Diakanastasis v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMR 8
•17 March 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Diakanastasis v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 8 |
CLAIMANT: | Stefanos Diakanastasis |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
MERIT REVIEWER: | Katherine Ruschen |
DATE OF DECISION: | 17 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 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); whether travel expenses are reasonable and necessary in order to obtain treatment; Held – section 3.24(1)(b); the reviewable decision is set aside. |
DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION The reviewable decision is about whether the cost of treatment and care provided to the claimant is reasonable for the purposes of section 3.24(1) of the Motor Accident Injuries Act 2017 (the MAI Act) and is therefore a merit review matter under Schedule 2(1)(i) of the MAI Act. 1. The reviewable decision is set aside, and the following determination is made: (a) subject to the outcome of the medical assessment, the following kilometre (km) allowances for each attendance in the disputed expenses are considered reasonable for the purpose of calculating travel expenses under s 3.24(1)(b): (i) psychologist, Haberfield: 2.4km; (ii) chiropractor, Parramatta: 4km; (iii) general practitioner, Earlwood: 2.4km; (iv) Associate Professor Papantoniou, Kogarah: 19.8km plus toll difference $1.87; and (v) physiotherapist, Earlwood: 2.4km. (b) the balance of the kilometres and tolls claimed in the disputed expenses for attendances on the above treatment providers are not reasonable and are therefore not payable by the insurer. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Stefanos Diakanastasis (the claimant) and the insurer about whether certain travel expenses are reasonable for the purpose of s 3.24(1) MAI Act.
The claimant was involved in a motor accident on 5 November 2022.
The claimant lodged an application for personal injury benefits.
Various decisions were made by the insurer about reimbursement of travel expenses for travel to/from medical appointments culminating with the insurer’s decision dated
20 May 2024 in which certain travel expenses were declined.On 21 May 2024 the claimant requested an internal review of the insurer’s decision dated
20 May 2024.On 3 June 2024 the insurer issued their internal review decision in which further amendments were made to the insurer’s decision to decline certain expenses.
The claimant has requested a merit review of the insurer’s decision dated 3 June 2025
(the Application).
SUBMISSIONS
The claimant’s travel expense claim includes travel from work to home where the claimant detoured enroute to attend medical appointments (the disputed expenses). The insurer disputes these expenses on the basis they say the claimant would have travelled home from work on these dates regardless of any medical appointment and accordingly, would have incurred the disputed expense in any event.
The claimant relies on information on the State Insurance Regulatory Authority (SIRA) website that an insurer “may” pay travel expenses, including expenses to and from medical appointments and submits there is no requirement that travel must be to or from home rather than work to be entitled to reimbursement of travel expenses. The claimant submits the departure or return point is irrelevant to the question of whether the travel expense was reasonable and necessary and that the criteria used to determine whether treatment or care is reasonable and necessary is as follows:
(a) directly related to the injuries sustained in the motor vehicle accident;
(b) aimed at helping the injured person get back to their usual activities;
(c) appropriate for the type of injury;
(d) provided by an appropriately qualified health professional; and
(e) cost effective.
The claimant relies on s 3.24 of the MAI Act, cl 33 of the Motor Accident Injuries Regulation 2017 (the Regulation) and cl 4.105 of the Motor Accident Guidelines (the Guidelines).
The insurer submits that 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.
The Insurer relies on the decision in Chen v QBE Insurance (Australia) Limited [2022] NSWPICMR 55 (the Chen decision) in which it was noted that “if the claimant were compensated for her usual commute home it would represent overcompensation, which is inconsistent with the purpose of the MAI Act.”
The Insurer submits the Claimant is only entitled to travel expenses that are reasonably incurred as a result of attending his treatment providers and that any travel that would have normally been completed between the claimant’s home and work would therefore not be reasonable as it would constitute his “usual commute”. The Insurer submits that its calculations on costs are correct and has factored in travel to and from the Claimant’s appointments in accordance with the MAI Act and the Guidelines.
ISSUES
There is no dispute that the appropriate per kilometre allowance is $0.66 per kilometre (km)[1]. There also does not appear to be any dispute that travel to appointments was necessary for the discreet purpose of assessing whether the expenses are “reasonable and necessary” for the purpose of s 3.24(1)(b) of the MAI Act. As such, this dispute only concerns the question of whether the expenses are reasonable.
[1] As such, I do not need to address the relevance, if any, of cl 33 of the Regulation.
However, a medical assessment is on foot. The insurer has requested that this merit review be deferred pending the outcome of the medical assessment. However, I do not consider this necessary. There is no reason why the discreet issue of whether the costs are reasonable cannot be determined in the meantime. This is the most efficient course. Of course, it follows that if the outcome of the medical assessment is that the insurer is not liable to pay all or some of the treatment then any associated travel expense claim would also not be payable. Accordingly, the determination in this merit review will be subject to the outcome of the medical assessment where there is overlap that is, treatment that is the subject of a travel expense claim and also the subject of the medical assessment.
REASONS
Legislation
Section 3.24 of the MAI Act provides:
“3.24 Entitlement to statutory benefits for treatment and care;
(1) an injured person is entitled to statutory benefits for the following expenses ("treatment and care expenses") incurred in connection with providing treatment and care for the injured person;
(a) the reasonable cost of treatment and care;
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable;and
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) no statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
(3) the Motor Accident Guidelines may provide for;
(a) circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and
(b) circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2)”.
[emphasis added]
Consideration
The claim falls under s 3.24(1)(b), which 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). Accordingly, for the claimant’s travel expenses to be paid they must be both “reasonable and necessary” and must be for the purpose of obtaining treatment for which statutory benefits are payable[2].
[2] As such, this determination in this merit review will be dependent on the outcome of the medical assessment to the extent there is an overlap. If the outcome of the medical assessment is that statutory benefits are not payable for any particular treatment that also has a travel expense claim, then the related travel expense will also not be payable by the insurer.
The criteria relied on by the claimant for the purpose of assessing whether travel expenses are reasonable and necessary, as set out in paragraph 23 of the claimant’s submissions and paragraph nine above applies to assessment by health providers as to whether the treatment they propose providing is reasonable and necessary. It is clear from the wording of s 3.24 in particular, s3.24(1)(b) that travel expenses associated with obtaining treatment and care fall into a separate category to the treatment and care itself, which is accommodated in s 3.24(1)(a). The preamble to the criteria relied on by the claimant (found on SIRA website page: reads:
“Before providing treatment services, health providers must ensure the treatment meets the ‘reasonable and necessary' criteria…” [emphasis added].
It is clear from this preamble, and the criteria itself, that the criteria pertains to assessment by health providers regarding the specific treatment or care they propose providing to the injured person and not associated travel expenses which are provisioned for separately in s 3.24(1)(b). I therefore conclude this is not the applicable criteria for assessing whether travel expenses are reasonable. Indeed, it is difficult to see how the reasonableness of travel expenses could be assessed against any of the criteria relied on by the claimant other than the last of the criteria, being cost effectiveness.
As to the SIRA website page relied on by the claimant this is simply a general information page which states that travel expenses “may” be payable. The relevant website page does not represent the criteria for assessing when such expenses will be paid. It does not contain any statement of mandatory impositions on an insurer.
Instead, the test in s 3.24 requires three questions to be asked:
(a) Question One: Is the treatment in respect of which the travel expense relates related to the injuries sustained in the accident? (this is a necessary question by virtue of the wording in s 3.24(1)(b) that the travel expense must be incurred “to obtain treatment and care for which statutory benefits are payable” [emphasis added] and s 3.24(2) which requires that the treatment in respect of which travel expenses were incurred must “relate to the injury resulting from the motor accident concerned”);
(b) Question Two: Is the travel expense associated with that treatment reasonable? (a requirement of s 3.24(1)(b)); and
(c) Question Three: Is the travel expense associated with that treatment necessary (also a requirement of 3.24(1)(b))?
If the response to any of the above three questions is “no”, then the Insurer is not liable to pay the travel expense as a statutory benefit, even if the remaining questions are answered “yes”.
Question One is a medical assessment matter. It is understood that some of the treatment associated with the travel expense claim may also be the subject of the medical assessment currently on foot. As stated above, this merit review only concerns Question Two[3] that is, whether the expense is reasonable. If the answer to Question One by the Medical Assessor is “no” in respect of any treatment that is the subject of a travel expense claim then the related travel expense claim will not be payable, regardless of the extent to which the travel expense is determined in this merit review as being reasonable.
[3] Based on the understanding that if the answer by the medical assessor to Question One is “yes” then the insurer accepts that the answer to Question Three in respect of any related travel expense is also “yes”.
I have considered the Chen decision further, which was decided by me, and I remain of the view that where an injured person attends a medical appointment on route to work and/or their home the cost of this travel is not reasonable to the extent that they would have travelled this route in any event. This is because the claimant would have travelled to work (or home) and therefore would have incurred the travel expense in any event other than any additional kilometres travelled to detour via the treatment provider on route.
Section 3.24(1)(b) provides that expenses must be reasonable and necessary “in order to obtain treatment and care for which statutory benefits are payable” (emphasis added). Once the claimant commences his journey to work or from work to home, regardless of whether he commences it from the treatment rooms, his travel expenses are in order to engage in his employment and not “in order to obtain treatment” as required by section 3.24(1)(b).
If the claimant were compensated for travel expenses in respect of any usual journey to or from work in circumstances where they would have undertaken that travel in any event for the purpose of engaging in work, it would be akin to a windfall or overcompensation. That is not the purpose of the MAI Act. The MAI Act compensates an injured party for their “loss”. In this case, the loss is an expense that would not have been incurred but for the injury. Regardless of the injury, the claimant would have made the same journey to and from work thus incurring the expense of travelling 60km each way. Accordingly, to the extent the claimant’s travel to a medical appointment included in part this same journey, the claimant has not suffered a loss.
“Reasonable” is not defined in the MAI Act so the words are to be given their ordinary meaning. The ordinary meaning of “reasonable” is having sound judgement; fair and sensible or as much as is appropriate or fair; moderate. It is an objective test. Having regard to the purpose of compensation it is not reasonable to compensate an injured person where a loss is not established. The fair, sensible and appropriate amount is to compensate the claimant for the additional kilometres travelled in order to detour to the treatment provider whilst on his journey home from work. In other words, the difference between the distance from the claimant’s work to home and the distance from work to home via the treatment provider.
The onus is on the claimant to establish the travel expenses are reasonable. This necessarily involves establishing he suffered the contended loss. The claimant’s primary contention is that his loss includes the cost of his usual travel from work to home. The claimant has not made any submission as to how or why kilometres he would have travelled in any event to return home from work amount to a loss he otherwise would not have incurred but for the accident.
The claimant is correct in stating there is no requirement for the claimant to travel only from home to medical appointments for the purpose of s 3.24(1)(b). However, the “reasonable” test, in my view, requires an assessment of the extent to which some or all of the travel would have been carried out in any event for purposes other than to obtain treatment such as for the purpose of engaging in work. If so, there is no loss for the purpose of compensation under the MAI Act.
The primary contention made by the claimant is that he should be reimbursed for the total distance travelled from work to the treatment provider, regardless of whether this formed part of his commute home from work. For the reasons outlined above and consistent with the Chen decision, I do not consider such travel expenses to be reasonable. As the claimant would have made the journey home from work in any event, he has not suffered a loss in this regard. As the answer to Question Two in paragraph 21 above is “no” in so far as the kilometres would have been travelled in any event, the cost of those kilometres is not payable by the insurer.
This leaves the alternative claim by the claimant that he should be reimbursed for the difference in kilometres between the direct route home from work and the route that includes detouring for treatment. The insurer agrees with this approach but there remains a dispute about calculation of the kilometre difference.
The parties do not, or do not clearly indicate how they arrive at their respective distances. The parties’ respective positions are as follows:
Healthcare provider
Distance difference calculated by claimant
Distance difference calculated by insurer
Psychologist, Haberfield
5.2
2.4
Chiropractor, Parramatta
6.2
3.4
General practitioner, Earlwood
13.2
1.4
Associate Professor Papantoniou, Kogarah
21.9
19.8
Physiotherapist, Earlwood
13.2
1.4
I have used Google maps and the addresses for the claimant’s home, workplace and healthcare providers. Where there is more than one route, I have adopted the most reasonable route that an objective driver would take. In some cases, I have made allowance for more than one route where either route would be reasonable. Unless specified below, no additional tolls would be incurred by the claimant as a result of making the detour on route home to any of the healthcare providers. Tolls associated with these journeys would therefore not be payable by the insurer (as they are not reasonable for the above reasons), unless specified below. The below distances are the travel distances by car that I consider reasonable. In each case, the distance difference is calculated on the basis that I have assessed the distance from the claimant’s work to home as being 60km with $10.38 in tolls that would have been incurred regardless of the accident.
Psychologist
The distance from the claimant’s work to his psychologist is 55km and the distance from the psychologist to his home is 6.2km to 6.7km depending on the route taken. Accordingly, total distance from work to home with the detour is 61.2km to 61.7km. This is a distance difference of 1.2km to 1.7km.
As the claimant’s calculation is significantly higher, I do not accept it as reasonable. Whilst the insurer’s calculation is also higher, I accept that it is within the reasonable range. Accordingly, I consider the insurer’s allowance of 2.4km per attendance as reasonable.
Chiropractor
The distance from the claimant’s work to his chiropractor is 40km to 41km depending on the route taken and the distance from the chiropractor to home is 22km to 23km depending on the route taken. This is a total distance from work to home with the detour of 62km to 64km and is a distance difference of 2km to 4km. I consider an allowance of 4km to be reasonable in all the circumstances.
General Practitioner Earlwood
The distance from the claimant’s work to his General Practitioner (GP) in Earlwood is 61km and the distance from the GP to home is 1.4km which totals 62.4km. This is a distance difference of 2.4km, which I consider reasonable.
Associate Professor Papantoniou
The distance from the claimant’s work to Associate Professor Papantoniou is 69km and the distance to then travel home is 7.8km which totals 76.8km. This is a distance difference of 16.8km. I therefore adopt the insurer’s allowance of 19.8km as being reasonable. Additionally, there is a toll difference of $1.87 to make this journey compared to the toll the claimant would incur in any event to travel from work to home. An additional allowance of $1.87 for this toll difference is considered reasonable.
Physiotherapist
The distance from the claimant’s work to his physiotherapist is 61km and the distance from there to home is 1.4km which totals 62.4km. This is a distance difference of 2.4km, which I consider reasonable.
CONCLUSION
For the reasons set out above I conclude that part of any travel expense that relates to kilometres that would have been travelled in any event for the purpose of work is not reasonable and therefore not payable under s 3.24 of the MAI Act.
I conclude that the additional kilometres to detour on route to the treatment provider are reasonable, as set out in paragraph 43 below.
It is understood that some of the treatment in respect of which the travel expenses claim relates may be the subject of the medical assessment yet to be determined. As such, whether the expenses I have found to be reasonable are payable may be dependent on the Medical Assessor’s answer to Question One in paragraph 21 above. Accordingly, to the extent any of the treatment that is the subject of a travel expense determined in this merit review is also the subject of the medical assessment, this decision is to be read in conjunction with the medical assessment decision once available.
The reviewable decision is set aside, and the following determination is made:
(a) subject to the outcome of the medical assessment, the following kilometre (km) allowances for each attendance in the disputed expenses are considered reasonable for the purpose of calculating travel expenses under s3.24(1)(b):
(i)psychologist, Haberfield: 2.4km;
(ii)chiropractor, Parramatta: 4km;
(iii)general practitioner, Earlwood: 2.4km;
(iv)Associate Professor Papantoniou, Kogarah: 19.8km plus toll difference $1.87; and
(v)physiotherapist, Earlwood: 2.4km.
(b) the balance of the kilometres and tolls claimed in the disputed expenses for attendances on the above treatment providers are not reasonable and are therefore not payable by the insurer.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines, and
· the Regulation.
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