Chen v QBE Insurance (Australia) Limited
[2022] NSWPICMR 55
•23 September 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Chen v QBE Insurance (Australia) Limited [2022] NSWPICMR 55 |
| ClaimanT: | Huaqian Chen |
| Insurer: | QBE Insurance (Australia) Limited |
| Merit Reviewer: | Katherine Ruschen |
| DATE OF DECISION: | 23 September 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Merit review; dispute about whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of section 3.24(1) of the Motor Accident Injuries Act 2017 (2017 Act); whether travel expenses are reasonable and necessary in order to obtain treatment; Held – section 3.24(1)(b) of the 2017 Act; the reviewable decision is affirmed. |
| Determinations made: | 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) of the MotorAccident Injuries Act2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(i) of the MAI Act. 1. The reviewable decision is affirmed. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Huaqian Chen, was involved in a motor accident on 11 February 2021.
The claimant made a claim for statutory benefits under the MAI Act, including the cost of travel to and from medical appointments for treatment in relation to the injury resulting from the motor accident.
The claimant claimed travel expenses under s 3.24(1)(b) of the MAI Act based on a per kilometre rate for travelling to and from her place of work to medical appointments.
The claimant made two separate claims for travel expenses. The first claim relates to appointments in or near the Sydney CBD area and is the subject of merit review application M10531317/22 lodged by the claimant. On 21 September 2022 I issued a merit review determination in M10531317/22. This determination is to be read in conjunction with my determination in M10531317/22. The reasons I gave in related matter M10531317/22 are also reasons for my determination in this matter.
This current merit review determination concerns further expenses the claimant says she incurred in connection with obtaining treatment in Burwood, St Ives, Parramatta, Gordon and Sydney CBD.
On 4 August 2022 the insurer determined that reasonable travel expenses the subject of this merit review total $125.79 based on a vehicle allowance of $0.66 per km.
The claimant requested an internal review of the insurer’s decision dated
4 August 2022.
On 15 August 2022 the insurer declined to conduct an internal review.
The claimant has requested a merit review of the insurer’s 4 August 2022 decision that her reasonable travel expenses are $125.79.
SUBMISSIONS
The claimant submits her travel expenses should be calculated based on the actual location (her place of work) from where she travelled to the medical appointments rather than from her home.
The insurer maintains that it has reimbursed reasonable travel expenses based on travel distance to and from the claimant’s workplace and says that in fact, it has reimbursed a higher amount than is reasonably required.
REASONS
The claimant’s travel expenses relate to medical appointments in Burwood, St Ives, Parramatta, Gordon and at 160 Castlereagh Street, Sydney.
I have not been provided with any evidence confirming:
(a) the time, date and location of the appointments in question;
(b) that the claimant did in fact attend the appointments in question;
(c) that the claimant did in fact attend work before and/or after the appointments, and
(d) that the appointments were for the purpose of treatment or care for the injury the subject of the motor accident and not for another reason.
I assume the insurer has satisfied itself of the above matters before making their decision of 4 August 2022.
The claimant resides in the inner city suburb of Haymarket and works as a school administration officer at Marsden High School in Meadowbank. The claimant’s place of work is approximately 15 km from her home (30 km return).
The claimant claims travel expenses based on the return journey to each appointment from her place of work, using her private vehicle and therefore claims a per kilometre travel allowance for the distance she says she travelled to the appointment from her workplace and return.
There does not appear to be any dispute that the appropriate per kilometre allowance is $0.66 per km. The dispute is about whether the distance said to have been travelled is reasonable and necessary.
The insurer refers to s 8.10 of the MAI Act in their decision of 4 August 2022. However, s 8.10 deals with costs and expenses incurred in connection with a claim. It is understood the expenses in issue are not expenses of a claim, but expenses incurred to obtain treatment. The expenses therefore fall for consideration under s 3.24(1)(b) of the MAI Act.
Section 3.24(1)(b) provides that an injured person is entitled to statutory benefits for “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” (emphasis added).
For travel expenses to be payable they must be both reasonable and necessary and must also be incurred for the purpose of obtaining treatment for the injury resulting from the accident.
As noted above, the reasons set out in this determination, including below, are to be read together with the reasons set out in the determination dated 21 September 2022 in related merit review matter M10531317/22, including in relation to what is “reasonable and necessary” for the purpose of s 3.24(1)(b) of the MAI Act.
Each travel expense is considered separately below, based on the date of travel.
13 July 2022
On 13 July 2022 the claimant saw a general practitioner (GP) in Burwood and says she travelled from her workplace in Meadowbank to Burwood and return. The claimant contends the return distance is 38 km. However, Google Maps indicates it is only
22 km return. The insurer says it is approximately 26 km return and has reimbursed on this basis.
For the reasons set out in my determination in related matter M10531317/22 I have difficulty accepting the claimant travelled back to work rather than home following this appointment. Further, it is apparent from the two matters that the claimant attends several GPs some of which are not within a reasonable distance of either her home or place of employment. Travel expenses incurred to attend different GPs or indeed, any GP, “out of area” is not reasonable. There is no explanation as to why the claimant could not consistently attend a GP located near her home or close to her workplace. As noted, the claimant resides in Haymarket and would therefore have a choice of any number of GPs located in the Sydney central business district (CBD) and surrounding area. GPs are also located in Meadowbank where the claimant works.
In any event, the insurer has reimbursed the claimant for the return distance from work to the appointment being 26 km at $0.66 per km. Given this represents the maximum travel distance from the claimant’s work to the appointment and return no further benefit is payable in respect of travel on 13 July 2022.
15 July 2022
On 15 July 2022 the claimant contends she travelled from her workplace to Parramatta and return for remedial massage and contends this is a total distance of 52 km. However, the distance from Marsden High School to Paramatta and return is approximately 16 km. For the reasons set out in my determination in M10531317/22 absent further evidence I have difficulty accepting the claimant attended this appointment from work and then returned to work. Further, there is no explanation as to why the claimant would need to attend Parramatta for remedial massage when she lives in Haymarket and works in Meadowbank.
The question of whether this is reasonable and necessary requires consideration as to whether it is reasonable and necessary to obtain treatment further afield when treatment of the same kind is readily available at a closer location to either the claimant’s home or workplace. As noted, the claimant resides in the inner city suburb of Haymarket and therefore would have a choice of a number of massage therapists located near her home. I do not consider it reasonable for a person who resides in Haymarket to travel as far as Parramatta for remedial massage when this kind of treatment is readily available within walking distance or a short drive from the claimant’s home.
In any event, the insurer has reimbursed the claimant based on 16 km return at $0.66 per km, which is the correct distance from the claimant’s workplace to Parramatta and return. I therefore consider this to be a satisfactory allowance under section 3.24.
The number of kilometres claimed by the claimant (52) suggests the claimant may have travelled to Parramatta and return from her home and not, as contended, from her workplace. If this is the case, I do not consider this to be reasonable for the reasons expressed above namely, the claimant resides in Haymarket and would therefore have access to a number of city based massage therapists within walking distance from her home. I do not consider it reasonable to travel 25 km each way for remedial massage in the circumstances and therefore do not consider travel from home to Parramatta to be reasonable.
19 July 2022
On 19 July 2022 the claimant attended a GP in St Ives for a 3.30 pm appointment. The claimant then travelled to Gordon for an X-ray taken at approximately 4.30 pm the same day. The distance from Marsden High School to St Ives is approximately 15.6 km and the distance from St Ives to Gordon is approximately 4.1 km.
The insurer paid travel expenses for travel from the claimant’s workplace to St Ives and from St Ives to Gordon for the X-ray. The insurer made no allowance for the claimant to travel from Gordon to her home as she would have travelled from Marsden High School to home had the accident not occurred and the distance of travel from Gordon to home is approximately the same distance as from Marsden High School to home.
The insurer’s reasons for refusing to pay travel from Gordon to home are consistent with my reasons and conclusions in my determination dated 21 September 2022 in M10531317/22. In short, if the claimant were compensated for her usual commute home it would represent overcompensation, which is inconsistent with the purpose of the MAI Act. I therefore agree the insurer is not required to pay for travel from Gordon to home on 19 July 2022.
It is unclear whether the claimant says she returned to Marsden High School or home after the X-ray at 4.30 pm. If the claimant claims expenses based on a return journey to Marsden High School, I consider this unreasonable and therefore not payable under
s 3.24. The reasons why I consider this unreasonable are set out in my determination in M10531317/22. In short, I consider it unlikely that the claimant would have returned to Marsden High School for any further work that day given she would have arrived back at work after hours.
Some comment should be made about the fact the claimant claims a total of 92 km to attend a GP in St Ives and then Gordon for X-ray on the same day on 19 July 2022 in circumstances where the GP appointment was at 3.30 pm and the X-ray taken one hour later at 4.30 pm. It is unlikely that in this circumstance, the claimant returned to either work or her home in between the GP appointment and the X-ray.
The claim (47 km return to St Ives and 45 km return to Gordon) is consistent with return distances from the claimant’s home to St Ives (approximately 48 km) and from the claimant’s home to Gordon (approximately 44 km).
Firstly, if the claimant travelled from home to a GP in St Ives and then for X-ray in Gordon, I consider the whole of the travel expense to be unreasonable and unnecessary for the reasons set out above namely, it is not reasonable or necessary to travel to a GP out of area when GPs are readily available in the CBD area. Attending an X-ray facility out of area is also not reasonable or necessary. There are a number of X-ray facilities located near the claimant’s home. The requirement in s 3.24 that travel expenses be reasonable and necessary requires it to be necessary for the claimant to travel further afield for treatment because, for example, the treatment is not available in her local area. It cannot be said that GPs and X-ray facilities are not available locally to the claimant, who lives in the inner city.
Secondly, the claim of 92 km is described by the claimant as a claim for two return trips from home on the same date despite the X-ray being carried out within approximately one hour of the commencement of her GP appointment. Allowing say 15 minutes for the claimant to complete the GP consultation, 15 minutes to return to her car and drive to Gordon and 5 to 10 minutes to park her vehicle in Gordon and enter the X-ray facility it would be by now 4.05 to 4.10 pm. The claimant would have then completed a form and waited her turn to be called in for X-ray sometime before 4.30 pm. It would not have been physically possible for the claimant to return home in between the GP visit at 3.30 pm and the X-ray being taken at 4.30 pm. Google Maps indicates that it would have taken the claimant at least 35 minutes to drive from St Ives to home and another 35 minutes to drive from home to Gordon. This is a total of more than one hour. Even if the GP appointment concluded at 3.30 pm rather than commenced at this time, the claimant would not have been able to drive home from St Ives before travelling to Gordon in time to be in the X-ray room by 4.30 pm.
As it is implausible that the claimant travelled home (or to work) between the appointments the veracity of the claimant’s contention she travelled 92 km is in question. Section 3.24 requires that the expense has in fact been “incurred”. It does not provide for reimbursement for theoretical travel based on what could or might have been done. If the journey was not in fact completed the travel expense has not been incurred. If the expense is not incurred, it is not payable under s 3.24.
The claimant completed a claim form on 20 July 2022 which included her declaration that all information is true and correct. The claimant’s obligation to provide true and correct information is a continuing obligation in connection with her claim for statutory benefits. As outlined above, it is not plausible that the claimant made two return trips totalling 92 km, as she contends, on 19 July 2022 for a GP attendance and X-ray taken within one hour of commencement of the GP appointment. The only logical conclusion is that the claim is either an exaggeration or a fabrication because the claimant could not have completed this travel in the time available between the GP consult and the
X-ray.
The total distance from work to the GP in St Ives and then from St Ives to Gordon is 19.7 km which equates to $13 based on $0.66 per km (as set out above, I have not allowed for travel from Gordon to home or return to the workplace). For reasons that are not clear the insurer has reimbursed the claimant $42.50. Accordingly, given the correct entitlement is $13 the claimant has been generously compensated for travel on 19 July 2022 and no further allowance is made.
20 and 26 July 2022
On 20 and 26 July 2022 the claimant attended a GP in St Ives. The distance from Marsden High School to St Ives is 15.6 km or 31.2 km return. It is understood the insurer reimbursed $20.59 based on 31.2 km at $0.66 per km.
The claimant claims this expense based on alleged return travel totalling 47 km. This is consistent with the return distance from the claimant’s home to St Ives rather than return from her workplace to St Ives. The claimant contends in her application for this merit review that she travelled from her workplace to each of the appointments in question and return. If that is the case, then the claim of 47 km is exaggerated.
Alternatively, if the claimant travelled to these appointments from home and return rather than from work, then I consider the whole of the expense to be unreasonable and unnecessary. As noted above, I do not consider it reasonable or necessary for the claimant to attend a GP in St Ives, almost 25 km from her home, in circumstances where she has seen other GPs closer to home. Regardless of whether the claimant has seen other GPs more reasonably located, there can be no doubt there are many GPs located locally to the claimant’s home, including within walking distance given her inner city home location. As such, it is not reasonable or necessary for the claimant to travel almost 25 km each way to see a GP when she could have easily (and reasonably) attended a local GP.
As I do not consider it reasonable or necessary to attend a GP in St Ives from Haymarket in the circumstances, any expense to attend from home is not payable under s 3.24 as the requirement that the expense be reasonable and necessary is not met.
In relation to calculating the expense over the shorter distance from the claimant’s workplace, for reasons set out above I consider the veracity of the whole of the travel expense claim to be in issue. However, as the insurer has allowed for travel from Marsden High School to St Ives and return on both 20 and 26 July 2022, I will allow same.
1 August 2022
On 1 August 2022 the claimant attended a physiotherapist in the Sydney CBD at 160 Castlereagh Street, Sydney. Google maps shows this is 750 m by foot from the claimant’s home. It is 15 km by car from the claimant’s workplace, which is about the same distance from the claimant’s workplace to her home.
The appointment was at 4.30 pm. Accordingly, it is likely the claimant returned home from Marsden High School and then walked to the appointment. There is no evidence to indicate the claimant drove to the appointment such as a parking receipt. Noting the time, date and city location of the appointment one would expect there to be parking fees, if the claimant drove herself to this appointment.
The claimant contends she completed a return trip of 44 km (22 km each way). Given the appointment was only 750 m from the claimant’s home this can only mean that the claimant contends she drove back to work after the 4.30 pm appointment despite the fact she would have arrived back at work after hours. Even if the appointment was a short, 15 minute appointment ending at 4.45 pm the driving time from 160 Castlereagh Street to Marsden High School is at least 30 minutes (likely longer as the claimant would have travelled in peak hour afternoon/evening traffic). Accordingly, the claimant would not have made it back to work before 5.15 pm at the earliest, which is after hours. For the reasons set out in my determination in M10531317/22 I am not satisfied on balance that this was the case.
Further, even if the claimant did travel from work and then returned to work the return distance from Marsden High School to 160 Castlereagh Street, Sydney is only 30 km, not 44 km as claimed. The claim appears to be exaggerated, which also puts the veracity of the claim in issue.
In any event, for the reasons set out in my determination in related matter M10531317/22, I do not consider any expenses payable because any travel from work to the appointment scheduled towards the end of the working day would have been part of the claimant’s usual commute home from work. She therefore would have incurred the expense in any event, even if the motor accident had not occurred.
The insurer has reimbursed $1.85, which I consider to be more than reasonable in the circumstances outlined above.
CONCLUSION
For the reasons set out above I consider the insurer’s decision to reimburse $125.79 for the subject travel expenses to be more than reasonable in the circumstances. To the extent the claimant contends she incurred expenses over and above this sum I conclude any additional amount is not payable because:
(a) the veracity of the claim is in issue such that I am not satisfied on balance that the claimant did in fact incur the expenses she alleges she incurred, and/or
(b) even if the claimant did incur additional expenses above the sum of $125.79, I am not satisfied on balance any additional expense is reasonable and necessary and therefore it is not payable pursuant to section 3.24(1)(b).
Accordingly, the reviewable decision is affirmed.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· the application, reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation.
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