Balmain v Insurance Australia Limited t/as NRMA
[2022] NSWPICMR 4
•21 January 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Balmain v Insurance Australia Limited t/as NRMA [2022] NSWPICMR 4 |
| CLAIMANT: | Colette Balmain |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MERIT REVIEWER: | Michael Sofoulis |
| DATE OF DECISION: | 21 January 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit Review; whether reasonable and necessary travel and accommodation expenses are payable under section 3.24(1)(b) of the Motor Accidents Injuries Act 2017 (the 2017 Act); whether treatment and care are reasonable and necessary or relates to the injury under section 3.24(2) of the 2017 Act; dispute as to whether treatment reasonable and necessary and whether related to injury sustained; Schedule 2 limits merit reviews to the cost of treatment and care; no jurisdiction to determine dispute; Held- necessary to make an application for a medical assessment; not a merit review matter; application dismissed as no jurisdiction. |
| DETERMINATIONS MADE: | 1. The dispute under sections 3.24(1)(b) and 3.24(2) is not a merit review matter under Schedule 2 of the Act. 2. The merit review application is dismissed due to lack of jurisdiction to determine the matter. The matter is dismissed in accordance with Personal Injury Commission Rule 114 and section 54(c) of the Personal Injury Commission Act 2020. |
Background
There is a dispute between Colette Balmain and the insurer about whether ongoing transport assistance provided to the claimant is reasonable and necessary for the purposes of sections 3.24(1)(b) and 3.24(2) of the Act.
The claimant sustained serious injuries in a motor vehicle accident on 2 July 2020.
At date of accident the claimant was aged 88, she is now 90 years of age. By all accounts the claimant was fit and very active before the accident occurred.
As part of the claimant’s rehabilitation, she was provided with ongoing transport assistance to attend appointments as well as ongoing transport assistance to attend activities to improve her mobility including: physiotherapy, walking and yoga.
On 31 March 2021 the insurer made a decision to change the transport arrangements.
In relation to transport to attend appointments the insurer decided the claimant could utilise taxis and attend two community related outings per week.
In relation to transport to facilitate walking and yoga activities the insurer decided to cease funding daily transport.
The claimant disputes this decision and seeks to have the provision of ongoing transport to improve mobility (via physiotherapy, walking and yoga) restored.
On 31 March 2021 the claimant requested an Internal Review of the insurer’s decision to cease payment of ongoing transport to allow activities that improve the claimant’s mobility.
The insurer conducted an Internal Review and issued a Certificate of Determination dated 15 April 2021 affirming the original decision.
The claimant disputes the Internal Review decision and lodged an Application for Merit Review with the Personal Injury Commission on 13 May 2021.
Submissions
The claimant submits that she sustained injuries to her back, both legs and knees, ribs, as well as a significant head injury, was very active before the accident and left her house 1-2 times daily for yoga and other social interaction. The claimant can no longer drive or walk along the steep hills around her residence and requests the insurer cover her travelling costs of "community outings" on a daily basis, but the insurer only wants to cover those costs twice per week.
The claimant seeks to have travelling costs of "community outings" on a daily basis covered by the insurer.
The insurer submits that yoga is not accident related treatment and any further attendance is not related to the subject accident. Therefore ongoing transport is not considered reasonable or necessary.
In relation to walking, the insurer submits that further transportation is not reasonable or necessary.
Reasons
Jurisdictional issues
The claimant’s solicitor lodged an Application with the Personal Injury Commission on 13 May 2021 seeking a merit review of the reviewable decision.
The dispute has been characterised by the claimant’s solicitor as a dispute about the cost of treatment and care under Schedule 2(1)(i) of the Act.
The insurer however, in its reply and submissions considers the dispute to be about whether the treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the subject accident for the purposes of section 3.24.
The insurer considers the dispute to be a Medical Assessment matter under Schedule 2(2)(b) of the Act.
Having considered all the documentation provided including the submissions provided by the parties I’m satisfied the dispute does not relate to the cost of treatment and care for the purposes of section 3.24(1)(a).
No submissions have been made by either party regarding the cost of the treatment in dispute and no reference was made to section 3.24(1)(a) which refers to the “reasonable cost of treatment and care”.
The insurer however has declined to support ongoing travel in order for the claimant to attend yoga or walking on the basis that it is not reasonable or necessary or relate to the injuries sustained in the subject accident.
The insurer has raised issues of causation as well as reasonableness in its internal review decision and in submissions provided in its reply to this application.
As a merit reviewer I can determine whether the cost of treatment and care provided is reasonable for the purposes of section 3.24(1)(a).
I lack the jurisdiction to determine a dispute under 3.24(1)(b) or 3.24(2), both of which require an assessment as to whether the treatment in dispute is “reasonable or necessary”.
Whether treatment is reasonable or necessary or relates to the injuries sustained in the subject accident is a medical assessment matter.
I’m satisfied that this dispute is a medical assessment matter to be assessed under Schedule 2(2)(b) of the Act.
Because I lack jurisdiction to conduct a merit review of this dispute the application is dismissed in accordance with Personal Injury Commission Rule 114 and section 54(c) of the Personal Injury Commission Act 2020.
Conclusion
The reviewable decision is about a dispute under sections 3.24(1)(b) and 3.24(2) of the Act which deal respectively with the issue of 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 and secondly whether treatment and care is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident.
My determination is as follows:
(a) the dispute under sections 3.24(1)(b) and 3.24(2) is not a merit review matter under Schedule 2 of the Act, and
(b) the merit review application is dismissed due to lack of jurisdiction to determine the matter. The matter is dismissed in accordance with Personal Injury Commission Rule 114 and section 54(c) of the Personal Injury Commission Act 2020.
Legislation and Guidelines
In making this decision, I have considered the following:
· The application, reply and supporting documentation
· Motor Accident Injuries Act2017
· Personal Injury Commission Rules 2021
· Personal Injury Commission Act 2020
Michael Sofoulis
Merit Reviewer
Personal Injury Commission
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