispute about whether that airfare expense was related to the accident.
Is this a merit review matter?
The proceedings have been identified by the parties as a dispute about the cost of treatment and care. Schedule 2(1)(i) provides power to a merit reviewer to determine “whether the
cost of treatment and care provided to the claimant is reasonable for the purposes of section 3.24(1)(a)”.
There does not appear to be any dispute in the matter before me about whether the cost of the airfare in question is reasonable or not. The insurer has not raised any objection to the amount of the airfare in its submission. I note that Ms Begum travelled economy class and the cost of her ticket was a little over $1,300. If there was a dispute then in my view bearing in mind the distance travelled and the last-minute nature of the purchase, the cost of the ticket seems reasonable.
What are the real issues in dispute?
Having discussed the matter with the parties at the teleconference, the real issues in the proceedings are:
(a) whether Ms Begum’s travel to Australia is “treatment and care” within the definition of s 1.4 and if so,
(b) whether NRMA has any liability to pay for it under s 3.24(1).
There is no specific matter listed in Schedule 2 concerning a dispute about whether a particular item or service provided to an injured person is “treatment and care”. It is not a declared medical assessment matter or a declared merit review matter.
It is likely, in my view, that in resolving a dispute under Schedule 2(1)(i) there is an incidental or inherent power to determine whether something claimed as treatment and care is in fact treatment and care within the statutory definition before going on to determine whether the cost of it is reasonable. As a Merit Reviewer of the Commission, I would have power to determine that matter.
If I am incorrect, I note that Schedule 2(3)(n) provides power for a Member of the Commission to determine “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”. I am of the view that as a Member of the Commission I would have power to determine whether the claim for reimbursement of the airfare is “part of a [statutory benefits] claim” and whether NRMA is liable to pay for it.
IS THE COST OF THE AIRFARE PAYABLE IN THE STATUTORY BENEFITS CLAIM?
Were Ms Begum’s services treatment and care?
When considering the definition of “attendant care services” in s 1.4, I am comfortably satisfied that the care provided by Ms Begum to Hadi while he was in hospital after his catastrophic head injury comes with the definition of “treatment and care”.
Hadi was six years of age, with a serious brain injury. According to the evidence of his parents, he could not speak, he could not move, and he needed help with toileting, bathing, eating and drinking and this help was provided by his grandmother during the course of his hospital stay.
Ms Begum also played an important role in communicating with the doctors and nurses, noting of course that at the age of six, even if he had no brain injury, Hadi would have limited abilities to understand what his hospital treatment team was saying to him and would be unlikely to be able to meaningfully respond to their enquiries in any event.
Does NRMA have a liability to pay for the airfares?
Section 3.32 provides that a claimant cannot recover statutory benefits for treatment and care needs covered by LTCS. Icare has refused to pay for Ms Begum’s tickets on the basis they do not cover such expenses. On the basis of that response I find there is no prohibition under s 3.32 applicable to the recovery of the airfare expense.
Section 3.24(1) provides that Hadi is entitled to statutory benefits:
“… for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for [Hadi]:
(a)the reasonable cost of treatment and care;
(b)reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c)if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.”
While Ms Begum provided her care and services at no cost to NRMA or LTCS, the airfare was incurred getting her to the family and later, after quarantining, to Hadi’s bedside in order to provide that care and service.
The opening words of s 3.24(1) provide an entitlement to benefits for expenses that are incurred in connection with providing treatment and care to an injured person. However, s 3.24(1) then provides three types of expenses, incurred and connected to the provision of that treatment and care as follows:
(a) “The reasonable cost of the treatment and care”. This should be interpreted in my view as being related to the cost of the actual treatment and care provided. Ms Begum’s airfare is not a cost of treatment and care provided directly to Hadi, but an indirect cost incurred in connection with the treatment and care that was provided to Hadi by his grandmother while he was in hospital.
(b) The “reasonable and necessary travel and accommodation expenses” incurred by Hadi “in order to obtain treatment and care”. This is, in my view is not applicable to the airfare. Firstly, Hadi himself has not incurred the expense and secondly it is not his travel that is the subject of the dispute but his grandmother’s.
(c) For infant claimants, and those who require assistance to travel for care, another type of expense can be paid and that is the reasonable and necessary travel and accommodation expenses incurred by Hadi’s parents or carers “in order to accompany [him] while treatment and care … is being provided”. Again, Hadi was in hospital and he was not required to travel to obtain the treatment and care he was being given.
It is important to remember that Ms Begum’s treatment and care is, as I have found above, attendant care services and those services were provided by Ms Begum gratuitously, that is at no cost to either the CTP insurer or the LTCS scheme.
Section 3.25 of the MAI Act provides that, “no statutory benefits are payable … for expenses incurred in connection with the provision of gratuitous attendance care services”. In other words, NRMA cannot pay Ms Begum for the gratuitous care she provided to her grandson and any expenses incurred by her in connection with that service, such as her travel costs.
CONCLUSION
There is no doubt that Ms Begum’s travel to Australia is directly connected with Hadi’s accident and his injuries and that she was wanted to fill a need in the family unit created by Hadi’s serious injuries and the need for his parents to be with him at his bedside. Ms Begum’s gratuitous assistance has no doubt saved NRMA and LTCS scheme considerable expense. Had Ms Begum been unable or unwilling to travel to Australia NRMA or LTCS may have been required to pay for a special or night nurse to monitor the
six-year-old Hadi when he was on the ward and a team of childcare and domestic workers to care for the four children and assist the family while they were at the hospital. However, the scheme of statutory entitlement to benefits cannot pay everyone, everything they claim. The legislation is replete with provisions that regulate what can be claimed by injured people and their families and what insurers can or cannot pay.
The current motor accident injuries scheme does not appear to provide a legislative basis for Ms Begum’s airfare to be paid by the insurer in Hadi’s statutory benefits claim.
Whether the airfares can be claimed in Hadi’s damages claim (should he chose to make one) under s 4.5(1)(b) or in any claim for damages made by his parents, is not a matter which I can determine at this time[3]. Whether the airfares can be the subject of an advance payment against any claim for damages is also not something I can consider at this time.
[3] However, see for example Luntz, Harold, Assessment of damages for personal injury and death, 5th edition, section 3 “Expenses of visits by relatives” at page 585 ff and the commentary surrounding the case of Wilson v McLeay (1961) 106 CLR 523.
Therefore, the correct and preferable decision in relation to Ms Begum’s airfares incurred in travelling to Sydney to provide treatment and care to Hadi, and support for his family is that Hadi has no entitlement to payment of the airfare in his statutory benefits claim.
1
0