Council of the Law Society of the Australian Capital Territory v LP202106; Council of the Law Society of the Australian Capital Territory v LP202107 (Occupational Discipline) - [2025] ACAT 68

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

AAI LIMITED T/AS AAMI v LEWIS; LEWIS v AAI LIMITED T/AS AAMI (Appeal) [2025] ACAT 68

AA 4 of 2025
AA 17 of 2025

Catchwords: APPEAL – Motor Accident Injuries – whether original tribunal erred in not taking into account payments under National Disability Insurance Scheme (NDIS) as relevant to determining whether proposed treatment and care was reasonable and necessary in the circumstances – whether rational basis for internal review decision – whether original tribunal erred in assessing approval of attendant care services – whether breach of procedural fairness in original applicant not providing access to information on NDIS funding – whether approval of attendant care services limited to 6 months
Legislation cited: Health Practitioner Regulation National Law (ACT)
Human Rights Act 2004, ss 12, 30
Legislation Act 2001
Lifetime Care and Support (Catastrophic Injuries) Act 2014
Motor Accident Injuries Act 2019 ss 6, 33, 38, 50, 51, 54, 55, 57, 58, 59, 65, 66, 110, 111, 112, 113, 114, 115, 118, 120, 121, 122, 123, 124A, 125, 126, 127, 129, 179, 187, 191, 192, 193, 197, 487, Sch 1, Part 1.1, items 7, 22, Part 1.2, item 27
National Disability Insurance Scheme Act 2013 (Cth) Ch 5
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Workers Compensation Act 1951 ss 73, 79

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 70
Motor Accident Injuries (Treatment and Care) Guidelines 2021, cl 3.2.1, 3.3, 4.4.2, 6.4.1
Motor Accident Injuries (Treatment and Care) Guidelines 2023, cl 3.2.1, 4.4.2, 6.4.1
Motor Accident Injuries (Treatment and Care) Guidelines 2025, cl 6.4.1.
Motor Accident Injuries (WPI Assessment) Guidelines 2019
National Disability Insurance Scheme (Supports for Participants—Accounting for Compensation) Rules 2013 (Cth), rules 3.1(c) and 3.4
Motor Accident Injuries Bill 2019

Cases cited:Ahmad v Insurance Australia Ltd t/as NRMA [2015] ACAT 11
Council of the Law Society of the ACT v LP 2021 [2021] ACAT 16
Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116
Ogilvie v Jemena Networks (ACT) Pty Ltd & Anor [2023] ACAT 20
House v King [1936] HCA 40
Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA [2022] ACAT 24
New South Wales v Burton [2006] NSWCA 12
Norbis v Norbis [1986] HCA 17
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Wilson v Peisley (1975) 7 ALR 571

Appeal Tribunal: Acting Presidential Member D Stewart
Senior Member R Orr KC

Date of Orders:  26 September 2025
Date of Reasons for Decision:      26 September 2025
Date of Publication:  7 October 2025

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 4/2025

BETWEEN:

AAI LIMITED ACN 005 297 807 TRADING AS AAMI
Appellant

AND:

MADELINE DAWN LEWIS
Respondent

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 17/2025

BETWEEN:

MADELINE DAWN LEWIS
Appellant

AND:

AAI LIMITED ACN 005 297 807 TRADING AS AAMI
Respondent

APPEAL TRIBUNAL: Acting Presidential Member D Stewart
Senior Member R Orr KC

DATE:26 September 2025

ORDER

The Tribunal orders that:

The appeals are upheld.
The orders of the original tribunal made on 24 December 2024 are set aside and replaced by the following orders:
(a)The original respondent’s decision of 8 September 2023 approving the assistance of a support worker for four hours per week is set aside.
(b)The matter is remitted for reconsideration by the original respondent in accordance with this decision.
………………………………..

Acting Presidential Member D Stewart
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

This matter involves two appeals from a decision of the tribunal on 24 December 2024 (original tribunal) relating to approval of treatment and care expenses under the Motor Accident Injuries Act 2019 (MAI Act). The decision under appeal set aside a decision of AAI Limited trading as AAMI (original respondent or insurer) in relation to Madeline Lewis (original applicant) and substituted approval for twenty-three and a half hours of attendant care services per week. Both appeals contend that the original tribunal was in error. In the first appeal, the original respondent seeks to have the decision of the original tribunal set aside and the decision under review reinstated. In the second appeal, the original applicant seeks to have only part of the orders of the original tribunal set aside and substituted with an order for increased payments in her favour. For the reasons that follow, we agree with the view of the original tribunal that the original decision was in error, but for different reasons. We also agree that the decision of the original tribunal was in error, but for different reasons than those put forward by either appellant. In our view, it is appropriate for the decision under review to be remitted to the insurer for reconsideration.
In the reasons that follow, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the presently constituted tribunal. When referring to the first instance decision, the Tribunal uses the expression ‘original proceedings’, ‘original tribunal’ or ‘Presidential Member’. For ease of reference, references to the respondent in these reasons includes actions taken by the respondent's employees and representatives in relation to this matter. References to sections of legislation are from the MAI Act unless otherwise indicated.

Background and summary of this decision

The original applicant was injured in a motor vehicle accident on 23 January 2021. The original respondent accepted liability under the MAI Act, and approved two hours of domestic services and four hours of support worker assistance in addition to the original applicant’s recovery plan (original decision). That approval was then affirmed on internal review (internal review decision). The original applicant then sought review of the internal review decision in the tribunal.
In summary, under the MAI Act, the original applicant is entitled to be paid by her insurer for expenses incurred by her in providing for her treatment and care that was reasonable and necessary and related to a personal injury sustained in the motor accident.[1] The concept of ‘reasonable and necessary’ requires consideration of whether the treatment and care is directly related to the person’s injury, and the MAI guidelines.[2] The MAI guidelines state that treatment and care will be directly related to a person’s injury if a service relates to an injury caused by the motor accident including the exacerbation of a pre-existing injury.[3]
[1] MAI Act s 113
[2] MAI Act s 129
[3] See Motor Accident Injuries (Treatment and Care) Guidelines 2021 (MAI guidelines) cl 6.4.1
The main issue raised in the application for review and these appeals is the interaction between the payments under the Commonwealth National Disability Insurance Scheme (NDIS) the original applicant was eligible to receive prior to the motor vehicle accident in question, and her eligibility for treatment and care benefits for various forms of attendant care services under the MAI Act. The internal review decision was characterised by the original tribunal as attempting to discount the treatment and care provided for by the original applicant’s NDIS payments prior to the applicant’s motor accident from what might be considered reasonable treatment and care after the accident for the purposes of assessing liability of the insurer under the MAI Act. The original tribunal considered the NDIS payments are not relevant to that assessment. That the original tribunal erred in that conclusion was the first ground put forward by the original respondent in the first appeal.
We disagree with the original tribunal: NDIS payments assessed before the motor accident can be relevant in determining if there was a pre-existing injury or condition, and what treatment and care was thought appropriate for that pre-existing injury or condition.
But the decision-maker under the MAI Act needs to determine what treatment and care is necessary after the motor accident for any exacerbation and any new injury caused by the motor accident. We do not think that any exacerbation is sufficient for all treatment and care of the injury to be reasonable and necessary for the purposes of the MAI Act, as found by the original tribunal. Also we do not think that if treatment and care was received under the NDIS, then such treatment and care for those conditions would not be reasonable and necessary under the MAI Act, in particular for an exacerbation of the pre-existing condition and any new injury (as seems to have been found by the original respondent).
Because of the view we have taken of the correct approach to the assessment of treatment and care expenses under the MAI Act, we have not accepted the second of the original respondent’s grounds of appeal (relating to the correctness of the internal review decision’s reliance on the recommendations of an occupational therapist’s report) and the third of the original respondent’s grounds of appeal (relating to the correctness of the original tribunal’s assessment of the appropriate level of treatment and care expenses).
We have also not accepted the original respondent’s fourth ground of appeal that there was a breach of procedural fairness due to the original applicant’s failure to provide details of her NDIS funding. In our view, there is no obligation under the MAI Act to require the original applicant to provide details of her NDIS funding to the original respondent, and no adverse inference that can be drawn from her failure to do so.
Finally, we have also rejected the original respondent’s fifth ground of appeal that limited the orders made by the original tribunal for the payment of 23.5 hours a week of attendant care services to a 6-month period. In our view, the original tribunal’s order, when properly understood in the context of the capacity of the original respondent to review and amend the original applicant’s recovery plan, is ongoing.
In the second appeal being considered in these reasons, the original applicant raised a number of grounds relating to the conduct of the original respondent which were not the subject of the original decision and not pursued by the original applicant at the appeal hearing.[4] At an interlocutory hearing, the original applicant also sought to raise issues relating to the compliance with the orders of the original tribunal. The original respondent denies that they have failed to comply with the orders of the original tribunal and, to the extent these issues involve evidence that was not before us and does not go to errors in the original decision they are not addressed further in these reasons.
[4] Transcript of proceedings, dated 18 June 2025 at pages 103-104
The main ground of the original applicant’s appeal relates to the sufficiency of the 23.5 hours of attendant care services approved by the original tribunal in substitution of the original decision under review. In our view it is not appropriate for this Tribunal to attempt to assess what level of attendant care services should be approved. Given our findings in relation to the errors identified in the original tribunal’s decision, we think the appropriate course is to set aside the original tribunal decision, and make orders setting aside the review decision and remitting the matter for reconsideration by the insurer.
On the basis of this decision, what is required in this reconsideration, and generally in relevant decisions about treatment and care benefits, is a determination of what treatment and care is reasonable and necessary for any exacerbation and any new injury caused by the accident. Whether treatment and care is reasonable and necessary relevantly includes consideration of the extent to which existing medical conditions, including their symptoms and effects on a person’s functioning, have been exacerbated by the motor accident, and what alterations, if any, to the treatment of care being provided prior to the motor accident are required due to the exacerbation. It also requires consideration of whether treatment and care which was previously provided for pre-existing medical conditions may continue to be suitable, with or without modification, as treatment and care of any additional injuries suffered in the motor accident. The task of the decision-maker is to consider whether treatment and care may still be reasonable and necessary in those circumstances, considering the contribution of the pre-existing conditions to the need post-accident for particular treatment and care. The extent to which the effect of the motor accident can be distinguished from the on-going effects of pre-existing conditions may also be relevant.
The original respondent needs to determine and pay for reasonable treatment and care. This amount should not be reduced in light of any amounts paid by the NDIS or due to inferences or assumptions based on the lack of information about those amounts. We recognise that determination of this may be difficult, but in our view this is the requirement under the MAI Act.

Nature of the appeal

To succeed in this appeal, the original respondent must show “an error of fact or law in the decision under appeal and that the error affected the result”.[5] The original tribunal’s exercise of discretionary powers is generally presumed to be correct unless shown to materially rely on a fact or application of legal principle shown to be in error or was otherwise wrong. Only when satisfied that there was an error may the appeal tribunal exercise its discretion in substitution for the original tribunal.[6]

Statutory background

[5] Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116 at [6]
[6] Ogilvie v Jemena Networks (ACT) Pty Ltd & Anor [2023] ACAT 20 at [28], citing House v King [[1936] HCA 40]; Norbis v Norbis [1986] HCA 17; Council of the Law Society of the ACT v LP 2021 [2021] ACAT 16 at [62] - [66]

This appeal concerns what is referred to as treatment and care benefits which, along with other benefits such as income replacement and quality of life benefits, are a type of defined benefit under the MAI Act (see section 33). Under section 38, defined benefits are payable in relation to a personal injury sustained by a person as a result of a motor vehicle accident in the ACT.
An entitlement to defined benefits is limited by workers compensation claims (section 50).[7] There is also provision for payments under the Lifetime Care and Support (Catastrophic Injuries) Act 2014 (section 118). Entitlement to treatment and care benefits is generally limited to 5 years after the motor accident (section 51(2)(e)).
[7] ‘Workers compensation scheme’ is defined to mean a workers compensation scheme under the Workers Compensation Act 1951, the Safety, Rehabilitation and Compensation Act 1988 (Cwlth), or a statutory workers compensation scheme of a place outside the ACT. See also s 73 and requirement to notify the insurer if a claim for compensation under a workers compensation scheme is made; s 79 and allowance for pre-injury capacity to work including payments under the Workers Compensation Act 1951 (ACT) or corresponding State or Territory law.
Section 54 provides for the injured person to consent to their personal health information being disclosed by their treating health service provider, health practitioners who conduct an assessment of their need for treatment and care, or to an authorised independent medical examiner.
A person injured in a motor accident may make an application for defined benefits to the relevant insurer (section 55). The form and contents of the application are provided for in MAI guidelines. The application must be accompanied by an authority to disclose personal health information (section 57). Processing of an application for defined benefits or payment of a defined benefit can be suspended while the injured person provides, in writing, any information disclosure consents that are reasonably required by the insurer to process, assess or otherwise manage the injured person’s entitlement to defined benefits. Information disclosure consents are in turn defined in section 57(5) and this term does not include funding providers such as the NDIS.
An applicant for a defined benefit must generally be made within 13 weeks from the accident (sections 58-59). There is provision for the payment of allowable expenses incurred during the initial period between the accident and the insurer approving the application for defined benefits.
Under section 65, an insurer must decide whether to accept or reject liability for defined benefits. If the relevant insurer accepts liability for defined benefits, the insurer must pay the applicant the defined benefits to which the applicant is entitled (section 66). The MAI guidelines may make provision in relation to the payment of defined benefits. It is not contested that the insurer has accepted liability for defined benefits in this case. But it is whether the original applicant is entitled to various treatment and care expenses under section 66 which is the principal issue in this case.
The entitlement and payment of treatment and care expenses is set out in Part 2.5 of the MAI Act. Treatment and care of a person injured in a motor accident is defined in section 110 to mean specified forms of treatment or services including attendant care services and rehabilitation. “Attendant care services” is in turn defined for the purposes of that section to mean “services that aim to give the person assistance with everyday tasks”. Examples of domestic services, home maintenance, nursing and personal assistance are provided.
Section 112 states:
(1) A person injured in a motor accident is entitled to treatment and care benefits for the following:
(a)treatment and care expenses;
(b)domestic services expenses;
(c)travel expenses.
Treatment and care expenses is relevantly defined in section 113:
treatment and care expenses, for a person injured in a motor accident—
(a)means expenses incurred by the injured person in providing for the injured person’s treatment and care; but
(b)does not include expenses incurred for treatment and care—
(i)that was not reasonable and necessary; or
Note Section 120 deals with deciding whether treatment and care is reasonable and necessary.
(ii)that did not relate to a personal injury sustained in the motor accident; or
(iii)for which the injured person has not paid and is not liable to pay.
Example—subpar (iii)
nursing care or domestic services provided by a domestic partner or parent on a gratuitous basis
Note that section 114 defines domestic services expenses where the injured person provided domestic services to dependants before the motor vehicle accident. Travel expenses are defined in section115 as “reasonable and necessary travel and accommodation expenses incurred by the injured person and a parent or other carer accompanying the injured person in relation to travel undertaken to undergo treatment and care” Section 120 sets out what must be considered by the relevant insurer in deciding whether treatment and case for an injured person is reasonable and necessary. It provides:
120 Deciding whether treatment and care is reasonable and necessary
In deciding whether treatment and care for an injured person is reasonable and necessary, the relevant insurer for the motor accident must consider the following:
whether the treatment and care is reasonable and necessary in the circumstances;
whether the treatment and care—
is directly related to the person’s injury; and
(i)is appropriate for the injury; and
(ii)will benefit the person;
the appropriateness of a provider of the treatment and care;
whether the treatment and care is cost effective;
the MAI guidelines.

Section 121 of the MAI Act provides for an insurer to require an injured person to attend a health practitioner for a medical or other examination to assess the injured person’s treatment and care needs. A health practitioner is in turn defined in the Legislation Act 2001 as:
health practitioner means a person registered under the Health Practitioner Regulation National Law (ACT) to practise a health profession (other than as a student)
Under the Health Practitioner Regulation National Law (ACT), health profession is defined to mean various professions, including medical, occupational therapy and psychology.
Section 121 continues:
(2)     The injured person must comply with any reasonable request made by the relevant insurer in relation to the assessment.
(3)     If the injured person fails, without reasonable excuse, to comply with the relevant insurer’s request, the relevant insurer may suspend either or both of the following until the person complies with the request:
(c)the person’s treatment and care benefits;
(d)the person’s income replacement benefit payments.
…
(6)     The MAI guidelines may make provision in relation to the conduct of assessments under this section.
Division 2.5.4 then makes provision for recovery plans which provide for the management and coordination of the injured person’s treatment and care. Section 123 provides for the process of consulting with the injured person and their doctor on the recovery plan. Importantly, the relevant insurer must engage in the process of developing a recovery plan where (s 123(1)):
(a) the relevant insurer for a motor accident is satisfied a person injured in the motor accident is entitled to treatment and care benefits; and
(b) because of a personal injury the injured person sustained as a result of the motor accident, the injured person is unable to undertake the duties and activities the injured person participated in before the motor accident.
Having a recovery plan in place has benefits for both the insurer and the injured person (and their treatment and care providers). The recovery plan sets out the treatment and care approved by the relevant insurer as reasonable and necessary treatment and care for the injured person. Benefits or payment can be suspended if the injured person fails, without reasonable excuse, to undergo the treatment and care (section 124A). The MAI Act also requires an injured person to apply to the insurer for approval to undergo treatment and care that is not mentioned in the recovery plan, and the “insurer is not liable for treatment and care expenses incurred in relation to treatment and care the injured person undergoes without the relevant insurer’s approval” (section 126(1)(b)). Under section 126(2):
The relevant insurer may approve treatment and care that is not mentioned in the recovery plan if the relevant insurer is satisfied on reasonable grounds that the treatment and care—
(a) is reasonable and necessary in the circumstances; and
(b) will assist with the injured person’s recovery or management of the person’s injury.
Section 127 of the MAI Act requires an insurer review the recovery plan at least every 13 weeks or if there is a material change in the injured person’s condition, circumstances or treatment outcomes. The injured person and their doctor must be given a reasonable opportunity to consider any proposed amendments to the recovery plan, and recommendations by the injured person’s doctor for treatment and care that is reasonable and necessary may be included in the plan.
Section 129 of the MAI Act imposes an obligation on the relevant insurer to pay treatment and care expenses of an injured person. That section also provides for the MAI guidelines to make provision in relation to verifying the expenses were incurred, the treatment and care was given, and ‘the injury for which the treatment and care was given resulted from the motor accident’.
Section 487 provides for the making of MAI guidelines. In relation to deciding whether treatment and care is reasonable and necessary under s 120 of the Act, the original tribunal considered the relevant MAI guidelines to be the Motor Accident Injuries (Treatment and Care) Guidelines 2023 (Treatment and Care Guidelines). We note that at the time of the internal review decision, the Motor Accident Injuries (Treatment and Care) Guidelines 2021 were in force. However, given the relevant provisions are in the same terms we do not consider the use of the 2023 guidelines to constitute a material legal error.
In relation to whether treatment and care is directly related to a person’s injuries for the purpose of section 120(b)(i), the Treatment and Care Guidelines provide:
6.4.1 Directly related to a person’s injuries
Treatment and care will be directly related to a person’s injury if a service relates to an injury caused by the motor accident including the exacerbation of a pre-existing injury. An insurer may consider the time elapsed since the motor accident, and any subsequent injuries or comorbidities, in determining whether treatment and care is directly related to a person’s injury.
We also note that, since the hearing in this appeal, the Motor Accident Injuries (Treatment and Care) Guidelines 2025 have commenced. Provision 6.4.1 now provides:
6.4.1        Directly related to a person’s injuries
Treatment and care will be directly related to an injured person’s injury if a service relates to an injury caused by the motor accident including the exacerbation of a pre-existing injury. In determining whether treatment and care is directly related to person’s injury an insurer may consider:
·        the time elapsed since the motor accident,
·        the extent an injury relates to the exacerbation of a pre-existing injury, and
·        any subsequent injuries or comorbidities.
If it is unclear whether treatment and care being sought is directly related to the person’s injuries from the motor accident, an insurer is to seek information about a person’s medical history or supports including any treatment and care being provided by another scheme, for pre-existing injuries, subsequent injuries or comorbidities. If the requested information, or a consent to obtain the information from another scheme is not provided in a timely manner, being no later than 10 business days from the request, an insurer may consider the requested treatment or care is not directly related to a person’s motor accident injury and refuse the request.
Given the current guidelines were not in operation at the time of the internal review decision or original tribunal decision, it is not relevant to the consideration of errors of law or fact by the original tribunal. We also consider that they would not be relevant to reconsideration by the insurer of the decision under review. We note that, given our comments below relating to the availability of information relating to the appellant’s NDIS payments that a question might arise as to the validity of the guidelines in their current form. However, as the current guidelines were not the subject of submissions before us, we make no comment on the extent to which they would properly affect a decision for the approval of treatment and care expenses incurred after the commencement of the current guidelines.

Jurisdictional basis for the original tribunal’s decision

An applicant for defined benefits can apply to have an “internally reviewable decision” reviewed as provided for in the MAI Guidelines (section 187 MAI Act). Part 1.1 of Schedule 1 sets out the list of internally reviewable decisions, including:
(a)A decision under section 66(1) to not pay treatment and care expenses incurred for stated treatment and care because the treatment and care was not reasonable and necessary or did not relate to personal injury sustained in motor accident (item 7); or
(b)A refusal to approve treatment and care not mentioned in injured person’s recovery plan because treatment and care not reasonable and necessary in the circumstances and will not assist with injured person’s recovery or management of person’s injury (item 22).
An internal reviewer can affirm or amend the decision, or set it aside and make a substitute decision (s 191). They must give the applicant written reasons for the decision. Under s 179 of the Legislation Act:
(2) The document giving the reasons must also set out the findings on material questions of fact and refer to the evidence or other material on which the findings were based.
(3) This section is a determinative provision.
Part 1.2 of Schedule 1 the MAI Act sets out what are termed ‘ACAT reviewable decisions’. An applicant for defined benefits may apply to the Tribunal for external review of an ACAT reviewable decision “on a question of law or fact” (section 193). The Tribunal’s powers on external review are set out in subsections 197(1)-(3) of the MAI Act.
197 External review—decision
(1)     In deciding an application for external review of an ACAT reviewable decision, the ACAT must, by order—
(a)affirm the decision; or
(b)amend the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter for reconsideration by the insurer that made the decision (the decision-maker) in accordance with any direction of the ACAT.
(2)     In deciding the application for external review, the ACAT must only consider the information that was available to the decision-maker when the decision was made.
(3)     However, the ACAT may, on application by a party, give the party leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made.
Despite the apparent breadth of the powers of the tribunal on external review, it has been accepted by past decisions that the role of the tribunal is to determine whether the reviewable decision is affected by any errors of law or fact.”[8] There was not dispute that this position, as adopted by the Presidential Member in this case, was the correct one.
[8] Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2022] ACAT 24 at [19]
There was some uncertainty in the hearing of this appeal over the basis of the original tribunal’s jurisdiction in this matter. The original tribunal appears to have proceeded on the basis that the internal review decision was a decision to refuse treatment and care not mentioned in the injured person’s recovery plan under section 126(2) of the MAI Act. Such a decision is an ‘ACAT reviewable decision’.[9] A decision under section 66(1) not to pay treatment and care benefits for stated treatment and care was also raised as a possible basis for the internal review decision[10] and the original tribunal’s jurisdiction.[11] A decision to not pay treatment and care expenses under section 129(1)[12] was also raised as a possible basis for the decision under review but is not an ACAT reviewable decision.
[9] Sch 1, Part 1.2, item 27
[10] Sch 1.1, Part 1.1, item 7
[11] Sch 1.1, Part 1.2, item 13
[12] Sch 1.1, Part 1.1, item 24
The scheme therefore differentiates between the initial application for payment of defined benefits, and subsequent requests for payment of treatment and care expenses.[13] The obligation to pay treatment and care expenses under section 129 only arises where the expenses have been approved or are included in the person’s recovery plan (section 129(4). The scheme may therefore limit the basis on which pre-approval of treatment and care expenses may in itself be subject to review.[14] However, given in this case section 126(2) provides a sufficient basis for the jurisdiction of the original tribunal we do not need to consider this issue further.

Alleged errors

[13] See eg. s 71
[14] Cf Ahmad v Insurance Australia Ltd t/as NRMA [2015] ACAT 11

In their amended application for appeal, the insurer set out five grounds for appeal. These are considered in turn below.
Ground 1: Role of NDIS funding.
The insurer claimed that the original tribunal erred in its treatment of the role of the original applicant’s NDIS funding in the internal review decision.
The original tribunal considered the wording of section 120 and the factors to be considered in deciding whether treatment and care is reasonable and necessary to be:
focused upon the relationship between the proposed treatment and care and the person’s injury. It does not require or, in my view permit, consideration of other funding which may have been provided to the injured person.[15]
[15] Original decision at [88]
Similarly, the original tribunal noted that clause 6.4.1. of the Treatment and Care Guidelines:
indicates that treatment and care for a pre-existing injury which has been exacerbated by an accident is directly related to the person’s injury from the accident. The guidelines do not suggest that an apportionment approach should be taken (such as by saying that the treatment and care is only reasonable to the extent that it relates to the exacerbation of the injury but not otherwise). Rather, the exacerbation of the injury by the accident is sufficient to establish the relevant direct relationship which makes treatment and care of that entire injury, as exacerbated, reasonable and necessary (subject to other considerations).[16]
[16] Original decision at [92]
Later, in comparing the approach of the internal reviewer to that required under the Act, the original tribunal stated:
An injured person’s pre-existing injury is relevant to the consideration of whether the proposed treatment and care is reasonable and necessary in the circumstances within section 126(2)(a) of the MAI Act, only to the extent that it assists in determining whether the proposed treatment and care is directly related to the person’s injury under section 120(b)(i) of MAI Act. In other words, treatment and care for an injury which existed before the accident, and which was not exacerbated by the accident, is not reasonable and necessary. However, where a pre-existing injury has been exacerbated by an accident, the treatment and care of the whole injury is directly related to the person’s injury.[17]
[17] Original decision at [103] emphasis added
The original tribunal concluded:
The internal reviewer’s reasons indicate that, although he accepted that the motor accident materially contributed to the applicant’s ongoing need for support and domestic assistance, he only considered the support and assistance to be reasonable and necessary to the extent that it was not already covered by the applicant’s NDIS funding. That discloses an error of law.[18]
[18] Original decision at [109]
The insurer submitted that this approach of the original tribunal was contrary to common law principles which should properly inform interpretation of the MAI Act, including the appropriateness of limiting compensation for tortious injuries to account for possible future effects of pre-existing conditions.[19] The reference to injury in the relevant provisions of the MAI Act should similarly concern the aggravation and not the underlying condition. Treatment and care expenses should be referrable to the aggravation of pre-existing injuries, particularly where the existing condition is symptomatic prior to the injury in question.
[19] See Wilson v Peisley (1975) 7 ALR 571 at 574; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; New South Wales v Burton [2006] NSWCA 12 at [72]
The insurer therefore submitted that the internal reviewer’s decision, when correctly characterised, was correct when it sought to “assess what was the [original applicant’s] level of functioning and extent of care need prior to the accident, then determine how much more attendant care services it was liable for”.[20]
[20] Insurer’s submissions [24]
At the appeal hearing, the insurer also referred us to the provisions relating to whole person impairment and deductions for pre-existing conditions. In particular, the Motor Accident Injuries (WPI Assessment) Guidelines 2019 state:
Deductions for pre-existing condition or injuries
1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as “the deductible proportion” and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless not consistent with the available evidence.
This approach, the insurer submitted, is consistent with the position submitted by the insurer to be the correct approach to the assessment of treatment and care related to an injury.[21]
Consideration
[21] Transcript, 18 June 2025 at pp34-35
In our view there are several difficulties with the insurer’s view that treatment and care related to the motor accident do not include any expenses which were also related to a pre-existing condition. In particular we think that treatment and care where there has been an exacerbation of a pre-existing condition is included.
First, treatment and care expenses must be reasonable and necessary and “relate to a personal injury sustained in the motor accident” (section 113). Whether treatment and care is directly related to the person’s injury is merely to be considered in deciding whether treatment and care is reasonable and necessary (section 120(b)(i)). This suggests that treatment and care not directly related to the injury can still be considered reasonable and necessary and hence compensable, in particular an exacerbation of a pre-existing condition.
Secondly, other provisions relating to treatment and care expenses make explicit or inferential reference to the aggravating effects of injury. The provisions relating to recovery plans, for example, refer to the plan being required not just because the person is entitled to treatment and care benefits, but also because of the effect of the injuries from the accident. The purpose of the recovery plan is to enable the injured person to recover, as it were, the ability to undertake the duties and activities they participated in before the injury. The provision in section 126(2) for approval of treatment and care not mentioned in the recovery plan refers to treatment and care that is reasonable and necessary in the circumstances and will assist in the injured persons recovery or management of their injury. There would be limited need for these additional qualifiers if, as submitted by the insurers, the concept of injury itself limited treatment and care to only that required due to new or aggravated conditions.
Similarly, as noted above, section 129(2) allows MAI guidelines to verify that the injury for which the treatment and care was given resulted from the motor accident. In our view, this does not involve verifying the treatment and care in question was limited to being given solely for that injury.
Thirdly, and recognising the limited assistance provided by subordinate instruments in interpreting primary legislation, various MAI guidelines reflect the need for explicit limitation for aggravated conditions. As referred to in the original decision, the Treatment and Care Guidelines referred to treatment and care relating to exacerbation of pre-existing injury. Amendment to this Guideline has expressly included reference to the extent an injury relates to exacerbation of a pre-existing injury.
Similarly, guidelines relating to whole person impairment referred to by the insurer in submissions to the appeal hearing expressly exclude the contribution made by pre-existing impairments in assessing the degree of permanent impairment relating to the compensable injury.[22] Whole person impairment is defined as the degree of permanent impairment of the whole person resulting from personal injury sustained as a result of a motor accident. If pre-existing conditions were not included in the notion of impairment resulting from personal injury then there may be limited utility in making express reference in the guidelines to that extent. The absence of express reference in the Treatment and Care guidelines suggest the looser connection of related to a person’s injury in section 120 does not similarly exclude aggravated injuries.
[22] See above at paragraph [51]

The original tribunal also relied on the MAI Act’s express reference to only specified entitlements under other legislative schemes having the effect of limiting entitlement to treatment and care expenses under the MAI Act, such as compensation under a workers compensation scheme or the Territory Lifetime Care and Support scheme.[23] The National Disability Insurance Scheme Act 2013 (Cth), in contrast, “evinces a legislative intention that NDIS support is not to be used to provide treatment and care for injuries in respect of which a person is entitled to compensation under a statutory scheme”.[24]
[23] See above para [17]
[24] See original decision [111]
The question of entitlement for treatment and care expenses for aggravated injuries is made more difficult by the nature of treatment and care as defined in section 110 and related provisions. Rehabilitation, for example, is defined in terms of enabling or attempting to enable maximum level of independent living, full mental, social and vocational ability and full inclusion and participation in all aspects of life (section 111). It is not, in its terms, limited to a person’s potential prior to the motor vehicle accident. In this way it appears to go beyond the object of the Act to ‘encourage early and appropriate treatment and care of people injured in motor vehicle accidents to achieve optimum recovery and return to pre-accident levels of activity and care” (section 6(b)).
Attendant care services, which are in issue in this matter, are defined as services that aim to give the person assistance with everyday tasks. A person may require assistance with domestic services or home maintenance for a wide variety of reasons, increasing the difficulty of establishing to what extent the service is related to the injury sustained in the accident. The same attendant care service, such as assistance with domestic services, may relate to a number of otherwise unrelated injuries, and continue to be required even after the applicant has recovered from the original injury.
The context in which any assessment of whether treatment and care is reasonable and necessary is being made is also important. The purpose of the assessment is to determine whether it is appropriate under the MAI Act scheme for the insurer, having admitted liability for the payment of defined benefits generally, to pay for the particular treatment and care expenses in question. Assessing whether those expenses are reasonable and necessary under section 120 not only relates to their relationship with the injury and the appropriateness of the particular provider and cost-effectiveness of the treatment, but also has to be reasonable and necessary in the circumstances. Those circumstances, in our view, include the medical conditions and treatment and care being provided to the applicant prior to the motor accident. The question then arises whether it is reasonable and necessary for the insurer to pay for treatment and care in those circumstances.
It is not appropriate to attempt to limit, or substitute, the terms of the MAI Act in determining a person’s entitlement to treatment and care expenses. Treatment and care may relate to a person’s injuries even if the care in question was previously being provided in relation to other, pre-existing conditions. The nature and extent of the relationship between the injuries and the need for the care and treatment in question will then be a consideration in deciding if the treatment and care is reasonable and necessary. Whether treatment was previously being provided is just one factor to be considered in determining whether continuing that treatment and care is reasonable and necessary following the motor accident. The degree to which the treatment and care is related to the injury sustained in the motor accident when compared to its relationship with the injured person’s pre-existing conditions is one factor in considering the reasonableness of that treatment and care.
We agree with the original tribunal that the availability of funding under the original applicant’s NDIS package was not relevant to the assessment being conducted by the internal reviewer in this case. The fact that funding might be available to provide the treatment and care is not relevant to whether that treatment and care is reasonable and necessary for the injured person as part of the assessment under the MAI Act. The liability of the insurer to pay for treatment and care expenses is not just a question of whether an injured person will otherwise incur additional financial expenditure after the accident.
However, the original applicant’s NDIS funding may have been relevant to determining what the original applicant’s treatment and care needs were prior to the motor accident. Those needs may in turn be relevant to understanding whether the injuries sustained in the motor accident are new medical conditions or the exacerbation of existing conditions. The reasonableness and necessity of treatment and care is then to be assessed against an understanding of those injuries. The question of how treatment and care provided prior to a motor accident may affect the reasonableness and necessity of treatment and care arises here in at least two ways:
(a)where a pre-existing condition is exacerbated by the motor vehicle accident but the existing treatment and care needs related to the condition are continued. For example, a person may need assistance with driving due to their mental health conditions. The worsening of the person’s mental health does not change the nature of the assistance with driving needed by the person but further supports that need; and
(b)where a new condition sustained in the motor accident which would generally have required particular treatment and care but that treatment and care need is already being provided. For example, a person may need assistance with driving due to a physical injury. As a result of the motor accident the person suffers a mental health condition which would also prevent them from driving. Again, the addition of the mental health condition does not change the nature of the assistance with driving needed by the person, but further supports that need.
In these examples, the question then arises whether the insurer is liable for the expense of providing assistance every time the injured person reasonably needs to drive, or only assistance with driving to appointments or treatment and care otherwise relating to the accident.
The insurer submitted at the appeal hearing that the findings of the original tribunal indicate that this case fell in the second example. The original tribunal had stated (at [104]):
Here, the material established that the applicant suffered from autism and ADHD before the accident and acquired PTSD as a result of the accident. The relevant question was what attendant care services were reasonable and necessary as a result of the applicant’s PTSD and as a result of other injuries the applicant suffered because of the motor vehicle accident.
This, the insurer submitted, was a finding that it was not an exacerbation of the original applicant’s existing conditions but the development of PTSD that gave rise to the need for the treatment and care expenses.
The original tribunal, however, went on to find that the internal reviewer did not clearly identify the injuries caused by the motor accident for which attendant care services were required. That meant, in the view of the original tribunal, that the internal reviewer did not “determine which services that aim to give the applicant assistance with everyday tasks were reasonable and necessary, having regard to the applicant’s injuries”.[25] The internal reviewer instead considered support and assistance to be reasonable and necessary to the extent that it was not already covered by the applicant’s NDIS funding. It was this reliance on NDIS funding that, the original tribunal found, discloses an error of law.[26]
[25] Original decision at [107]
[26] Original decision at [109]
The insurer submitted that this finding mischaracterised the internal reviewer’s decision. They submit that the internal review decision, in referring to information about the original applicant’s NDIS funding, was referring to an assessment of the treatment and care which was required due to the original applicant’s pre-existing conditions prior to the motor accident. The internal reviewer was therefore properly concerned with determining which of the needs of the original applicant relate to the injuries caused by the motor accident.
We agree with the insurer that an understanding of the treatment and care actually provided under the applicant’s NDIS funding was relevant to the internal reviewer’s decision to the extent it provided information on the pre-existing conditions of the applicant and the treatment and care of those conditions prior to the motor accident. To the extent the original tribunal based their decision on the conclusion that the treatment and care being provided prior to the accident was not relevant to whether the treatment and care proposed by the original applicant was reasonable and necessary then the original tribunal is in error.
However, in our view the error made by the internal reviewer was not that they had considered the pre-existing treatment and care to be relevant, but that they had considered that pre-existing treatment and care to not be covered by the MAI Act. In other words, the internal reviewer seemed to accept that if the original applicant was receiving NDIS funding for certain conditions, then treatment and care for those conditions would not be reasonable and necessary for injuries, including an exacerbation of any pre-existing conditions, arising from the accident. As we have set out above, in our view that is inconsistent with the task of the internal reviewer in considering whether providing treatment and care following the motor accident is reasonable and necessary.
We therefore do not agree with the original tribunal that any exacerbation of an injury is sufficient for all of the treatment and care of that injury to be reasonable and necessary. Similarly, we do not agree with the internal review decision, discussed further below, that treatment and care provided prior to the accident for pre-existing conditions can in all circumstances be discounted from the treatment and care needed after the accident for new or exacerbated conditions. Whether pre-accident treatment and care is part of the reasonable and necessary treatment post-accident depends on the degree of exacerbation or new injuries and the nature of the treatment and care in question.
This is discussed further below when we consider the internal review decision in more detail in considering ground 2 of the alleged errors.
Ground 2: the role of the Occupational Therapist’s Report
The original tribunal found, as an independent error of law, that the internal reviewer had inappropriately relied upon the assessment of Ms Megan Spavins, an occupational therapist, because Ms Spavins was not an appropriately qualified health practitioner with the expertise to provide the assessment as required in the Treatment and Care Guidelines (clause 3.2.1). The original tribunal held that the applicant’s request for attendant care services was directly related to her PTSD, and so the assessment “should have been conducted by a psychiatrist or, possibly, a psychologist”.[27]
[27] Original decision [118]
The insurer submitted that this finding was in error, as the occupation therapist had accepted the diagnosis of the original applicant’s PTSD and related symptoms and had the relevant expertise to assess the extent of the reasonable and necessary attendance care services referrable to that injury.[28] The insurer also submitted that the alternative report by Dr Javed relied on by the original applicant had numerous issues, and that the occupational therapist’s opinion was ‘the best evidence to inform the assessment of the respondent’s needs referrable to the accident”.[29]
The Occupational Therapist’s Report
[28] Amended Grounds of appeal [2]
[29] Insurers Submissions, [33] – [34]
The Occupational Therapist’s Report in question was based on visits to the original applicant’s home on two separate occasions. It includes a description of medical reports indicating “some PTSD symptomology of intrusive thoughts, reduced concentration and limitation of community engagement”.[30] It describes the original applicant’s reported symptoms and efforts to locate and receive medical, psychological and psychiatric care. It describes the original applicant’s pre- and post-accident social history, leisure activities, management of finances, work history and care needs. The Report describes the original applicant’s pre-accident care needs as:
[the original applicant] confirms she did have access to NDIS funded support prior to the accident. She reports she had funding for 4 hours per week for community participation. The details of the specific funding allowances made by the NDIS are not clear. Further details from the NDIS outlining her care package prior to the accident would be useful in determining pre-injury allowances.[31]
[30] Occupational Therapist’s Report p 2, p 260 of original docs
[31] Occupational Therapist’s Report p 8, p 266 of original docs
The Report then sets out the original applicant’s statements that her care needs have increased from “one day per week prior to the accident to daily care at present”.[32] The times where the original applicant’s support worker is available, totalling 28.5 hours over the week, are also set out. The Report also sets out various forms of support for which the original applicant reported receiving NDIS funding, and the reasons for which she reported needing a care worker to be present. The report then lists various reported and observed capacities of the original applicant.
[32] Occupational Therapist’s Report p 8; p 266 of original docs
The Occupational Therapist’s Report makes various comments on the original applicant’s mental health, including her results on tests for depression, anxiety and stress as well as two tests relating to cognitive functioning. The Report notes that the original applicant’s “cognitive abilities should be interpreted within the context of her comorbid psychiatric conditions” and that she was “unable to conclude if and to what extent the car accident and sequelae have impacted in the cognitive domain as no pre-accident baseline cognitive tests are available”.[33]
[33] Occupational Therapist’s Report p 17, p 275 of original docs
In summarising her findings, the occupational therapist reports:
[the original applicant] experiences significant difficulties with daily routines and self-care activities due to low energy levels and motivation associated with anxiety and depression. Although evident prior to the accident, these symptoms appear to have become exacerbated and have greater impact on function than previously, according to [the original applicant’s] self-report. Collateral information or pre-injury records would be valuable in ascertaining the extent to which her functioning has changed since the accident.[34]
[34] Occupational Therapist’s Report p 17, p 275 of original docs
The Occupational Therapist’s Report makes several recommendations for future allied health care, including engaging with a psychologist and psychiatrist as well as an “occupational therapist who would explore practical measures to regain independence in activities of daily living with a reduced focus on the need for support work to be present and a positive move toward independent participation”.[35]
[35] Occupational Therapist’s Report p 17, p 276 of original docs
The Report recommended 3 months of weekly domestic support, including 2 hours per week of domestic assistance, but noted that this allowance may already be covered by the original applicant’s NDIS package. Gardening support was noted as currently provided in the original applicant’s NDIS package and so not required at that stage.
In relation to care worker support, the report states that the original applicant’s perceived high level of care needs could be reduced if she participates in the recommended health rehabilitation services. The report notes that the original applicant has overextended her current care package with the NDIS, having exhausted her funding twice in one calendar year and application for further funding has been declined. The Report then states:
·        It would be valuable to better understand the provisions already in place from the NDIS both currently and prior to her accident, but unfortunately [the original applicant] has not provided consent to access these records from her Care Coordinator at the NDIS.
·        I am of the opinion that there does appear to have been an exacerbation in symptoms as a result of the accident, but this is difficult to quantify considering her pre-existing status and provisions already in place with her long-standing NDIS package.
·        In my opinion, it would seem reasonable to allow for an additional 4 hours of support worker assistance per week, over and above that which is currently provided by the NDIS.
·        This additional support worker assistance would be to assist [the original applicant] in scheduling, preparing for and attending her various motor vehicle related rehabilitation appointments.
·        It is further anticipated that this level of support would reduce as [the original applicant] progresses through her treatment program over a period of 4-6 months and then be reviewed.[36]
Internal review decision
[36] Occupational Therapist’s Report p 20, p 278 of original docs
The internal review decision of 8 September 2023 summarises various reports and other documents relating to the assessment of antecedent care needs. This includes an extensive summary of the findings and recommendations of the Occupational Therapist’s Report. The decision also summarises an email from the original applicant’s support worker stating that the original applicant required a minimum of 20 hours support each week, including increased support for “attending appointments, recreational activities, transport and support to access the community, in home intensive support during crisis and social/community participation”.[37]
[37] Internal review decision p 11
The internal review decision also references an email from the original applicant with a further report from her treating psychiatrist. We understand that to include a reference to the report from Dr Javed on 30 April 2023, which will be discussed further below in relation to Ground 3.
In the summary of findings, the internal reviewer states the “the specifics of the level of treatment you were receiving before the motor accident is not clear”[38] but acknowledges that the evidence indicates the condition was well managed and the original applicant was able to drive and be involved in the community. The decision states that “after the accident, you have required a significant amount of treatment” and that all the medical and allied health practitioners who have assessed you, including Dr Chambers, a psychiatrist, and the occupational therapist, agree that “the motor accident exacerbated and contributed to you (sic) deteriorated mental state”, and accepts that the motor accident has materially contributed to ongoing need for support and domestic assistance. It then states:
[The Occupational Therapist’s Report] noted that it was difficult to assess the needs that relate to the motor accident because she had no information from the NDIS. You have refused to consent for that information to be released to AAMI and have not provide (sic) [the insurer] with any reports that you have in your possession. In the absence of that evidence, Ms Spavins recommended four (4) hours of support in addition to any hours being funded by the NDIS.
I consider the requests for your consent to obtain your NDIS files is reasonable. One can only properly consider what needs relate to injuries caused by the motor accident by being properly informed of the level of care that was provided before the motor accident.[39]
[38] Internal review decision p 13
[39] Internal review decision p 13

The decision then suggests that the original applicant could apply for approval of further hours depending on her appointments from week to week. It then states:
In relation to pre-approving a greater number of hours, I am not satisfied on the current evidence, and particularly in the absence of NDIS records, that any additional hours relate to injuries caused by the motor accident and are reasonable and necessary.[40]
[40] Internal review decision p 14
The internal review decision affirmed the decision to approve 2 hours of domestic cleaning services and assistance of a support worker for 4 hours per week.
Consideration
It is clear that the decision of the internal reviewer relies on the Occupation Therapist’s Report’s recommendation for the level of attendant care services. It also relies on the Occupational Therapist’s Report as one of the medical and allied health practitioners who have assessed the original applicant and agreed the motor accident has exacerbated and contributed to the original applicant’s deteriorated mental state. However, the basis of the Occupational Therapist’s Report’s recommendations for assistance of a support worker, and the internal reviewer’s acceptance of those recommendations, is not so clear.
The Occupational Therapist’s Report concludes that an additional 4 hours of support worker assistance per week over and above that which is provided under the original applicant’s NDIS funding. However, the Report acknowledges that the author does not have access to the details of that funding including the amount of support worker assistance provided. It is therefore not clear what amount the recommended 4 hours is in addition to.
The reference to additional support could be interpreted as a reference to the need for support for the additional “scheduling, preparing for and attending [the original applicant’s] various motor vehicle related rehabilitation appointments”. This suggests that it is only the various additional appointments recommended in the Occupational Therapist’s Report which are related to the motor accident for which support should be provided. It is the need to attend the appointments rather than an assessment of the need for support given the nature of the tasks associated with that attendance. The 4 additional hours per week may be argued to be an assessment of the time involved with supporting these additional appointments.
To the extent this recommendation of 4 additional hours is based on the assessment that the NDIS funding provides any other support needs that might be considered reasonable and necessary, the absence of details of the NDIS funding means there is no rational basis for the recommendation.
Alternatively, if, as the insurer submits, the reference to the NDIS package reflects an assessment of what care and support was being provided to the original applicant prior to the accident, then the recommendations reflect an assessment that the only support worker needs that have arisen after the accident are those associated with having to attend additional appointments. There is no suggestion that the need for support worker assistance for these additional appointments is due to their difficulty compared with other aspects of the original applicant’s daily life. The assessment therefore implicitly rejects the statements from the original applicant and her support worker that the type and level of support provided has increased since the accident. In our view, there is no rational basis for that rejection available on the evidence set out in the Occupational Therapist’s Report.
The internal review report, in relying on the Occupational Therapist's Report, repeats these errors. The reviewer states that “[o]ne can only properly consider what needs relate to injuries caused by the motor accident by being properly informed of the level of care provided before the accident”. This suggests that they were intending to use the NDIS records to inform the level of care actually being provided. However, in the absence of those records, there is no rational basis on which the internal review could form a view that the Occupational Therapist’s Report reflected a qualified assessment of the amount of additional care needed.
The internal review report notes on numerous occasions the medical evidence of exacerbation caused by the motor accident. The internal review report summarises that evidence in stating that all the medical and allied health practitioners who have assessed you, including Dr Chambers, a psychiatrist, and the occupational therapist, agree that “the motor accident exacerbated and contributed to you (sic) deteriorated mental state”, and accepts that the motor accident has materially contributed to your ongoing need for support and domestic assistance”.[41] It is difficult to see how this finding supports the decision made to accept the recommendations of the Occupational Therapist’s Report.
[41] Internal review decision p 13
We therefore agree with the original tribunal that the internal reviewer made an error of law in accepting the recommendation of the Occupational Therapist’s Report that an additional 4 hours per week of support worker assistance be provided. We consider there was no rational basis for the occupation therapist’s recommendation, and accordingly no rational basis for the internal review decision which relied on that recommendation in affirming the decision under review.
As we have not been able to identify a rational basis on which the Occupational Therapist’s Report was based, we make no comment on whether the occupational therapist was qualified to reach the conclusions in that report.
Ground 3: assessing the amount of attendant care services that are reasonable and necessary
The original tribunal, after concluding that the internal reviewer made a material error of law, set aside the decision and, given the time that had elapsed since the internal review decision and the decision of the original tribunal and the public interest in finalising the decision, substituted a new decision approving 23.5 hours of attendant care services per week.
In reaching that decision, the original tribunal relied on the report of Dr Javed of 30 April 2023 that the original applicant required assistance and support to manage self-care activities of daily living, including picking up and reminding her to take medications and managing appointments. The appointments in the applicant’s recovery plan and the acceptance by the internal reviewer that a typical allowance for each appointment is 4 hours equated to ten hours a week on average of support to attend appointments.[42] The original tribunal also considered 3 hours per day on the days not attending appointments to be a “conservative estimate” of the time needed to assist the original applicant with communication with banks, health care professionals and government organisations along with self-care and self-management in planning and undertaking daily activities.[43] The original tribunal was satisfied that these hours of attendant care services were reasonable and necessary having regard to the factors in section 120 of the MAI Act.
[42] Original decision [132] – [133]
[43] Original decision [134]
The original tribunal then referred to the requirement for recovery plans to be reviewed every 13 weeks, and the ability of the original applicant to apply again to have treatment not included in her recovery plan approved to reflect more recent medical evidence indicating more hours were reasonable and necessary in the circumstances.
The insurer submitted that, consistently with their first alleged ground of error, that the original tribunal erred in not regarding the original applicant’s NDIS funding as relevant and hence not being able to make a determination of the change in the original applicant’s support needs which resulted solely from the motor accident.[44] The insurer submitted that there were deficiencies with the report of Dr Javed, including that it failed to differentiate between “the effects of the accident and the respondent’s prior disabilities”.[45] The insurer also submitted that the original tribunal did not take into account other medical evidence suggesting the original applicant suffered from on-going physical and psychological problems before the accident.
Consideration
[44] Amended application for appeal [3]
[45] Submissions [35]
As we have discussed above, the assessment of whether treatment and care is reasonable and necessary relevantly includes consideration of the extent to which existing medical conditions, including their symptoms and effects on a person’s functioning, have been exacerbated by the motor accident, and what alterations, if any, to the treatment of care being provided prior to the motor accident are required due to the exacerbation. It also requires consideration of whether treatment and care which was previously provided for pre-existing medical conditions may continue to be suitable, with or without modification, as treatment and care of any additional injuries suffered in the motor accident. The task of the reviewer is to consider whether treatment and care may still be reasonable and necessary in those circumstances, considering the contribution of the pre-existing conditions to the need post-accident for particular treatment and care. The extent to which the effect of the motor accident can be distinguished from the on-going effects of pre-existing conditions may also be relevant.
We agree with the original tribunal that there is a strong public interest in this case to finalise a decision on the approved treatment and care of the original applicant. This is not only due to the passage of time, now amplified, since the accident and the internal review decision, but also the need to establish the basis on which future treatment and care may be assessed.
However, given the nature of the assessment in question, the appropriate role of suitably qualified health practitioners and deficiencies of the evidence relied upon by the internal reviewer or otherwise available to the Tribunal, we consider the appropriate course is to remit the matter to be reconsidered by the insurer, including adducing additional evidence on which to base any assessment of attendant care services.
Ground 4: denying procedural fairness by not providing details of NDIS funding
The insurer submitted that they were denied procedural fairness as they were not given access to relevant material, namely details of the original applicant’s NDIS funding, including details of the hours of support and funding expenditure provided under that funding, provided before and after the motor accident.
We understand this ground to allege, not that the insurer was denied notice of and an opportunity to comment on adverse material taken into account by the original tribunal, but that by not enforcing access to the material altered the procedural context within which the Tribunal’s review was to proceed.[46] More broadly, this ground rests on the role of details of the original applicant’s NDIS funding as part of the fair assessment by the insurer and the original tribunal of the claim for approval of the treatment and care.
Consideration
[46] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [30]
As described above, section 51 of the MAI Act provides for an authority to disclose personal health information in which the injured person consents to the disclosure of their health information to the insurer. The section lists various people who can be authorised to disclose that health information, including the injured person’s treating health service provider or member of their treating team, and people involved in certain assessments under the MAI Act including a health practitioner who conducts an assessment of the injured person’s needs for treatment and care, a whole person impairment assessment or a significant occupation impact assessment.[47] Under section 57, that authority to disclose must accompany an application for defined benefits, and the processing of such an application or payments of defined benefits can be suspended if an information disclosure consent reasonably required by the insurer is not provided. Consent to disclosure by agencies involved in providing NDIS funding are not included in either of these provisions.[48]
[47] MAI Act, s 54(1)(b)(i)
[48] Note that there is also provision in s 468 for licenced insurers to transfer personal health information to another licenced insurer who may be liable in relation to an application or claim under the MAI Act where the injured person consents.
Section 121 enables a relevant insurer to require an injured person attend a health practitioner for an assessment of their needs for treatment and care. As set out above, it requires an injured person to comply with any reasonable request made by the relevant insurer in relation to the assessment, and enables the insurer to suspend treatment and care benefits until the person complies.
The Treatment and Care Guidelines include:
3.3 Information a health practitioner may ask an injured person in relation to a health assessment
A health practitioner conducting the assessment may ask an injured person to provide specific information in the person’s possession, such as medical images, that is relevant to the assessment, and any other information the health practitioner reasonably requires for the assessment. If the health practitioner asks for information to be provided before an assessment, the information should be provided to the practitioner at least 5 calendar days prior to the assessment.
The insurer has not claimed that it was acting under s 121 in suspending payment of treatment and care benefits, or that the MAI Act otherwise enabled the insurer to require the original applicant disclose details of her NDIS funding. We would not be willing in any event to extend the express provision in the MAI Act to enable a health practitioner carrying out an assessment under the MAI Act to ask for personal information which could not be provided under an authority to disclose personal health information.[49] We also note that section 121(2) requires the injured person to comply with any reasonable request made by the insurer “in relation to the assessment” of the injured person’s needs for treatment and care. This does not include material that is relevant to whether that treatment and care is reasonable and necessary for the purposes of section 120.
[49] We note that s 12 of the Human Rights Act 2004 provides that everyone has the right not to have his or her privacy interfered with unlawfully or arbitrarily. Section 30 provides that so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with such human rights. The MAI Act should be read in light of these provisions.
As we have discussed above, information about NDIS funding may be relevant to the extent it reveals the treatment and care being provided prior to a motor accident. It is not, however, the only form of evidence which would be relevant to that question, and in our view it is not necessary for a fair assessment of whether treatment and care is reasonable and necessary. The absence of NDIS funding details is not a basis under the MAI Act on which adverse inferences can be drawn about the level of treatment and care being provided. It is also, in our view, not properly a basis on which an adverse inference can be drawn about the credibility of the original applicant and their evidence relating to changes in their required levels of support.
We therefore do not consider it a requirement that the applicant provide details of their NDIS funding in any reconsideration of approval of attendant care by the internal reviewer.
Ground 5: Duration of the approval of treatment and care
The amended grounds of appeal also submit that the original tribunal was in error to the extent their orders approve provision of 23.5 hours per week of attendant care services beyond a period of 6 months from the date of the original decision dated 25 August 2023.
The insurer points to the approval provided by the insurer in a letter dated 25 August 2023 addressed to the original applicant’s support worker.[50] That letter describes the approval of “4 hours of support worker assistance per week … for 6 months from the date of this letter”. The insurer submitted that it was appropriate for the approval to be for a period of 6 months given the benefits would be subject to ongoing review and there was a reasonable expectation that the original applicant’s condition would improve.
[50] Transcript 18 June 2025 at pp 72-74
At the appeal hearing, the insurer also pointed to the recommendations in the Occupational Therapist’s Report which states that it is “further anticipated that this level of support would reduce as [the original applicant] progresses through her treatment program over a period of 4-6 months and then be reviewed”.[51] The insurer also submitted that the reference to 2 hours of domestic cleaning services in the internal review was in addition to that provided in the original decision.
[51] Occupational therapists report, Original documents p 278
The original applicant submitted that she was unaware that the original approval was just for 6 months, and there is nothing on the internal review decision to indicate that it is so limited. The letter in question also does not refer to the 2 hours of domestic services which is part of the internal review decision. We also note that the letter refers to an enclosed copy of the correspondence sent to the original applicant detailing the grounds for the partial approval of the request, but we were not taken to any document which was enclosed or which matches the description.
We note a letter dated 25 August 2023 from AAMI MAI Claims to the original applicant was before the original tribunal and referred to in the original decision.[52] This letter is in similar terms to the letter to the original applicant’s support worker referred to above, including that it states that there has been approval for “4 hours of support worker assistance per week … for 6 months from date of this letter”.
Consideration
[52] Original documents pp 815-818. The original decision at [22]-[23] incorrectly refers to pages 763-764, and 769 when referring to the letter of 25 August 2023, but quotes from the letter in the same terms as p 816 of the original materials.
It is not clear to the Tribunal that the original decision under review was expressly limited to 6 months in duration. There is no reference in the internal review decision that it was approving 2 hours of domestic services in addition to the previous approval. We note in particular that the internal reviewer describes themselves as being “required to determine whether a greater number of hours of support worker to assist [the original applicant] are reasonable and necessary and should be approved”.[53] We also note that the summary of findings makes no reference to 2 hours of domestic cleaning support. Therefore, while we accept that the decision of the internal review is expressed as affirming the decision of the AAMI Claims Team, it is not clear that the decision being affirmed includes being limited to 6 months in duration.
[53] Internal review decision p 12
The original tribunal ordered that the internal review decision is set aside and in substitution for that decision the original tribunal approves attendant care services for 23.5 hours per week. Other than in summarising the recommendation of the Occupational Therapist’s Report that support work be reviewed after 4-6 months, there is no reference in the decision to the approval being for a limited duration. The original tribunal refers in their decision to the requirement for the insurer to review a recovery plan every 13 weeks and the ability of the original applicant to apply for approval of further hours. The original tribunal was therefore aware of the dynamic nature of the approval.

We are not satisfied that the issue of the limited duration of the original approval as affirmed by the internal review decision was raised before the original tribunal such that it was an error by the original tribunal to not expressly refer to the approval’s limited duration. We also do not consider it a requirement under the MAI Act that any approval be limited in time. In our view, the approval of treatment and care under section 126 is, without explicit limitation, ongoing. The approval of treatment and care under section 126(2) can be effectively varied through amendment of the recovery plan and subject to the requirement that the insurer consult with the original applicant and their doctor. There is no evidence before us to suggest that the recovery plan has been amended so as to vary the amount of attendant care services available. Any reconsideration of the approval would therefore, in our view, be effective from the date of the internal review decision (see section 191(3)) until the date the reconsideration is completed and the original applicant informed of the decision, or a new recovery plan is put in place limiting the approval of attendant services. We also note that the reconsideration is properly made on the basis of the Treatment and Care Guidelines in effect at the date of the internal review decision.

Orders

We therefore order that the decision of the original tribunal be set aside, and in substitution make the following order:
(a)The original respondent’s decision of 8 September 2023 approving the assistance of a support worker for four hours per week is set aside.
(b)The matter is remitted for reconsideration by the original respondent in accordance with this decision.

………………………………..

Acting Presidential Member D Stewart
For and on behalf of the Tribunal

Date(s) of hearing:	18 June 2025
Counsel for the Applicant:	Brendan Jones
Solicitors for the Applicant:	Moray & Agnew Lawyers
Respondent:	Self-represented