Ellis v AAI Limited t/as GIO
[2025] NSWPIC 162
•22 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ellis v AAI Limited t/as GIO [2025] NSWPIC 162 |
| CLAIMANT: | Justina Ellis |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 22 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute under Schedule 2, clause 3(n); whether there is any liability for the services in dispute on the basis they meet definition of “treatment and care”; claimant alleges psychological injury, exacerbation of eating disorder and misophonia; claim for renovations to bathroom, kitchen and soundproofing; Held – renovations do not constitute everyday tasks; renovations designed to alleviate or address limitations allegedly caused by the accident constitute “home modifications” within the definition of “treatment and care”; whether renovations relate to the injury caused by the accident or are reasonable and necessary in the circumstances are medical assessment matters. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36 of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. The following constitute home modifications within the meaning of the definition of treatment and care in s 1.4 of the Motor Accident Injuries Act 2017: · bathroom – renovation of existing bathtub and placement of walk in shower; · bedroom – sound proofing against one wall which is directly next to the apartment block lift involving the installation of a built-in wardrobe; and · kitchen – modification to layout to enable easier movement and a safer environment for cooking. |
STATEMENT OF REASONS
INTRODUCTION
Ms Justina Ellis (the claimant) sustained injury in a motor vehicle accident on 29 September 2023.
Significantly, for the purposes of this application Ms Ellis asserts the accident has caused her to develop post-traumatic stress disorder, generalised anxiety, depression and an exacerbation of her pre-existing eating disorder. She also asserts she has developed misophonia caused by the noise of the lift in her building which is a trigger for her psychological illness.
AAI Limited trading as GIO is the relevant insurer with liability to pay statutory benefits to the claimant under the Motor Accident Injuries Act, 2017 (MAI Act).
On 13 February 2025 the claimant wrote to the insurer requesting that it approve renovations to her home in the total sum of $150,217 including:
· bathroom – renovation of existing bathtub and placement of walk in shower;
· bedroom – sound proofing against one wall which is directly next to the apartment block lift involving the installation of a built-in wardrobe, and
· kitchen – modification to layout to enable easier movement and a safer environment for cooking.
On 18 February 2025 the insurer declined to approve the renovations where they were not an “everyday task” and did not meet s 3.24 of the MAI Act.
On 19 February 2025 Ms Ellis requested an internal review of that decision.
On 4 March 2025 the insurer affirmed the decision, that is, that the requested home modifications did not fall within the definition of “treatment and care”.
The claimant filed an application in the Personal Injury Commission (Commission) on 10 March 2025 under Schedule 2, cl 3(n) of the MAI Act.
The dispute has been referred to me as a miscellaneous claims dispute under Schedule 2 cl 3(n) of the MAI Act where there is a preliminary dispute as to the liability for statutory benefits, that is, whether there is any liability for the services in dispute on the basis they meet the definition of “treatment and care”.
Pursuant to Schedule 2, cl 3 of the MAI Act, various matters are declared to be miscellaneous claims assessment matters including:
“(n) any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified…”
Section 1.4 of the MAI Act provides 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;
(i) education and vocational training;
(j) home and transport modification;
(k) workplace and educational facility modifications, and
(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.
Section 1.4 of the MAI Act defines attendant care services as meaning “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
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,
(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 dispute to be determined by me will be:
(a) whether the renovation services can be considered “attendant care services” under s 1.4(f) of the MAI Act noting that “attendant care services” are defined as a service that aims to provide assistance to people with everyday tasks; and/or
(b) whether the renovation services meet the definition of home modification under s 1.4(j) of the MAI Act.
In her application the claimant states the need for the home renovations arose post-accident due to her diagnosis of post-traumatic stress disorder, being ostracised from her friends, severe weight loss, the torment of misophonia, mobility issues resulting from weight loss and social isolation. Ms Ellis also referenced a loss of independence living in her apartment, anxiety about falling out of the bath and her inability to cook safely in her kitchen. She states the sound of the lift triggers the misophonia.
THE EVIDENCE
On 10 March 2025 the claimant uploaded a bundle of documents paginated from page 1 to page 23. On 25 March 2025 the insurer provided a bundle of documents paginated from page 1 to page 119.
Application for personal injury benefits re accident
In the Application for personal injury benefits dated 4 October 2023 the claimant reported she was working as a Group Administrator (Life Insurance) with TAL. She described her injury as follows:
“Following impact, I was experiencing acute pain to the upper side of my left ribcage and a stiff tender neck when turning head to the left. I attended Emergency at the hospital the next day where I was there for over 4 hours. X-rays were undertaken which confirmed a rib fracture and a muscular strain to neck from the incident. I was referred for review by my GP in 2-3 business days and for pain relief.”
The claimant disclosed her earlier claim arising out of an accident on 1 June 2014. She disclosed the following illness or injury affecting the same or similar parts of her body at the time of the accident:
“Anorexia Nervosa/Eating disorder which resulted in significant weight loss. This pre-positioned me to higher anxiety/stress which has been highly exacerbated from the incident.
2014 – Was hit by a car as a pedestrian causing significant trauma. The impact of recent collision has caused uncomfortable memories and an element of PTSD.”
Application for personal injury benefits re accident 1 June 2014 (2014 accident)
In the Application for personal injury benefits dated 16 July 2014 the claimant listed her injuries from the 2014 accident as follows:
“Head injuries (brain), facial fractures, spinal fractures, rib fractures, right shoulder & forearm fractures, hip fractures, bilateral lower leg laceration, punctured lung”.
Royal North Shore Hospital
The Discharge Summary dated 30 September 2023 noted the claimant’s physical examination was reassuring, apart from focal tenderness in the left anterior axillary line at the level of rib 3-4, and mild tenderness at the origin of the right sternocleodomastoid muscle. A chest X-ray was reported to show features consistent with old rib fractures in the context of the multi-trauma in 2014 where she sustained bilateral rib fractures with a right flail chest.
Dr Julian Campbell, Royal North Shore Hospital
In a Certificate of capacity/certificate of fitness dated 30 September 2023 Dr Campbell diagnosed a rib fracture, and neck muscular strain. He noted the claimant had anorexia nervosa predisposing her to osteoporosis and an increased risk of fractures.
Dr Robert Micallef, general practitioner
In a Certificate of capacity/certificate of fitness dated 4 October 2023 Dr Micallef recorded the following diagnosis:
“…cervical and chest wall injuries soft tissue but fracture not yet totally excluded, clinically fractured rib, element of PTSD.”
Karen Calvert, psychologist
Ms Calvert provided a report dated 7 January 2025. She reported Ms Ellis had attended sessions for psychological assistance since March 2024 to address her anxiety and depression. She diagnosed generalised anxiety, depression, eating disorder and post-traumatic stress disorder although her report suggests she had merely adopted those diagnoses on the basis they had been diagnosed previously by other health professionals.
Ms Calvert reported the claimant had sustained a significant accident in 2014 which resulted in a brain injury and cognitive deficit. Since then, she had undertaken four employment roles and was struggling in a fifth role at the time of the accident. She reported the accident exacerbated the claimant’s mental health symptoms. She reported significant anxiety, ruminative and obsessive thinking, constant low mood and ongoing suicidality. She reported Ms Ellis had lost her connections and was socially withdrawn and isolated. She reported Ms Ellis was able to manage her diabetes symptoms but had not engaged in treatment for her eating disorder and had not seen her GP for a medication review and nor had she engaged with her endocrinologist.
Ms Calvert reported given the complexity of the mental health diagnoses she considered the counselling process provided support and helped Ms Ellis to manage her stress and anxiety.
She reported Ms Ellis was significantly underweight due to an eating disorder.
On 25 February 2025 Ms Calvert reported Ms Ellis has complex mental health issues with post-trauma symptoms including loss of confidence, significant anxiety and resulting social isolation. She stated those symptoms intersected with an eating disorder, namely Anorexia Nervosa which has resulted in very low body weight.
Ms Calvert reported Ms Ellis reports breathing difficulty on exertion, poor physical fitness and strength, low flexibility and joint pain. She also reported misophonia, which Ms Calvert described as a phobia of specific trigger sounds, in this case, the noise the lift makes as it moves up and down the building. Ms Calvert stated the misophonia contributed to the claimant’s anxiety and low mood.
Ms Calvert reported modifications to the claimant’s home including access in the kitchen, modifications to shower access and soundproofing may be beneficial for the claimant’s mental health.
Ms Calvert reported the claimant’s mobility issues make it difficult for her to use the appliances in her kitchen where she is required to bend to ground level and to reach above shoulder height to access cupboards and her microwave. She also reported the kitchen contains “dead space” above and between cupboards and appliances which allows noise to filter in.
Ms Calvert reported Ms Ellis described the layout of her bathroom as difficult to manage where she is required to step over and into a bath to shower. Due to her [poor] strength and balance she reported the claimant feels unsafe and experiences anxiety about the fear of falling.
Dr Robert Micallef, general practitioner
In a certificate dated 10 February 2025 Dr Micallef reported the claimant may benefit from some modifications to her house to assist with her physical and mental wellbeing. He noted that renovations to her kitchen and bathroom would make it more accessible and would assist her emotional wellbeing.
Medico-legal reports
Dr Andrew Keller, occupational physician
Dr Keller assessed the claimant at the request of the insurer and provided a report dated 12 December 2024. Dr Keller reported following the accident Ms Ellis was able to stand and walk at the scene. He reported she was aware of chest and neck pain. She saw a doctor at Royal North Short Hospital the following day. A chest X-ray showed old right sided rib fractures. A neck X-ray was normal.
He reported Ms Ellis returned to work in December 2023 working eight hours a day three days a week. She upgraded to eight hours a day four days a week but after a week was certified unfit for work and has been unfit to date.
In the 2014 accident Dr Keller reported Ms Ellis sustained a fractured right pelvis, facial fractures, left and right rib fractures with pneumothoraxes, T6 transverse process fracture, T11 endplate fracture, L5 transverse process fracture, multiple leg lacerations, dilated right pupil and a severe traumatic brain injury. She returned to work in 2015.
Dr Keller noted the claimant had insulin dependent diabetes from 18 years of age. He also reported past mental health treatment for body dysmorphia after the 2014 accident. He reported treatment finished around 2021. He notes she vapes constantly and has 21 alcoholic drinks per week.
Dr Keller reported Ms Ellis complains of fatigue but no pain. Her self-stated capacities included:
· sitting – unrestricted;
· standing – 5 to 10 minutes;
· walking – 10 minutes;
· lifting – 3 to 5kg, and
· driving – manual car up to 10 minutes.
Dr Keller reported Ms Ellis was independent in self-care and could do limited cleaning. She had suffered some falls at home. Dr Keller reported the claimant’s weight was 42kg and her height was 180cm although before the accident she weighed 49 to 50kg.
Dr Keller examined the claimant and concluded any abnormalities were accounted for by the 2014 injuries. He concluded she had no new physical conditions relating to the accident. He diagnosed a soft tissue strain to the left chest which had resolved. He thought the claimant’s disabilities may relate to a psychological condition.
Dr Inglis (Howe) Synnott, psychiatrist
Dr Synnott assessed the claimant at the request of the insurer on 24 February 2025 and issued a report dated 26 February 2025. Dr Synott reported Ms Ellis was a rambling and circumlocutive historian; she was vague on details, and he felt he could not have confidence in the accuracy of her account.
Dr Synnott reported Ms Ellis described the following symptoms:
· depression;
· thoughts of suicide;
· disturbed sleep;
· nightmares and flashbacks about both 2014 and 2023 accidents;
· upset by reminders/cues (TV programs about motor vehicle accidents);
· anxiety and nervousness;
· impaired concentration and memory;
· loss of motivation and interest;
· social withdrawal;
· irritability;
· loss of appetite;
· excessive alcohol consumption;
· anxious/apprehensive driving a car;
· loss of hope, feeling overwhelmed, and
· mobility issues due to weight loss the result of a flare up of her eating disorder.
He reported she continued to consult a psychologist but had not consulted a psychiatrist. She undertook a brief trial of anti-depressants but suffered side effects so stopped.
Dr Synott reported Ms Ellis described “moaning all day” due to the noise attributed to the lift well next to her unit.
Dr Synott reported Ms Ellis was diagnosed with post-traumatic stress disorder following the 2014 accident, although she reported the symptoms settled by about 2017. In about 2021 she developed an eating disorder and was hospitalised for about four weeks. He reported in the five years before the accident she was employed for about 75% of the time.
Dr Synnott reported Ms Ellis presented as agitated/anxious and psychologically fragile. Dr Synnott diagnosed an adjustment disorder with anxiety and depressed mood. He noted she was vulnerable and far more predisposed to further psychiatric difficulties having regard to the significant injuries sustained in the 2014 accident, her pre-accident psychiatric difficulties and her current living arrangement.
Other evidence
JSR Builders
A quotation from JSR Builders dated 7 February 2025 in the sum of $127,930 to carry out the following work:
· kitchen renovation;
· main bathroom renovation;
· built in wardrobe including a full carcass built-in;
· carpentry;
· electrical work;
· flooring including tiling and the installation of new carpet to the living room and bedroom;
· window coverings, namely new roller blinds throughout, and
· internal painting.
A quotation from JSR Builders in the sum of $22,287.10 is in respect of the provision of the following:
· kitchen fittings including a Miele electric oven, Miele microwave oven, Miele induction cooktop, Miele extractor fan; Miele dishwasher; Miele integrated fridge; sink and mixer tap;
· bathroom fittings including wall tiles, floor tiles; floor waste, floor grate, floor drain, toilet; concealed cistern; toilet suite flush plate; wall basin, plug and waste, tap, toilet, shower hardware and glass screen;
· electrical fittings, and
· paint.
Email from Mike Ellis
Mr Ellis, the claimant’s father provided a statement by email dated 4 March 2025. He addressed his concern for his daughter and noted he and his wife resided in the United Kingdom.
He suggested since the accident in 2023 Ms Ellis had found it necessary to take unpaid leave from her workplace and had become ostracised by her friends. He reported she had now been diagnosed with post-traumatic stress disorder and misophonia. He suggested the installation of a suitable shower would mitigate the risks of his daughter falling and sustaining injury due to her physical condition. He also suggested that sound proofing was important to reduce noise created by the lift which had become a problem since the 2023 accident. He also suggested changes to the kitchen would assist Ms Ellis cook for herself and provide an overall sense of improved independence.
SUBMISSIONS
Claimant’s submissions
The claimant’s submissions are as set out in her email to the insurer dated 13 February 2025. She stated the renovations were for the benefit of her mental health and to increase her accessibility given her mobility issues. Ms Ellis stated the structural changes in the bathroom include the removal of an existing bathtub and the installation of a walk-in shower. The kitchen renovations will assist with movement and promote a safer environment for cooking. She submitted the renovation will include sound proofing to minimise the noise from the apartment block lift which is next to one of her walls. Ms Ellis states the noise of the lift promotes anxiety/stress related to her misophonia. Ms Ellis states the renovations have been supported by her general practitioner and her psychologist.
Ms Ellis requested an internal review of the insurer’s decision to decline liability for the renovations on 19 February 2025. In support of the review Ms Ellis stated:
“I am suffering from numerous health concerns and struggling to survive. PTSD is impacting my daily life significantly which includes misophonia where the noise of the apartment block lift continuously triggers stress/anxiety. The apartment renovation includes sound proofing to prevent this. Physically, I have mobility problems where I have difficulty having a shower each day from having to get into a bathtub. There has been a couple of instances where I have almost fallen out of the bath from tripping. From the age and unreliability of the kitchen, I refrain from cooking and have meals delivered. The layout is also restrictive which only gives trouble to my movement and related limitations. Furthermore, I am severely underweight where my weight had dropped further which is concerning given, I am already at risk of dropping dead (weight being 38.7kg, Height 5’10”). For the hope of any improvement in my medical predicament, the renovation certainly needs to occur. My builders recommend the scope and aspects of the design of the renovations which has provided confidence that this will best benefit my living requirements for the rest of my life and greatly improve my circumstances.”
Insurer’s submissions
The insurer provided submissions dated 25 March 2025. The insurer submits the requested renovations do not meet the definition of “treatment and care” and are not compensable as a statutory benefit expense.
The insurer submits the claimant alleges as a result of the accident she suffered shock, chest pain and a soft tissue injury to her cervical spine. The Royal North Shore Hospital detected a rib fracture but determined it was related to the earlier accident.
The insurer refers to s 1.4 of the MAI Act and notes the definition of attendant care services states they are services that aim to provide assistance to people with everyday tasks, for example, personal assistance, nursing, home maintenance and domestic services.
The insurer notes an “everyday task” is not defined in the MAI Act. However, the insurer refers to the iCare CTP Care Activities of Daily Living Assessment Practice Guide which provides examples of what attendant care services may include, for example, cleaning and similar tasks involved in the everyday operation and maintenance of a household, routine home maintenance and gardening and vehicle washing. The insurer submits the home renovations sought by the claimant are not everyday tasks within the meaning of “attendant care services”.
The insurer refers to the decision of BLI v Allianz Australia Insurance Limited[1] where Member Cassidy found that painting the exterior of a weatherboard home was a form of home maintenance. However, she was not satisfied that it was an everyday task. The insurer notes the services requested by the claimant:
· are substantive in nature and will take a large amount of time to complete;
· involve significant expense and unusual expenditure;
· are a one off, and
· would not have been completed by the claimant but for the accident.
[1] BLI v Allianz Australia Insurance Limited [2024] NSWPIC 436 (BLI).
As to whether the renovations fall under “home modifications” the insurer relies upon the decision of Warner v Insurance Australia Limited trading as NRMA Insurance[2] where the Review Panel stated:
“51.Section 3.24 provides that an injured person is entitled to statutory benefits for expenses incurred in providing treatment and care ‘for the injured person’. Section 1.4 defines treatment and care to include ‘home and transport modification’. When those two sections are read together, the Panel is of the view that Mr Warner is entitled to statutory benefits for the provision of home modifications undertaken for him to alleviate or address physical limitations and restrictions caused by his injuries.
52. Statutory benefits for modifying a home ‘for an injured person’ would usually cover the provision of grab rails in bathrooms or ramps at the front or back door to improve accessibility to an existing home. Home modifications are undertaken because of and for the injured person’s injuries. Completing renovations commenced before the accident but which were unable to be completed because the claimant could not do so is not, in the Panel’s view treating the claimant’s injuries or providing treatment for him and his injuries.
53.…
54. The Panel is therefore of the view that the dispute between Mr Warner and his insurer about ‘home modifications’ listed by the claimant is not a dispute about treatment and therefore not a medical assessment matter declared as such under Schedule 2(1). Medical Assessor Harrington and this Panel therefore have no power to determine the dispute.”
[2] Warner v Insurance Australia Limited trading as NRMA Insurance [2023] NSWPICMP 334 (Warner).
TELECONFERENCE ON 7 APRIL 2025
Ms Ellis joined the teleconference by MS Teams. Ms Gazdag appeared for the insurer.
Ms Ellis advised the renovations had not been completed because she had to wait for strata approval. However, she hoped to move to unit 5 in the next week or so to enable the renovations to proceed.
Ms Ellis confirmed she had sustained serious injury including a traumatic brain injury in an earlier 2014 accident. However, she stated she overcame those adversities over time and had returned to work. She was working with TAL at the time of the accident.
Ms Ellis stated she has mobility issues and misophonia. She advised she now weighs only 38.5kg which was apparent on the screen. Her loss of mobility is due to her eating disorder and her apparent frailty. Ms Ellis stated she has been diagnosed with post-traumatic stress disorder by her treating psychologist Ms Calvert and her general practitioner. She is on a waiting list to see Dr Patricia Jungfer, psychiatrist who she consulted in 2017 and with whom she felt a connection. Ms Ellis stated since the 2023 accident she has experienced flashbacks, sleeplessness and recall of the 2014 accident. Ms Ellis said a trigger for her anxiety and psychological symptoms was the misophonia caused by noise from the lift. She stated she had received treatment from her psychologist for the misophonia.
Ms Ellis conveyed the distress caused by the misophonia. She stated each day she tries to escape the noise by going for a drive and sitting in her car although generally she does not wish to go out. She said she is now very isolated. Her parents are in the United Kingdom and her friends have dropped away.
I noted Ms Ellis purchased the apartment in the last 12 months although she has lived there for five or six years. I asked her why she purchased the apartment noting she had misophonia. She stated firstly, the misophonia was not as severe as it is now, secondly, she was encouraged to do so by her doctor and parents and thirdly, whilst she would not describe them as friends she has a supportive network with other residents in the building.
Ms Ellis conceded she suffered from the eating disorder before the accident, but she had improved as evidenced by her ability to return to work. However, the eating disorder has worsened since the accident.
Ms Ellis alleges she has mobility issues which have led her to fall several times getting out of the shower (which is apparently over the bath) and in accessing the cupboards and facilities in the kitchen. The bathroom renovation is required to enable a walk-in shower to be installed.
I indicated my preliminary view was that the renovations would not be considered attendant care services where the renovations would not constitute a service that provides assistance with everyday tasks.
Ms Ellis indicated she would consider accepting part payment towards the renovations, maybe just the soundproofing in the bedroom, where the noise of the lift is a serious trigger for her anxiety. I indicated my preliminary view was that the soundproofing might come within the definition of home modification.
Ms Gazdag indicated she was prepared to seek further instructions from the insurer to see if they were prepared to contribute to the cost of the renovation in part.
I adjourned the matter until 17 April 2025 to enable the insurer to obtain further instructions.
On 9 April 2025 Ms Gazdag for the insurer uploaded a message to the portal stating she was instructed to maintain that the “services” requested by the claimant are not treatment and care expenses under the MAI Act.
TELECONFERENCE ON 17 APRIL 2025
Ms Ellis joined the teleconference by MS Teams. Ms Gazdag appeared for the insurer, also by MS Teams
Ms Ellis confirmed the modification work was due to commence on 22 April 2024 and was foreshadowed to take 12 weeks.
I informed Ms Ellis that the insurer was not prepared to offer a sum of money towards the cost of the soundproofing even if she agreed to abandon her claim for the kitchen and bathroom renovations.
I informed Ms Ellis that I was only required to determine whether the kitchen and bathroom renovations and sound proofing came within the definition of treatment in s1.4 of the MAI Act. I indicated my preliminary view was that the renovations proposed were not attendant care services but that they were home modifications.
However, as I explained to Ms Ellis that does not finalise the dispute. I informed Ms Ellis she would need to lodge an application for medical assessment with the Commission. That application will be to determine if the proposed home renovations were related to the injury resulting from the accident and if they were reasonable and necessary in the circumstances. I explained to Ms Ellis that where the need for the renovations relates to both physical and psychological injuries it is likely the Commission would arrange assessments with both a psychiatrist and a doctor qualified to assess the physical injury. This process is likely to take some time.
I also informed Ms Ellis, that whilst my role is not to provide legal advice, I was uncertain on the available medical evidence whether she would succeed on any application for medical assessment. I note Ms Ellis does not have any medical evidence to establish causation, that is, that her current conditions including the misophonia were caused by the accident. This is significant in light of the significant injuries sustained in the 2014 accident and her pre-existing eating disorder. Ms Ellis asserts that her weight loss is not caused by an eating disorder but by her anxiety.
Ms Ellis despairingly informed me of her attempts to see a psychiatrist. She is still on a waiting list to see Dr Jungfer, although she has been advised that her books are closed. She attended the rooms of Dr David Hall to see if she could get an early appointment. She was advised to get a referral to Dr Hall but was subsequently advised that his books were closed. In all, Ms Ellis says she has attempted to see about five psychiatrists without success. Whilst she indicated her condition was dire, she said she was unable to present to a hospital for treatment because she finds hospitals act as a trigger for her symptoms.
Ms Gazdag informed me that Mr Stephen Firth, lawyer acts for Ms Ellis in respect of her common law claim. There is also an ongoing dispute as to threshold injury. I recommended she take a copy of my decision to Mr Firth so he can assist her with this dispute. If Mr Firth is going to arrange a medical assessment, he could also request expert opinion in relation to these treatment disputes.
Ms Ellis again pleaded with the insurer to meet the cost of the soundproofing on the basis she abandons the claim relating to the kitchen and bathroom. Ms Gazdag indicated she will obtain instructions but thought it likely the insurer would maintain the dispute.
I informed the parties I will determine the dispute on the papers and make my decision available within 21 days.
DETERMINATION
In accordance with s 52(3) of the Personal Injury Commission Act, 2020 (PIC Act) and Procedural Direction PIC2 I am satisfied that sufficient information has been supplied to the Commission and I consider it appropriate to determine the matter on the papers.
Schedule 2(3)(n) of the MAI Act provides me with the power to determine “any issue of liability for a claim, or part of a claim, for statutory benefits now otherwise specified in this schedule”.
The dispute to be determined by me will be whether the renovations services meet the definition of treatment and care under s 1.4 of the MAI Act.
However, if I determine the renovation services constitute treatment and care under s 1.4 there will still be a dispute as to whether the treatment and care claimed, “is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident”. This is a medical assessment matter for determination by one or more medical assessors under Schedule 2(1)(i) of the MAI Act. This is not the dispute currently before me and if Ms Ellis wishes to pursue this dispute she will have to file an application for assessment of a treatment dispute with the Commission.
Attendant care services
Section 1.4 of the MAI Act defines attendant care services as “services that aim to provide assistance to people with everyday tasks”. Examples of everyday tasks include personal assistance, nursing, home maintenance and domestic services.
I agree with the insurer that the renovations sought by the claimant are not everyday tasks. Consistent with the decision of Member Cassidy in BLI they are substantive and will take a large amount of time to complete, in this case, 12 weeks, they involve significant expense and unusual expenditure, and they are a one off.[3]
[3] BLI v Allianz Australia Insurance Limited [2024] NSWPIC 436.
In Suttie v QBE Insurance (Australia) Limited I found the operation and maintenance of an irrigation system on a 200-acre property was an everyday task within the definition of attendance care services given that it was necessary for the provision of water for the house and garden and where by reason of her injuries Ms Suttie required assistance with those tasks.[4] However, I found that significant repairs to the irrigation system were not everyday or commonplace tasks which would have been performed by Ms Suttie had the accident not occurred and did not constitute attendant care services.
[4] Suttie v QBE Insurance (Australia) Ltd [2024] NSWPIC 355.
In Haddad v Lifetime Care and Support Authority, Member Cassidy noted that everyday tasks are not necessarily tasks that are undertaken every day but suggestion synonyms for “everyday” would include “usual, ordinary, mundane, routine or regular”.[5] The renovations proposed to the claimant’s bathroom and kitchen involve a total refurbishment of each room including the cost of fixtures and fittings. The cost is significant, as is the disruption noting Ms Ellis proposes to move out of her apartment whilst the work is undertaken.
[5] Haddad v Lifetime Care and Support Authority [2024] NSWPIC 96.
I find the proposed renovations to the bathroom, kitchen and the soundproofing are not every day or commonplace tasks and do not meet the definition of “attendant care services” under s1.4 of the MAI Act.
Home modification
The definition of treatment and care in s 1.4 of the MAI Act also includes “home and transport modification”.
The insurer referred me to the decision of a Review Panel in Warner where in the context of a medical assessment dispute a Review Panel was asked to determine [6] a treatment dispute in relation to home modifications which included finishing a partly built shed, paving and tiling. The Review Panel was required to determine whether the home modifications were reasonable and necessary in the circumstances and whether they related to the injury caused by the accident for the purposes of s 3.24 of the MAI Act.
[6] Warner v Insurance Australia Limited trading as NRMA Insurance [2023] NSWPICMP 334.
Where the proposed home modifications were not for the purposes of alleviating or addressing the physical limitations and restrictions caused by Mr Warner’s injuries the Review Panel concluded the dispute about the home modifications did not constitute a treatment dispute.
However, the decision in Warner can be distinguished where the claimant submits the home modifications proposed are designed to alleviate or address limitations and restrictions caused by the accident. I am not required to determine whether the proposed home modifications do, in fact, alleviate or address limitations and restrictions caused by the accident, noting that is a medical assessment matter, but merely whether the proposed modifications meet the definition of “treatment and care” in s1.4 of the MAI Act.
Bathroom renovation
Ms Ellis argues that as a result of her mobility problems arising from her underweight status, she has difficulty accessing her shower which is over the bathtub. She argues her mobility problems, which she alleges relate to the injury caused by the accident will be alleviated by the installation of a walk-in shower.
Ms Calvert reported Ms Ellis describes breathing difficulty on exertion, poor physical fitness and strength, low flexibility and joint pain. Significantly, I note Ms Ellis informed me her weight as of 7 April 2015 was only 38.5kg.
The bathroom renovation appears more extensive that the installation of a walk-in shower. However, I am not required to determine whether the bathroom renovation relates to the injury caused by the accident or whether it is reasonable and necessary in the circumstances but merely whether it constitutes a home modification. I find that it does constitute a home modification where it is designed to modify the claimant’s home to facilitate safe access to her shower.
Kitchen renovation
Ms Ellis argues that the kitchen renovation is required because of the age, unreliability and layout of the kitchen. Ms Ellis submits that her mobility problems, which she alleges relate to the injury caused by the accident will be alleviated by an improved kitchen layout. Given her eating disorder a kitchen which Ms Ellis can navigate safely and where she can cook may alleviate physical limitations or restrictions which she asserts have been caused by the accident.
Ms Calvert reported the claimant’s mobility issues make it difficult for her to use the appliances in the kitchen where she is alternatively required to bend to ground level or reach above shoulder height to access cupboards or her microwave. Ms Ellis alleges she had developed misophonia, which Ms Calvert described as a phobia of specific trigger sounds, in this case the sound of the lift, as a result of the accident. Ms Calvert notes the claimant seeks to remove the “dead spaces” above and between cupboards in the kitchen to limit the noise which she asserts can filter through those spaces.
Whilst it seems the kitchen renovation is more extensive than may be required in the circumstances, I am not required to determine whether it relates to the injury caused by the accident or whether it is reasonable and necessary in the circumstances but merely whether it constitutes a home modification. I find that it does constitute a home modification where it is designed to modify the claimant’s home to facilitate her ability to cook and safely access her kitchen.
Soundproofing
Ms Ellis alleges that the misophonia contributes to her anxiety and low mood. Ms Ellis seeks to soundproof her home by sound proofing the wall next to the apartment block lift and installing a built-in wardrobe along that wall. Ms Ellis conveyed to me the distress caused by the misophonia. Ms Calvert stated the misophonia contributed to the claimant’s anxiety and low mood. Ms Ellis submits the soundproofing will minimise the noise from the apartment block lift thereby alleviating a trigger for her stress and anxiety.
I also note Dr Synnott reported the claimant was psychologically fragile. He considered she was vulnerable and far more predisposed to further psychiatric difficulties, which may (this is not a matter I am required to determine) explain the development of misophonia.
I am not required to determine whether the need for sound proofing relates to the injury caused by the accident or whether it is reasonable and necessary in the circumstances but merely whether it constitutes a home modification. I find that it does constitute a home modification where it is designed to modify the claimant’s home to alleviate a trigger for her stress and anxiety.
CONCLUSION
I find the following constitute “home modifications” and come within the definition of treatment and care as defined by s1.4 of the MAI Act:
· bathroom – renovation of existing bathtub and placement of walk in shower;
· bedroom – sound proofing against one wall which is directly next to the apartment block lift involving the installation of a built-in wardrobe, and
· kitchen – modification to layout to enable easier movement and a safer environment for cooking.
Any further dispute relating to the claimant’s entitlement to statutory benefits for treatment and care will need to address s 3.24 of the MAI Act, that is, whether the home modifications relate to the injury caused by the accident and are reasonable and necessary in the circumstances. These will be medical assessment matters to be determined by a medical assessor or assessors in accordance with Division 7.5 of the MAI Act.
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