Bajo v iCare

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Bajo v iCare [2024] NSWPICMR 69
CLAIMANT:	Kenneth Bajo
INSURER:	iCare
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	30 September 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute about whether cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of section 3.24(1) (entitlement to statutory benefits for treatment and care) attendant care services; everyday tasks; home modification; tree slashing; support worker; transport assistance; jurisdiction; schedule 2(1)(i); Held – the reviewable decision is set aside.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION The reviewable decision is about whether the cost of treatment and care provided, or to be provided, to the claimant is reasonable for the purposes of s 3.24(1) (Entitlement to statutory benefits for treatment and care) of the Motor Accident Injuries Act 2017 (the MAI Act) and is therefore a merit review matter under Schedule 2(1)(i) of the MAI Act. 1. The reviewable decision is set aside and the following determination is made: (a) Quote 1 is a reasonable cost of treatment and care and subject to the outcome of a medial assessment dispute, is payable by the insurer; (b) Quote 2 is not a reasonable cost of treatment and care and therefore not payable by the insurer; (c) car washing and garage cleaning are costs of treatment and care and subject to medical assessment as to the number of hours that are reasonable and necessary, if any, under s 3.24(2), is a cost payable by the insurer; (d) prima facie, maintenance tasks in the home is a cost of treatment and care but depending on the nature of the task some may fall outside the scope of treatment and care therefore no formal determination is made. Once medical assessment is determined, the insurer is to redetermine the extent to which home maintenance tasks are treatment and care and issue a new determination; (e) the cost of setting up a work area for guitar maintenance is a cost of treatment and care and subject to the outcome of a medical assessment, is a cost payable by the insurer; (f) the cost of assistance with transport to cafes and other hospitality places by way of additional support worker hours is not a reasonable cost of treatment and care; (g) the cost of assistance with transport and shopping at Bunnings and other retail outlets or shopping centres is not a reasonable cost of treatment and care, and (h) the insurer is directed to redetermine the reasonable costs of treatment and care payable following the outcome of a medical assessment by applying the above determination regarding items determined in this merit review to be “treatment and care” within the meaning of the MAI Act and the insurer is to issue a new determination.

STATEMENT OF REASONS

INTRODUCTION

There is a dispute between Kenneth Bajo (the claimant) and the insurer about whether the cost of treatment and care is reasonable for the purpose of s 3.24(1) of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant was involved in a motor accident on 8 November 2018.
The claimant lodged an application for personal injury benefits.
On 1 March 2024 the insurer declined part of the claimant’s claim for costs of treatment and care.
The claimant requested an internal review of the insurer’s decision of 1 March 2024.
On 24 April 2024 the insurer issued their internal review decision in which they partly affirmed and partly varied their 1 March 2024 decision.

The claimant has requested a merit review of the insurer’s internal review decision dated 24 April 2024 (the Application).

TELECONFERENCE, ISSUES AND JURSIDICTION

There are three items in respect of which the claimant seeks costs of treatment and care in dispute:
(a)    front gate replacement;
(b)    slashing, tree-lined clearing and removal of trees (tree slashing), and
(c)    additional personal assistance/support worker hours (additional support worker hours).
At the teleconference on 9 July 2024 the parties confirmed the dispute about the front gate is whether front gate replacement is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident. That dispute is a matter for a medical assessment pursuant to Sch 2(2)(b) of the MAI Act. Accordingly, that dispute will not be determined in this merit review. The claimant will lodge an application for a medical assessment.
The parties also confirmed there is a dispute about whether additional support worker hours and tree slashing is reasonable and necessary but in addition, there is a dispute about whether these items are treatment and care for the purpose of s 3.24.
To the extent the parties dispute whether tree slashing, and additional support worker hours are reasonable and necessary, the claimant will lodge an application for a medical assessment. To the extent the dispute about tree slashing and additional support worker hours concerns whether such services are “treatment and care” for the purpose of s 3.24 I have concluded that I have jurisdiction to determine that part of the dispute for the reasons outlined below.

Jurisdiction

The proceedings are identified by the parties as a dispute about the reasonable 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)”.
In addition to questions for medical assessment, an issue in the proceedings is whether additional support worker hours and tree slashing is “treatment and care” within the definition of s 1.4 of the MAI Act.
There is no express matter listed in Sch 2 of the MAI Act concerning a dispute confined to whether a particular item or service provided to an injured person is “treatment and care”. However, the starting point is cl 3.24. Relevantly, s 3.24(1)(a) provides that an injured person is entitled to statutory benefits for “the reasonable cost of treatment and care”. It follows from this that if a cost is not a cost “of treatment and care” it is not a “reasonable cost of treatment and care” payable under s 3.24(1)(a).
Schedule 2(1)(i) provides that a dispute about “whether the cost of treatment and care provided or to be provided to the claimant is reasonable” is a merit review matter. Section 3.24(1)(a) is clearly the precursor to/genesis of the jurisdiction prescribed in Sch 2(1)(i) in the same way s 3.24(2) is the precursor to, or provides the foundation for, the medical assessment jurisdiction prescribed in Sch 2(2(b).
If the merit review jurisdiction in Sch 2(1)(i) is to be narrowly construed so as to only prescribe jurisdiction over the question of whether the cost itself is reasonable it would require the foundation for the jurisdiction that is, s 3.24(1)(a), to be fragmented into different parts. Disputes about whether a cost is a cost of treatment and care and therefore a reasonable cost are likely to arise in many instances. If only the question of whether the cost itself is reasonable can be determined as a merit review, claimant’s would need to lodge multiple applications for example, by potentially lodging a miscellaneous claims assessment application to determine whether a service is “treatment and care”, a merit review application about the cost itself (because that is clearly a merit review matter) and a medical assessment application if there is also a dispute about whether the service is reasonable and necessary.
The guiding principle in s 42 of the Personal Injury Commission Act 2020 (NSW) (PIC Act) requires the just, quick and cost effective resolution of the real issues in the proceedings. In my view, having regard to the guiding principle, it is not likely the intention of the MAI Act that the foundation for jurisdiction contained in s 3.24(1)(a) should be fragmented into various sub-disputes with only one fragment of a dispute under s 3.24(1)(a), being the very narrow issue of whether a cost is reasonable, to be determined as a merit review.
This conclusion is also reached when regard is had to the close relationship between the wording in s 3.24(1)(a) and Sch 2(1)(i). That is to say, that for the purpose of resolving a dispute under Schedule 2(1)(i) about whether a cost of treatment and care is reasonable, I consider it inherent in the wording of the two provisions that there is power to determine whether something claimed as “treatment and care” is in fact “treatment and care” within the statutory definition. In my view, this must be so because s 3.24(1)(a), being the precursor to jurisdiction under Sch 2(1)(i), entitles the claimant to the “reasonable cost of treatment and care” meaning that if a cost is not a cost of “treatment and care” it follows that it is not a reasonable cost of treatment and care.
I therefore conclude I have jurisdiction as merit reviewer to determine the dispute concerning whether the cost of tree slashing, and additional support worker hours is a reasonable cost of treatment and care and inherent in this is jurisdiction to determine whether these items meet the definition of “treatment and care” in the MAI Act.
At the teleconference the parties agreed there is jurisdiction to determine whether additional support worker hours and tree slashing is “treatment and care” and if so, whether the costs are reasonable as a merit review matter. The parties agreed the balance of the issues raised are matters for medical assessment and will not be determined in this merit review. Accordingly, to the extent this merit review addresses the costs of additional support worker hours and tree slashing it is not to be taken as expressing any view, or making any finding or determination as to whether such costs are reasonable and necessary in the circumstances or relate to the injury caused by the motor accident. That is a question for medical assessment under Sch 2(2)(b) of the MAI Act.

SUBMISSIONS

The claimant submits that in the context of the claimant’s circumstances the claim for tree slashing falls comfortably within the definition of “treatment and care” in the MAI Act. The claimant relies on the decision of Suttie v QBE Insurance (Australia) Limited [2024] NSWPIC 355 (21 June 2024) (Suttie), a decision where certain maintenance of a water irrigation system supplying water to claimant Suttie’s home was considered to be attendant care services and therefore a cost of treatment and care in Suttie’s circumstances. The claimant submits that the cost of tree slashing claimed by the claimant for property maintenance is akin to the maintenance costs claimed by Suttie and therefore should also be accepted as being a cost of treatment and care.
The claimant submits the insurer’s refusal to pay additional support worker hours is “patently mean” and “when viewed in the totality of the circumstances is quite distinguishable from the Kincare [support worker] services currently being provided…”. The claimant submits there “can be no real argument that a “support worker” is within the definition of attendant care, not only because it is accepted that the definition includes same, but the current care regime includes an allowance for such assistance for the claimant…”
The insurer submits provision of tree slashing services and additional support worker hours is not considered treatment and care under the MAI Act. The insurer contends tree slashing, property clearing, and tree removal services are services performed by professionals which are required for maintenance of any property of the claimant’s size.
The insurer submits the request for additional support worker hours falls outside the scope of treatment and care as it relates to assistance with hobbies, going to cafes, Bunnings and other retail outlets for leisure and personal enjoyment rather than fulfilling needs “reasonably necessary for the claimant’s well-being.” The insurer notes they are currently funding five hours per week of attendant care services through Kincare to assist with domestic tasks including shopping.

REASONS

The legislation

Section 3.24 relevantly provides:
“(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) ...”
Section 3.31 relates to limits on statutory benefits for particular treatment and care. The limits under s 3.31 are not relevant to this matter. However, pursuant to s 3.31(3) the insurer is not prevented from paying the costs of treatment and care of a kind not covered by the MAI Act and therefore of a kind the insurer is not required to pay as statutory benefits. In other words, s 3.31(3) permits payment of costs that may not be reasonable costs of treatment and care, if payment is agreed by the insurer.
Section 3.31(3) gives the insurer a discretion to pay meaning the insurer may exercise the discretion at any time not to pay, or not to continue to pay, if it is not required to pay the costs as statutory benefits.
Pursuant to s 1.4 of the MAI Act “treatment and care” means the following:
“(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.”
Pursuant to s 1.4 of the MAI Act “attendant care services” means:
"… services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
The list of examples in the definition of “attendant care services” is not expressed as being exhaustive. However, the primary definition of attendant care services is “assistance… with everyday tasks” and the list simply provides examples of what might be considered “everyday tasks” for the purpose of the definition. Accordingly, the question is whether the costs of the kind of services in dispute fall within the definition of attendant care services as being “assistance… with everyday tasks”.

Tree slashing

There are two quotations in issue:
(a) a quote from Scott Bartlett, handyman, for $1,750 for five days labour using the claimant’s tools to clear low lying branches on the property and fence line to allow safe clearance and access for the claimant’s mower, remove two dead trees and move debris to fire piles on the property. It is understood this work primarily relates to maintenance of the yard immediately surrounding the claimant’s dwelling (Quote 1), and
(b) a quote from Superslash Slashing and Fence Line Clearing for $4,303, which is said to represent work the claimant would have done over the past five years, but for the accident and includes significant clearing works in the back paddocks, including removal of fallen trees and felling other trees. The work is said to include the use of a tractor (Quote 2).

Quote 1

Quote 1 dated 25 January 2024 describes the services as removal of two small dead trees, as well as all low hanging branches which are a danger to tipping over the lawn mower on impact with the roll cage. As noted, it is understood this work relates to the yard immediately surrounding the home on the property.
As noted above, examples of everyday tasks considered attendant care services include “home maintenance”. I do not think there can be any dispute that prima facie, yard maintenance is “home maintenance” and in turn “attendant care services”. It is, in my view, well established that general yard maintenance such as lawn mowing, pruning plants and weeding falls under “attendant care services” and is therefore “treatment and care” for the purpose of s 3.24 of the MAI Act.
Whether the specific cost claimed is reasonable for the purpose of s 3.24(1)(a) must be considered in the context of the claimant’s particular circumstances, which include:
(a)    the claimant resides on a rural property which is not a working or hobby farm/does not generate income from the land;
(b)    prior to the accident the claimant had attended, for many years, to various home maintenance at the property, which included removing lower branches and small trees with a pole saw and chain saw kept on the property and mowing the lawn;
(c)    but for the accident, the claimant would have continued to attend to regular maintenance at the property, including this yard work and lawn mowing;
(d)    but for the accident the claimant would have carried out approximately five days of labour himself in the 12-month period (approximately) since he returned to live at the property after the accident, in November 2023, to maintain the yard around the home in a suitable condition for ongoing mowing.
I am not bound by Suttie, including the medical review panel. However, I agree with observations made by the medical review panel referenced by the claimant that
“it is reasonable that someone living on a large rural property … would have a greater need. But that would only be to maintain her home and the block/fencing surrounding it. Maintaining the property beyond that is not considered reasonable domestic assistance”.
Quote 1 is understood to be work the claimant would have undertaken in the 12 months (approximately) since returning to reside at the property to maintain the block/fencing immediately surrounding the home such that the claimant would now be capable of ongoing maintenance himself with his ride on mower. The quote represents five days of maintenance the claimant would have done over the past year. In these circumstances, I consider it a reasonable cost of treatment and care for the purpose of s 3.24 of the MAI Act and therefore payable by the insurer.
I do not understand there to be any dispute about whether the cost itself is reasonable.
Pursuant to Sch 2(2)(b) the question of whether this work is reasonable and necessary in the circumstances or relates to the injury resulting from the motor accident will need to be the subject of an application for a medical assessment.

Quote 2

This quote is for work relating to maintenance of back paddocks beyond the block/fencing surrounding the home and is said to represent work the claimant would have undertaken over the past five years, but for the accident (that is, the claimant’s inability to maintain the back paddocks over the past five years has culminated in the need for the works set out in Quote 2 to restore the paddocks to the condition they would have otherwise been in.
I agree with observations of the medical review panel in Suttie that home maintenance needs for a person living on a rural property may be greater. I also agree with their observation that maintaining the property beyond the block/fencing surrounding the home is not reasonable attendant care services for the purpose of s 3.24.
Quote 2 is for work beyond the block/fencing surrounding the home. In addition, the following circumstances of the claimant are relevant:
(a)    whilst there is a long history of the claimant having responsibility, or shared responsibility with his father, for property maintenance, the property was the home of the claimant’s mother, father and for a period of time the claimant’s mother’s new partner after his father passed and his mother re-partnered;
(b) in the period from around 2010 until the accident the claimant was not residing at the property and accordingly, the claimant’s assistance with maintenance of the property was assistance for the benefit of others (that is, his mother, his father and his mother’s new partner) and not for himself. Statutory benefits for such assistance (assistance to others) are not payable under s 3.24 of the MAI Act;
(c)    the claimant inherited 50% of the property when his father passed away but did not commence to reside at the property. He purchased the remaining 50% of the property from his mother in 2020 after his mother went to live with her sister (and later relocated to a nursing home) in 2019, and
(d)    after the claimant’s mother moved in with her sister in February 2019 the property remained vacant until November 2023 when the claimant first commenced living at the property after the accident.

As the claimant was not residing at the property, maintenance the claimant would have carried out but for the accident until February 2019 would have been for his mother’s benefit and therefore would be attendant care services to others. As the claimant’s mother continued to own half of the property until 2020 (both the claimant and his mother being absent from the property at this time), maintenance the claimant would have continued to do until 2020 would have been of equal benefit for his mother (by way of maintaining a second property for both of them, both having the same financial interest at the time and neither residing at the property).
Although the claimant became the sole owner of the property in 2020, he did not reside at the property from 2020 until November 2023. It is understandable that the claimant did not sell or lease the property in this period. However, it is reasonable to assume these options were open to him. Whilst it is understandable that the claimant did not pursue one of these options, I do not think the cost of maintaining a second property (the claimant already receiving statutory benefits for attendant care services in connection with his residence at the time in Sandy Beach) on behalf of the claimant is a reasonable cost payable under the statutory benefits scheme.
The claimant only began to occupy the property post-accident in November 2023 that is, approximately 12 months ago. In circumstances where the claimant (and for part of the period, his mother) left the property dormant for approximately 4 years and 9 months (almost five years from February 2019 until November 2023) after the accident the need for more extensive maintenance to the back paddocks such as that described in Quote 2 was likely to arise.
The more significant work described in Quote 2 reflects the cumulative effect of a lack of maintenance over the previous five years. It reflects the need for professional tree slashing and associated work using professional equipment, including a tractor rather than the type of “handyman” work the claimant carried out with his own equipment (Quote 1, on the other hand proposes a handyman to do the work using the claimant’s equipment).
Whilst I accept but for the accident the claimant would have carried out regular property maintenance it seems unlikely to me that the claimant would have been able to attend to the significant clearing works described in Quote 2 himself and that a professional service would have been required regardless. Whilst a professional service might not be required if the claimant had been able to continue regular maintenance over the five years since the accident:
(a)    such maintenance was for the benefit of the claimant’s mother (and at varying times the claimant’s father and his mother’s new partner), being the person(s) residing at the property, until at least February 2019;
(b)    such maintenance continued to provide benefit to the claimant’s mother until 2020 whilst she continued to own half of the property and therefore continued to have equal interest in the vacant property;
(c)    the claimant did not live at the property at any time after the accident, until November 2023;
In the above circumstances, I do not consider attendances the claimant would have made to the property to carry out maintenance whilst not residing at the property during the five years since the accident to fall within “assistance to [the claimant] with everyday tasks”, particularly having regard to the assistance provided to the claimant with everyday tasks at his own home in Sandy Beach. It therefore does not fall within the definition of “attendant care services”.
Instead, quote 2 is the cumulative effect of the claimant’s inability to:
(a)    provide assistance to his mother from the date of the accident until February 2019;
(b)    maintain a second, dormant property equally for his and his mother’s benefit until 2020 (both having the same financial interest whilst neither living at the property), and
(c)    maintain a second, dormant property from 2020 until November 2023.
It must be borne in mind that the costs of treatment and care in issue fall under a statutory regime, which clearly limits benefits payable. Whilst the position may be different at common law in a claim for damages, I am of the view s 3.24 does not contemplate payment of statutory benefits for maintenance of a second property as a reasonable. Further, the cumulative effect of a lack of maintenance in respect of a second property is not a reasonable cost of treatment and care. I also do not consider the costs of maintaining a second home where the claimant does not reside to be “assistance … with everyday” tasks.
In my view, for a home maintenance service to amount to assistance with “everyday tasks” there must be some nexus to a claimant’s place of residence and the things they do in or about their place of residence on a daily or other regular basis. Relevantly, in Suttie, it was found that certain maintenance of the water irrigation system was an everyday task, and therefore attendant care services, because it was “necessary” for the provision of water supply to the home where claimant Suttie resided.
Whilst the need for the work is now, with the claimant now residing at the property, one must look at what the claimant says he would have done, but for the accident resulting in the need for the current services. On the evidence before me, and as contended by the claimant, the need for the current services is the result of the work the claimant says he would have done over a period of five years since the accident for the benefit of others residing their and/or to maintain a second property. On an analysis of the circumstances during this five year period, which gave rise to the cost claimed, the cost is not reasonable.
Further and in the alternative (that is, even if this were not a second property and the claimant had been living there for the five years over which there was a lack of maintenance), I agree with the observations of the medical review panel in Suttie that the cost of maintaining land beyond the block/fencing surrounding the home is not a reasonable cost of treatment and care. Quote 2 relates to the back paddocks that is, land beyond the block/fencing surrounding the home.
For these reasons, I conclude Quote 2 is not a reasonable cost of treatment and care for the purpose of s 3.24(1)(a) and therefore not payable by the insurer.

Additional support worker hours

The claimant is currently provided with a support worker for five hours per week to assist him with domestic duties, including shopping and other home maintenance.
The claimant seeks an additional six hours per week to assist with:
(a)    car washing;
(b)    cleaning the garage;
(c)    completing maintenance tasks within his home;
(d)    setting up a work area to allow him to maintain his guitars;
(e)    assist with transport to cafes and other hospitality places for social outings, and
(f)    assist him with transport and shopping at Bunnings and other retail outlets or shopping centres to purse his interests and hobbies.
The additional services requested appear to be a mix of domestic duties and engagement in leisure or community activities.
I have not been provided with a quote or invoice regarding the additional support worker hours and there is no breakdown of hours among the various tasks claimed. The claim is extracted from a global recommendation in an ipar report of six hours per week of support worker assistance for an initial 12-week period to assist with the tasks listed above.
The breakdown of hours across the above tasks would require a medical assessment regarding whether services for each task identified by the claimant are reasonable and necessary in the circumstances or relate to the injury resulting from the accident. This would necessarily include whether the number of hours claimed for each task are reasonable and necessary.
In so far as whether the tasks in respect of which the services are claimed fall within the definition of treatment and care they fall for consideration under the definition of “attendant care services”. The list of examples in the definition in s 1.4 is not exhaustive but does provide some guidance as to what would be considered attendant care services. However, the primary definition is the first limb of s 1.4 being services that aim to “provide assistance to people with everyday tasks…”. It is clear from the examples in s 1.4 that “everyday” tasks is not intended to be interpreted literally that is, that it must be a task carried out daily. However, there must be some degree of regularity in the sense the tasks are “usual” or “typical”. Changing bed linen weekly or mowing lawns on a weekly or fortnightly basis would, for example, fall within “everyday tasks” of the kind contemplated by the definition of “attendant care services”.

Car washing

I consider car washing an everyday task under “attendant care services” as this is a usual or typical household task carried out on a regular basis (for example, monthly). However, without evidence of the hours or amount claimed for this item I am unable to determine if the cost is reasonable.

Completing maintenance tasks at home

Completing maintenance tasks at the claimant’s home where he lives is prima facie an everyday task under “attendant care services”. However, whilst some of the tasks described would be attendant care services on the basis they form part of the usual or routine upkeep of a home, other tasks potentially fall outside the scope of everyday tasks.
Without evidence of the hours, more precise identification of the home maintenance tasks, or the amount claimed as additional hours I am unable to say whether the cost is reasonable.
Some of the tasks claimed appear to be one-off tasks such as buying large electrical items for a new home (the claimant having rebuilt on the property) or items for furnishing a new home.
Whilst some maintenance tasks are described, medical assessment is required to determine the extent to which additional home maintenance is reasonable and necessary in the circumstances or relates to injury resulting from the motor accident before the question of whether the cost is reasonable can be determined.
The claimant has relocated to the property from a unit he had resided in at Sandy Beach. The insurer seems fixed on the idea that at the claimant’s old property (a unit) 5 hours of assistance was necessary and there should be no reason for this to change. It is likely, however, that as a result of moving from a unit to a rural property the claimant’s domestic assistance and home maintenance needs have changed (and likely increased). Yard maintenance needs, for example, have likely increased even when only accounting for the yard/fencing surrounding the home and not the back paddocks. One would expect there to be a reassessment of the claimant’s domestic assistance and home maintenance needs as a result of moving from a unit to a large property in any event.
As there is a medical dispute in relation to home maintenance, I do not make a final determination regarding whether all or any part of the claim for additional home maintenance services is treatment and care for the purpose of s 3.24. Instead, this issue is to be redetermined by the insurer following the outcome of a medical assessment.

Cleaning out the garage

It is not entirely clear whether this is claimed as a regular service or as a one off service, noting there is a history of garage flooding. Prima facie, I consider cleaning out the garage of a home in which the claimant resides to be an “everyday task” for the purpose of the definition of attendant care services regardless. Whilst it may not be a task carried out daily, weekly or even monthly, maintaining cleanliness of a garage area attached to a home, in my view, forms part of the usual cleaning one would do to maintain their home, even if it is only carried out for example, every six months or once a year.
However, without more specific information regarding the nature of the cleaning, how often it would be carried out and how many hours of the additional support worker hours claimed would be dedicated to this task I am unable to determine the question of whether the cost is reasonable. Medical assessment would first be required, in my view, to determine the number of hours, if any, that are reasonable and necessary or relate to the injury resulting from the motor accident.

Set up work area to allow maintenance of guitars

On one view, this part of the claim relates to the claimant’s leisure/hobby activities. However, it can also be said it relates to the claimant’s usual activities in and about his home albeit that his usual activities include engaging in a hobby.
Whilst the guitar maintenance itself is clearly a hobby activity that falls outside the definition of attendant care services, preparing an area within the claimant’s home to enable the claimant to carry out this activity in my view, falls within the definition. It might be likened, for example, to regular cleaning or setting up furniture or television equipment in a person’s lounge room that is exclusively used for leisure activities such as a home theatre, gaming room, watching television or playing cards or boardgames. I do not think there can be any doubt that provision of services in connection with general maintenance, set up or cleaning of a lounge room or a media room where, but for the accident, the injured person would have carried out this work themselves falls within attendant care services.
Whilst the guitar maintenance itself is a hobby, I do not think the line between whether an activity is a domestic or a leisure/hobby activity for the purpose of the definition of attendant care services is as clear as the insurer suggests in their submissions. One must look at the particular task itself and not the activity it would lead to, if carried out. I accept the claimant’s evidence that but for the accident he would have set up the work area himself. In my view, the initial set up of a work area for the claimant to carry out guitar maintenance falls within the definition of attendant care services in the circumstances of this matter.
Further, the definition of treatment and care in s1.4 includes home modifications. In the alternative, I consider setting up a work area is a home modification required to allow the claimant to undertake his usual activities within his home. In my view it is no different to modifying a home, for example, by installing ramp access to a lounge or media room exclusively used for leisure activities that would otherwise require the use of steps to enter the room where the injured party is unable to use steps. The claimant does not claim the cost of a person to maintain his guitars for him but claims the costs of home modification to enable him to engage in his usual activities. For this reason, I also consider this item meets the definition of “treatment and care” on the basis it is a home modification.
I have no details as to the cost, noting this would appear to be a one off task/cost, to be able to assess whether the cost is reasonable. There is also a dispute between the parties as to whether such cost is reasonable and necessary in the circumstances or relates to injury resulting from the motor accident which needs to be the subject of a medical assessment before the insurer’s liability to pay the cost can be finally determined.

Going to cafes (and other hospitality places ) that the claimant has not attended post MVA; Going to Bunnings and other retail outlets

This part of the claim is effectively a claim for additional transport assistance that is, assistance with transport to cafes for social outings and retail outlets in addition to the transport assistance already provided for tasks such as grocery shopping.
The claimant says without a support worker he is unable to load his trolley or vehicle (or unload his vehicle) with purchases of “larger items such a timber for [his] workshop, large electronic items, and large items required for [his] new home from a mobility scooter”.
Given the claimant’s current stated restrictions it is unclear why he would be making, or have a regular need for, large purchases of timber for a workshop at the present time. Purchase of “large electronic items and large items required for “his new home (presumably white goods and/or furniture and/or furnishings) would seem to be one-off purchases and not a task that would require additional support worker hours on a weekly basis or even a fortnightly or monthly basis. Further, it is difficult to understand how anyone, including the claimant if he had not been injured, would be able to conveniently use a trolley to make such purchases. It would be usual for most people to arrange home delivery or if they have an adequately sized vehicle such as a utility or van, to arrange pick up from the vicinity of the loading dock (loaded by staff) when purchasing large items.
Online purchase and delivery or online “click and collect” are also everyday options that are presumably available to the claimant. Whilst the claimant says that even if store staff load his vehicle, he is unable to unload the items at home on his own this would presumably require minimal additional support worker time over and above the current five hours and is not likely to be required on a daily, or even a weekly or monthly basis. As noted, one would not expect the claimant to be purchasing large electronic items or large items required to furnish a new home on a regular basis. Instead, these would likely be one-off purchases.
In my view, a common part of assistance with everyday tasks is assisting passengers with mobility issues during transportation to various appointments and activities where, but for the accident, they would have been able to travel independently. However, in this case, I do not understand the claimant needs to be accompanied by a support worker during transportation (although if the claimant contends he requires such assistance it would be a matter for medical assessment). Rather, I understand the request for transportation in the form of additional support worker hours is to assist the claimant to load his vehicle with his musical equipment to take with him when he attends musical social jam sessions or to load and unload his trolley and/or vehicle with large/heavy items he purchases when shopping.
The question of whether a cost is reasonable is to be considered in the context of the cost of alternative options available to the claimant. The cost of a support worker being available on an ad hoc (or even regular) basis to load the claimant’s vehicle at one end of a journey and then remain available to potentially unload the vehicle at the other end would likely exceed the costs of other methods of transport assistance available to accommodate the claimant’s injuries/meet his needs.
The claimant acknowledges taxis are available to him. The amount of musical equipment the claimant has is unclear. However, it must be assumed it is equipment that can be easily lifted by one person on the basis the claimant contends but for the accident he would have done this himself. Typically, taxi drivers will assist to load, for example, luggage into a vehicle for a passenger. Presumably this option is open to the claimant that is, to arrange a taxi service and for the taxi driver to load his musical equipment into the taxi just as they would if it were luggage for a passenger going to the airport. It is noted a taxi is also able to take the claimant’s mobility scooter.
For shopping for large items, these are likely to be ad hoc, or one-off purchases and other alternative options such as online shopping and delivery or click and collect are likely available to the claimant and likely would be more cost effective than additional support worker hours.
I therefore conclude, regardless of whether it meets the definition of “treatment and care” that the claim for additional support worker hours in relation to café/social outings and attending retail outlets is not a reasonable cost of treatment and care when measured against the cost of alternatives available to the claimant.

Whilst I have determined some tasks under additional support worker hours are “treatment and care”, the dispute about whether any additional hours are reasonable and necessary is to be the subject of a medical assessment, before a determination on whether the costs are reasonable can be made. I do not anticipate there will be a dispute about the hourly rate for the services. Accordingly, whether the cost is reasonable is likely to resolve itself with the outcome of the medical assessment.

CONCLUSION

For the reasons set out above I conclude:
(a)    Quote 1 is a reasonable cost of treatment and care, however, whether that cost is reasonable and necessary in the circumstances or relates to injury resulting from the motor accident is to be the subject of an application for a medical assessment;
(b)    Quote 2 is not a reasonable cost of treatment and care because it relates to maintenance of property beyond the yard/fencing around the home. Further or in the alternative, it represents the cumulative effect of work the claimant would have done for the benefit of others. Further or in the alternative, it relates to/arises from maintenance of a second property over five years whilst the claimant was not living at the property;
(c)    car washing, garage cleaning and setting up a work area for guitar maintenance are services which fall within the definition of “treatment and care”. However, the number of hours, if any, that are reasonable and necessary is to be the subject of an application for a medical assessment;
(d)    prima facie, maintenance tasks within the claimant’s home fall within the definition of “treatment and care”. However, medical assessment is required to determine the hours, if any, that are reasonable and necessary in the circumstances or relate to injury resulting from the motor accident;
(e)    the cost of assistance with transport to cafes and other hospitality places for social outings by way of provision of additional support worker hours is not a reasonable cost of treatment and care in circumstances where alternative options at a more reasonable cost are available to the claimant, and
(f)    the cost of assistance with transport and shopping at Bunnings and other retail outlets or shopping centres to purse interests and hobbies is not a reasonable cost of treatment and care in circumstances where alternative options at a more reasonable cost are available to the claimant;
In relation to additional support worker hours for car washing, garage cleaning, home maintenance and setting up a work area for guitar maintenance, I consider it appropriate for the insurer to redetermine the question of whether the costs are reasonable following the outcome of a medical assessment. In redetermining the matter, the insurer is to apply the findings made in this determination regarding the extent to which the additional support worker services meet the definition of “treatment and care”.
Accordingly, the reviewable decision is set aside, and the following determination is made:
(a)    Quote 1 is a reasonable cost of treatment and care and, subject to the outcome of a medial assessment, is payable by the insurer;
(b)    Quote 2 is not a reasonable cost of treatment and care and therefore not payable by the insurer;
(c) car washing and garage cleaning are costs of treatment and care and subject to medical assessment as to the number of hours that are reasonable and necessary, if any, under s 3.24(2), is a cost payable by the insurer;
(d)    prima facie, maintenance tasks in the home is a cost of treatment and care but depending on the nature of the task some may fall outside the scope of treatment and care therefore no formal determination is made. Once medical assessment is determined, the insurer is to redetermine the extent to which home maintenance tasks are treatment and care and issue a new determination;
(e)    the cost of setting up a work area for guitar maintenance is a cost of treatment and care and subject to the outcome of a medical assessment, is a cost payable by the insurer;
(f)    the cost of assistance with transport to cafes and other hospitality places by way of additional support worker hours is not a reasonable cost of treatment and care;
(g)    the cost of assistance with transport and shopping at Bunnings and other retail outlets or shopping centres is not a reasonable cost of treatment and care, and
(h) the insurer is directed to redetermine the reasonable costs of treatment and care payable following the outcome of a medical assessment by applying the above determination regarding items determined in this merit review to be “treatment and care” within the meaning of the MAI Act and the insurer is to issue a new determination.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;

· Motor Accident Guidelines;
· Motor Accident Injuries Regulation 2017, and
· the PIC Act.

[2024] NSWPICMR 69

30 September 2024