Bussenschutt v QBE
[2022] NSWPICMR 13
•24 February 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Bussenschutt v QBE [2022] NSWPICMR 13 |
| CLAIMANT: | Malcom Bussenschutt |
| INSURER: | QBE |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 24 February 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; dispute about payment of statutory benefits under section 3.24 and/or 3.26 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of treatment and care; jurisdiction; schedule 2, clause 1(j) of the MAI Act; whether services provided by the claimant to dependents before the accident; whether thresholds in section 3.26 of the MAI Act met; whether services are for others or for the claimant; Held – the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | The reviewable decision is about whether statutory benefits are payable under section 3.26 of the Motor Accident Injuries Act 2017 (the MAI Act) and the amount of statutory benefits so payable, and is therefore a merit review matter under Schedule 2(1)(j) of the MAI Act. 1. The reviewable decision is: affirmed. |
Issued under section 7.13(4) of the Motor Accident Injuries Act 2017
BACKGROUND
There is a dispute between Malcom Bussenschutt (the claimant) and the insurer about whether statutory benefits are payable under section 3.26 of Motor Accident Injuries Act 2017 (the MAI Act) and the amount of statutory benefits so payable.
On 4 February 2021 the claimant made a claim for payment of domestic services based on recommendations for paid commercial domestic services made by
Ms Warner, occupational therapist in a report dated 31 January 2021.On 22 February 2021 the insurer declined the claim for payment of domestic services.
The claimant requested an internal review of the 22 February 2021 decision.
On 8 March 2021 the insurer issued their internal review decision in which the decision to decline the claim for payment of domestic services was affirmed.
The claimant has applied for a merit review of the 8 March 2021 internal review decision.
SUBMISSIONS
The application for a merit review requests a merit review as to “whether the domestic assistance recommended by Ms Warner in her report dated 31 January 2021 is reasonable and necessary”.
In response, the insurer submitted the Personal Injury Commission (the Commission) does not have jurisdiction to determine a dispute of the type framed by the claimant because:
(a) the dispute framed is not a merit review matter within schedule 2(1) of the MAI Act, no issue having been raised about costs;
(b) further, the dispute framed is not a medical assessment matter as it is not caught by schedule 2(2)(b) of the MAI Act which confines itself to what has been provided, not what might in future be needed;
(c) in addition, section 3.25 of the MAI Act effectively provides that no statutory benefits are payable in connection with the provision of gratuitous attendant care services, and
(d) in summary, the section 3.25 prohibition and the fact the claimant’s application does not make a claim for payment or reimbursement for any assistance or care allegedly needed and provided to date as a consequence of the subject accident, means there is no scope to argue that any part of schedule 2 confers jurisdiction on the Commission to deal with the application.
The Commission wrote to the claimant requesting clarification of the nature of the merit review, including identification of the subclause under schedule 2(1) relied upon by the claimant to make a merit review application.
The claimant responded by stating he relies on schedule 2(1)(j) which states merit review matters include "whether statutory benefits are payable under section 3.26 (statutory benefits for loss of capacity to provide gratuitous domestic services), and the amount of statutory benefits so payable".
The claimant provided the following submissions in support of an application for a merit review under schedule 2(1)(j):
“The claim made by the claimant clearly articulated the cost of the care in the letter dated 4 February 2021 as follows: -4 hours per week for bulk preparation of meals that can be frozen for future reheating, a thorough vacuum and mop, cleaning of the bathroom, changing of bed linen; and spring-cleaning activities as they arise. -2 hours per week for mowing, heavy gardening and sweeping and cleaning of outdoor areas and yard maintenance activities; -Fortnightly washing and polishing of his vehicle. -Recommendations -12.1.1. Introduction of 4 hours weekly commercial domestic assistance @ $54.45 per hour. (Source: Australian Home Care Services ph: 1300 303 770). -12.1.2. Introduction of 2 hours weekly commercial mowing, gardening, yard and pool maintenance activities @ $50.00 per hour. (Source: Jim’s Mowing). -12.1.3. Introduction of fortnightly car washing/polishing at a professional car wash @ $35.00 per wash. (Source: Snap Car Wash).
The insurer is taking a very narrow approach to the wording contained within the legislation to submit that this is only in respect of what has been provided. If the dispute was in respect of a Neurosurgeon recommending a spinal fusion and this was disputed, this is the very clause that would be relied upon to refer the matter to the PIC for determination and there would be no issue. There is no difference here where there has been domestic assistance (care) recommended by an Occupational Therapist, this has been denied by the insurer and the claimant is seeking referral to the PIC to determine the dispute.”
The claimant is legally represented. The submissions of the claimant do not address the issue of whether there is a valid claim under section 3.26, which is now raised by the claimant. The claimant’s submissions only address the insurer’s position that in addition to there being no jurisdiction to conduct a merit review in relation to a dispute under section 3.24, there is no jurisdiction to conduct a medical assessment of the dispute for the reason set out in paragraph 8(b) above.
In the alternative to submitting no jurisdiction the insurer contends the evidence firmly establishes there is no accident related pathology causing impairment giving rise to a need for care and assistance of the type canvassed in Ms Warner’s report and that the limited restrictions outlined in Dr Velautham’s certificate dated 22 January 2021 confirm the claimant has capacity to undertake the usual activities of daily living. The insurer submits that for these reasons care and assistance of the type prescribed by
Ms Warner cannot be characterised as reasonable and necessary and related to the subject accident so that the claimant’s application must be dismissed.
REASONS
Jurisdiction
The merit review application clearly articulates the dispute as being whether domestic services recommended by Ms Warner are reasonable and necessary. This is consistent with the claim made to the insurer on 4 February 2021.
To the extent Ms Warner recommends gratuitous domestic services (past, present or future), pursuant to section 3.25 of the MAI Act no statutory benefits are payable for expenses incurred in connection with the provision of gratuitous attendant care services (the meaning of “attendant care services” in section 1.4 of the MAI Act includes home maintenance and domestic services). Accordingly, the claim can only be for paid (that is, commercial) home maintenance and domestic services. In this regard, Ms Warner recommends the provision of six hours per week of paid domestic services together with paid car washing and car cleaning services.
Payment of statutory benefits for treatment and care falls under section 3.24 of the MAI Act. Treatment and care includes attendant care services in the definition in section 1.4 of the MAI Act. Under section 1.4 “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 recommendations of Ms Warner fall into the category of home maintenance and domestic services and are therefore treatment and care under section 1.4. As noted, payment of statutory benefits for treatment and care is governed by section 3.24 of the MAI Act. In turn, whether any treatment and care provided to an injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 is a medical assessment matter pursuant to schedule 2(2)(b). The dispute does not fall under any of the categories of merit review matters under schedule 2(1).
Accordingly, I do not have jurisdiction to determine the dispute under section 3.24 as a merit review. I note the claimant has lodged an application for a medical assessment of the claim for domestic services, in the alternative. Whether there is jurisdiction to conduct a medical assessment in the circumstances of the claimant’s case is a question to be determined in the separate application for a medical assessment. Prima facie, there is jurisdiction to conduct a medical assessment in relation to disputes arising under section 3.24.
Whilst I am not conducting a medical assessment, I note the recommendations of
Ms Warner are significantly out of date, being made more than 12 months ago. In circumstances where it is understood to date the claimant has not paid for any domestic services questions as to whether the services are necessary and/or whether Ms Warner’s report is a reliable means of determining the claimant’s current needs in 2022 arise. These issues, together with any jurisdiction issue under schedule 2(2) of the MAI Act are matters for the Medical Assessor appointed in the claimant’s alternative application for a medical assessment.Upon the jurisdiction issue being raised in connection with the merit review application the claimant provided amended submissions in which the claimant pointed to schedule 2(1)(j) as providing jurisdiction to conduct a merit review of the dispute about the domestic services recommended by Ms Warner.
Schedule 2(1)(j) provides jurisdiction to conduct a merit review as to whether statutory benefits are payable under section 3.26 (Statutory benefits for loss of capacity to provide gratuitous domestic services), and the amount of statutory benefits so payable. Schedule 2(1)(j) only relates to statutory benefits under section 3.26. Section 3.26 relates to provision of domestic services to others (not the claimant) and is therefore entirely distinct from a claim under section 3.24.
The claimant’s submission attempts to put a square peg in a round hole so to speak in order to bring the matter within merit review jurisdiction. I am of the view this is not a claim under section 3.26. My reasons for this are set out further below. However, prima facie I have jurisdiction to conduct a merit review as to whether statutory benefits are payable under section 3.26, and the amount of statutory benefits so payable. Accordingly, I will proceed to deal with this merit review on the basis the claimant states the merit review application is made under schedule 2(1)(j). This necessarily means the claim is to be assessed under section 3.26, not section 3.24. Schedule 2(1)(j) is clear in its terms that it relates only to claims under section 3.26. Accordingly, there is no scope to consider matters relevant to claims under section 3.24 as part of a merit review under schedule 2(1)(j).
In summary:
(a) to the extent the claim falls under section 3.24 I conclude there is no jurisdiction to conduct a merit review, and
(b) I have jurisdiction to conduct a merit review to the extent the dispute falls under schedule 2(1)(j).
As schedule 2(1)(j) deals with disputes arising under section 3.26, which relates to statutory benefits of a different kind to those payable under section 3.24 the issue for determination is whether section 3.26 applies to the claim at hand.
The legislation
In so far as there is any claim for gratuitous services statutory benefits are not payable under section 3.26 if the domestic services provided after the motor accident are provided gratuitously. Accordingly, as with section 3.24 a claim under section 3.26 is limited to provision of domestic services on a paid, commercial basis.
Section 3.26 of the MAI Act concerns payment of statutory benefits in relation to the loss of capacity to provide gratuitous domestic services to others and relevantly states:
“(1) An injured person is entitled to statutory benefits under this Division for the reasonable expenses incurred after the motor accident in employing a person to provide domestic services to the claimant's dependants, but only if--
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of "dependants" in this section--the claimant provided the services to those dependants before the motor accident, and
(b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the claimant's injury, the claimant would have provided the services to the claimant's dependants for at least 6 hours per week and for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.
Statutory benefits are not so payable if the domestic services provided after the motor accident are provided gratuitously.
(2) If a dependant of the claimant received (or will receive) assisted care during a 6-month period for periods that were (or will be) short-term and occasional and for no more than 4 weeks in total during that 6-month period--
(a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least 6 hours, the week should be disregarded if the assisted care was (or will be) provided during that week, and
(b)in determining whether the claimant would have provided gratuitous domestic services to the dependant during a 6-month period, any periods during which the assisted care was (or will be) provided in that 6-month period should be disregarded.
(3) …” (emphasis added)
Does the claim fall under section 3.26?
A precondition of section 3.26 is that the domestic services are to be provided “to the claimant’s dependents”.
The claimant has two dependent children currently aged 7 and 8.
The recommendations of Ms Warner are for the provision of the following domestic services:
(a) meal preparation;
(b) heavy household cleaning and laundry tasks;
(c) mowing, gardening and yard maintenance, and
(d) car washing and cleaning.
Whilst the claimant’s dependents may benefit from provision of such domestic services to the claimant the primary beneficiary is the claimant and no clear line can be drawn between the primary benefit to the claimant and the secondary benefit to his children. In White v Benjamin [2015] NSWCA 75 (White) the Court of Appeal observed there will be many circumstances where no clear line can be drawn between services required by the injured plaintiff and those which benefit family members and said at [70]:
“It is not necessary to inquire whether a plaintiff who lives in a house with two bathrooms uses both or could reasonably confine herself to one. Where a service is reasonably required by the plaintiff, which is likely to cover the cleaning of the house in which she lives, the benefits to other members of the household may be disregarded”. (emphasis added)
It is clear from Ms Warner’s report that the recommended services are to be provided to the claimant, for the primary benefit of the claimant. I do not consider, for example, that mowing, gardening and yard maintenance or car washing and cleaning are services of a kind that are provided to a child aged 7 or 8. The provision of four hours for domestic services recommended by Ms Warner also includes cleaning the home for the claimant, cooking for the claimant and doing laundry for the claimant. Based on decisions such as White, any benefit to the children or other members of the household arising from the provision of these services to the claimant is to be disregarded. On this basis, the services cannot be characterised as provision of services to the children and therefore fall outside the scope of section 3.26 which applies only to the provision of services to others, not the claimant himself.
Accordingly, the claim for domestic services does not fall under section 3.26, as the precondition that the services are provided to dependants, not the claimant, is not met.
Whilst in theory, it might be possible to sever children’s meal preparation and laundry from meal preparation and laundry for the claimant, I am not satisfied on balance that the evidence establishes the claimant is unable to cook children’s meals, having regard to the fact that cooking for children is more basic than cooking for adults and generally involves lighter duties. I am also not satisfied on balance that the claimant is unable to attend to the children’s laundry. In any event, it appears single family meals are prepared and the claimant combines his laundry with the children’s. On this basis, tasks for the children would not be severable from tasks for the claimant in any quantifiable way for the purpose of section 3.26.
I also note the total recommendation of Ms Warner is four hours per week to cover meal preparation, laundry and internal housework. To the extent cooking for the children and children’s laundry is capable of being severed from cooking for the claimant, the claimant’s laundry and the internal housework the provision of services to the children would be much less than four hours per week. It is a precondition of section 3.26 that:
(a) there is a reasonable expectation that, but for the claimant's injury, the claimant would have provided the services to the claimant's dependants for at least six hours per week and for a period of at least six consecutive months, and
(b) there will be a need for the services to be provided for those hours per week (that is, at least six hours per week) and that consecutive period of time and that need is reasonable in all the circumstances.
Accordingly, even if services for the children could be severed from services provided to the claimant in any quantifiable way it is apparent that any claim for provision of domestic services to the children would not meet the threshold requirements in section 3.26 of at least six hours per week. The claim would therefore be excluded from section 3.26 on this alternative basis.
Lastly, and more fatally for the claim under section 3.26, it is a precondition of section 3.26 that “the claimant provided the services to those dependants before the motor accident”. It is apparent from the history taken by Ms Warner that the claimant did not provide the services to his children before the motor accident (nor did he provide them in the first two years after the accident from February 2018 to February 2020, whilst he continued to reside in the same home as his former partner). In this regard, Ms Warner records the claimant:
(a) would help with the internal domestic duties on the days he was not working. He would perform meal preparation, domestic and shopping duties on a regular basis;
(b) lived with his partner and young children in their current home until February 2020, and
(c) worked long hours on weekdays and his partner was a stay-at-home parent. As a result, she performed the bulk of the household duties, however the claimant would assist on his days off and weekends in order to give his partner a break.
It is apparent from the above that the claimant’s then partner was the primary provider of domestic services to the children before the accident, not the claimant.
This is reinforced by the following list of duties undertaken by the claimant for himself and the household pre-accident recorded by Ms Warner:
(a) preparing his own breakfast and lunch on a daily basis;
(b) cooking the evening meal three times per week;
(c) assisting with domestic duties on days off, evenings and weekends including general tidying, vacuuming and mopping, cleaning the bathroom and toilet and assisting with changing bed linen and heavy spring-cleaning activities (approximately three hours per week);
(d) sharing responsibility for performing the household shopping;
(e) washing and cleaning his vehicle weekly;
(f) external maintenance including cleaning windows and feeding and cleaning up after the pets, and
(g) mowing/edging the law and maintaining the garden and yard on a weekly basis.
I have already concluded that the above tasks are for the claimant’s benefit and the extent to which other members of the household also benefit is to be disregarded. The only item above that might be severable is cooking the evening meal three times per week. However, there is no suggestion in Ms Warner’s report that the claimant prepared separate meals for the children on these occasions. If they all shared in the same family meal, then this item also falls into the same category as the other tasks and cannot be characterised as the provision of services to others for the purpose of section 3.26.
In contrast to Ms Warner’s report, in his own statement dated 10 October 2019 the claimant states:
“[his partner] normally did the inside domestic chores around the house, and I did the outside chores and basically farming all day. I did not mind helping inside the home if I had time, and I would help with sweeping the floor, washing up, and keeping the yard clean. Georgia would normally do the grocery shopping and cooking and she did a lot around the farm as well and she was always helpful to have about.”
There are inconsistencies between the claimant’s statement and the history taken by Ms Warner. The report of Ms Warner appears to be an exaggerated version of the claimant’s account in his own statement of his contribution to domestic tasks before the accident. For example, Ms Warner contends the claimant routinely cooked the evening meal three times per week. However, the claimant states his partner Georgia “normally” did the cooking. There is nothing in the claimant’s statement to suggest the claimant routinely or regularly cooked meals before the accident. In fact, according to the statement the claimant did not do any cooking and only assisted with sweeping the floor and washing up in so far as internal domestic tasks are concerned.
As the claimant’s statement is his direct evidence versus the hearsay content of
Ms Warner’s report and is more contemporaneous (10 October 2019) than
Ms Warner’s report (31 January 2021) I consider the claimant’s statement more accurately and reliably represents the extent to which he provided domestic services to his dependent children pre-accident. The claimant’s statement dated 10 October 2019 is therefore to be preferred over the history in Ms Warner’s report.On the basis of the claimant’s statement, I am not satisfied that the claimant provided any of the services recommended by Ms Warner that are the subject of the claim (now purportedly made under section 3.26) to his dependents before the motor accident. It is clear from the claimant’s statement that due to his busy work schedule and the fact his partner was a stay-at-home parent he provided assistance on an ad hoc basis when he had time and that such assistance was limited to sweeping the floor and washing up from time to time. These are not tasks for the children but are for the household and predominantly for the claimant’s own benefit and for his partner.
Even if Ms Warner’s history were to be preferred it also establishes the claimant’s partner did “the bulk of the household duties” with the claimant only providing assistance from time to time to give his partner a break. The claimant did not provide assistance with laundry, according to Ms Warner’s report (and the claimant’s statement). The assistance he provided when he had time was for the benefit of the household rather than providing domestic services to the children. Given the arrangement between the claimant and his former partner that involved his former partner doing the “bulk of the household duties” any assistance provided by the claimant from time to time, even if it could be characterised as provision of services to the children, is not sufficiently quantifiable for the purpose of section 3.26 of the Act.
Accordingly, the precondition in section 3.26 that the claimant must have provided the services that are the subject of the claim to his dependents before the accident is not met, as the evidence establishes the claimant did not provide the services before the accident. The claimant is therefore not entitled to any statutory benefits under section 3.26.
Lastly, the report of Ms Warner is over 12 months old. The extent to which the claimant has custody of his children may have changed since the time of Ms Warner’s assessment. There is no suggestion the claimant has had any paid domestic services to date. Given gratuitous domestic services are not recoverable under the MAI Act regardless of whether the claim falls under section 3.24 or 3.26 and no services have been paid for to date I consider Ms Warner’s report is now redundant.
CONCLUSION
To the extent the application seeks a merit review on the question of whether treatment and care for the purpose of section 3.24 is reasonable and necessary, I do not have jurisdiction to conduct a merit review of such dispute. Accordingly, that part of the application is dismissed.
To the extent this is a merit review on the question of whether the claimant is entitled to statutory benefits for the provision of domestic services to others under section 3.26
I have concluded that the claimant is not entitled to statutory benefits under section 3.26 on the following basis, each being in the alternative:(a) the precondition that the claimant must have provided the services to his dependents before the accident is not met;
(b) alternatively, the domestic services the subject of the claim are to be provided to the claimant and cannot be characterised as provision of services to his children, and
(c) alternatively, to the extent it might be possible to sever services for the children from the services recommended by Ms Warner, the claim does not meet the threshold requirements in section 3.26 in relation to the number of hours.
Accordingly, in so far as the internal review decision of the insurer is to be notionally treated as a denial under section 3.26 for the purpose of this merit review, the internal review decision is affirmed.
The reviewable decision is:
(a)affirmed.
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
Katherine Ruschen
Merit Reviewer
Personal Injury Commission