Edwards v Allianz Australia Insurance Limited
[2024] NSWPIC 74
•21 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Edwards v Allianz Australia Insurance Limited [2024] NSWPIC 74 |
| CLAIMANT: | Yvonne Edwards |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| SENIOR MEMBER: | Williams |
DATE OF DECISION: | 21 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Statutory benefits dispute about expenses incurred to replace clothing destroyed during the course of treatment provided following a motor accident; where insurer declined to reimburse expenses as they were not “treatment and care” as defined in the Motor Accident Injuries Act 2017; where insurer contended that the dispute was a medical assessment matter falling within schedule 2 clause 2; Held – the dispute did not fall within schedule 2 clause 1, schedule 2 clause 2 or schedule 2 clause 3(a)-(m); the dispute fell within the terms of schedule 2 clause 3(n) and was a miscellaneous assessment matter not a medical assessment matter (nor a merit review matter); the expenses claimed did not fall within the definition of “treatment and care” and were not recoverable under division 3.4; there are no provisions in part 3 that provide for the recovery of the expenses; there is no equivalent provision in the MAI Act to section 75 of the Workers Compensation Act 1987; the insurer is not liable for the claimed expenses. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The insurer is not liable for the claimed expenses incurred by Mrs Edwards to replace destroyed clothing. |
REASONS
BACKGROUND
Yvonne Edwards was injured in a motor accident at Hurstville on 1 September 2023 (accident). She subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). On 9 October 2023 the insurer accepted liability for the claim for 52 weeks from the date of the accident.
A dispute has arisen between Mrs Edwards and the insurer in relation to a claim she made for reimbursement of expenses associated with the replacement of clothing that was destroyed when it was removed from her in the course of treatment being provided at hospital following the accident.
Mrs Edwards provided details of the clothing that had been destroyed in an email to the insurer dated 5 October 2023. While she did not have receipts for the replacement clothing she had purchased, she provided an estimate of the costs she had incurred. The total amount with respect to which she sought reimbursement was $395.
On 2 November 2023 the insurer declined to reimburse Mrs Edwards for the damaged clothing “because the request d[id] not meet the criteria outlined in division 3.4 of the [MAI Act] for Statutory Benefits for Treatment and Care”.
Mrs Edwards sought an internal review of the insurer’s decision. On 13 November 2023 the insurer declined to conduct an internal review on the basis that, as clothing expenses were not included within the definition of “treatment and care”, the insurer’s decision not to reimburse Mrs Edwards for her damaged clothing was “not an internally reviewable matter”.
Mrs Edwards subsequently commenced these proceedings in the Commission. In short, her case is that the expenses associated with replacing destroyed or damaged clothing constitutes “treatment and care” under the MAI Act, and that those expenses are recoverable by her.
The position taken by the insurer in its written submissions is that the dispute is a medical assessment matter, as defined in Sch 2 of the MAI Act. This position is at odds with the position taken by the insurer in its letter to Mrs Edwards dated 13 November 2023, in which it declined to conduct an internal review on the basis that the dispute about clothing expenses was not a medical assessment matter. This, the insurer determined, was because the clothing expenses did not fall within the definition of “treatment and care”.
CHARACTERISING THE DISPUTE
The dispute does not come within the terms of any of the matters declared by Sch 2 cl1 to be “merit review matters”, or by Sch 2 cl2 to be “medical assessment matters”. As to Sch 2 cl2, the dispute is not about whether any treatment and care provided or to be provided to Mrs Edwards is reasonable and necessary in the circumstances or relates to injury caused by the motor accident. The dispute is about whether the claimed expenses are “treatment and care”, or are otherwise compensable under the MAI Act. The dispute does not come within the terms of any of the matters referred to in Sch 2 cl3 (a)-(m).
I raised these matters with the parties at the preliminary conference, and advised the parties that I had formed the view that the dispute fell within the terms of Sch 2 cl 3(n).
That provision declares that any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in Sch 2 is a “miscellaneous claims assessment matter”.
I am satisfied that the issue of the insurer’s liability to pay the claimed expenses is an issue of liability for the claim that is not otherwise specified in Sch 2. That being the case, I informed the parties that I would determine the dispute as a miscellaneous claims assessment matter in my capacity as a Member of the Commission. At the preliminary conference the insurer resiled from the position it took in its written submissions, and agreed that I should proceed to determine the dispute on this basis.
STATUTORY FRAMEWORK
The entitlement to statutory benefits for treatment and care is dealt with in s 3.24 of the MAI Act as follows:
“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,
(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).
Note—
See Part 7 and Schedule 2 for provisions relating to disputes about whether treatment and care, or the cost or treatment and care, provided or to be provided to an injured person is reasonable and necessary.”
The definition of “treatment and care” is found in s 1.4 as follows: “treatment and care means the following—
(a)medical treatment (including pharmaceuticals),
(b)dental treatment,
(c)rehabilitation,
(d)ambulance transportation,
(e)respite care,
(f)attendant care services,
(g)aids and appliances,
(h)prostheses,
education and vocational training,
(j)home and transport modification,
(k)workplace and educational facility modifications,
(l)such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,
but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”
The Regulations do not contain any provisions that modify the definition of “treatment and care”.
PRELIMINARY CONFERENCE
A preliminary conference was conducted on 20 February 2024. Mrs Edwards attended with her husband. While she participated in the preliminary conference, Mr Edwards attended as her advocate. Mrs Edwards confirmed that this is what she wanted, and I am satisfied that it was appropriate; Mrs Edwards had some difficulty with her hearing, and Mr Edwards had many years’ experience in the insurance industry.
Mrs Edwards discussed the accident and the circumstances in which her clothing had been destroyed during the course of treatment being provided to her after the accident. Mr Edwards argued in support of the claim made by Mrs Edwards. I will address the various submissions made later in these reasons.
I explained the way in which the MAI Act operated, and the various entitlements under the Act that were available as statutory benefits. I explained that entitlements under the Act were set out in the various provisions in the Act and were not found in a policy, and that this was one difference between the way the Act operated when compared with a general insurance policy, such as a comprehensive motor vehicle policy.
I explained to Mrs and Mr Edwards that “treatment and care” was defined in the MAI Act, and that the definition did not include expenses incurred with respect to replacing destroyed or damaged clothing. Further, I explained that the MAI Act did not, in my view, make provision for the recovery of the expenses Mrs Edwards had claimed.
I informed Mrs and Mr Edwards (and the insurer) that I proposed to determine the dispute on the papers, and that I would issue a written decision that would be published. They agreed to me taking that course, as did the insurer.
ON THE PAPERS
I am satisfied that sufficient information has been supplied to the Commission in connection with the dispute and that, having heard from Mrs and Mr Edwards at the preliminary conference, the proceedings can be determined on the papers.
DETERMINATION
Mrs Edwards seeks to recover from the insurer expenses she incurred replacing clothing destroyed in the course of her receiving treatment for injuries she suffered in the accident. She disputes the insurer’s denial of liability to reimburse her for these expenses.
Mrs Edwards says (and I accept) that she was told by hospital staff that the expenses associated with the destroyed clothing would be covered by “Third Party”.
In written submissions lodged with the application to the Commission, and in oral submissions, Mr Edwards argued that the destruction of clothing was part of normal medical treatment as it was performed by medical staff as initial treatment to allow them to carry out preliminary investigations, and allow for x-rays and scans. It was argued on behalf of Mrs Edwards that the expenses associated with replacing the damaged clothing should be recoverable under “third party CTP coverage”. It was also argued that unless there is a specific exclusion, there was a “grey area”, and that the “benefit of the doubt should be with [Mrs Edwards].”
The insurer argues that, based on s 3.24 and the definition of “treatment and care” in the MAI Act, the cost of clothing expenses “is not a supported item as defined as ‘treatment and care’ in relation to a statutory benefits entitlement”.
In my view, there is no “grey area”. The expenses claimed by Mrs Edwards do not fall within the definition of “treatment and care”. Accordingly, they are not recoverable under Div 3.4 of the MAI Act.
Further, there are no provisions in Part 3 of the MAI Act that provide for the recovery of expenses incurred replacing clothing destroyed or damaged as a result of a motor accident. There is, for example, no equivalent provision in the MAI Act to s 75 of the Workers Compensation Act 1987.
I am satisfied, and I find, that the insurer is not liable for the claimed expenses incurred by Mrs Edwards to replace destroyed clothing.
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