Frost v NRMA

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Frost v NRMA [2021] NSWPICMR 52
CLAIMANT:	Lillian Frost
INSURER:	NRMA
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	16 December 2021
CATCHWORDS:	MOTOR ACCIDENTS- Merit review; dispute about cost of treatment and care under Division 3.4 of the Motor Accident Injuries Act 2017; definition of treatment and care; definition of attendant care services; tasks associated with a business or commercial enterprise; whether care for livestock is treatment and care for the injured person; Held – the reviewable decision is affirmed.
DETERMINATIONS MADE:	The reviewable decision is about whether the cost of treatment and care provided to Ms Lillian Frost (the Claimant) is reasonable for the purposes of section 3.24(1)(a) of the Motor Accident Injuries Act 2017 (MAI Act), and is therefore a merit review matter under Schedule 2(1)(i) of the MAI Act. 1. The reviewable decision is: a. affirmed.

Background

There is a dispute between Lillian Frost (the Claimant) and the insurer about whether the cost of treatment and care provided to the Claimant is reasonable for the purposes of section 3.24(1)(a) of the MAI Act.
The Claimant was involved in a motor accident on 5 December 2019.
The Claimant lodged an application for statutory benefits on 13 December 2019.
The Claimant operates a business from a rural property that trains horses for sale, riding and showing.
On 21 January 2020 Ms Emma Krizaj, occupational therapist carried out an activities of daily living assessment and report in respect of the Claimant’s care needs as of 21 January 2020.
Relevant to this merit review is Ms Krizaj’s recommendation in her report dated 4 February 2020 that the Claimant be provided with hoof trimming services in respect of the horses on her property for a period of 10 weeks.
On 22 September 2020 the Claimant advised the insurer “all horses currently owned by [the Claimant] are livestock retained here on the rural property for commercial, income producing purposes, not as a hobby or as pets…” and that the insurer’s refusal to pay for hoof trimming “is a substantial economic loss” and will impact “future earnings based on [the horses’] previous and future intended use and purpose”. In response the insurer advised the Claimant that the CTP scheme also covers loss of income and listed the various documents that would be required in order to assess any entitlement to same.
On 2 October 2020 the insurer declined the claim for hoof trimming made under section 3.24 of the MAI Act in relation to treatment and care on the basis the services were related to pet care. The insurer relied on the decision of Geaghan v D’Aubert [2002] NSWCA 260 (Geaghan), which found pet care is a hobby and does not fall under attendant care. The insurer also had regard to the definition of “attendant care services” in the MAI Act and determined that pet care did not fall within the scope of that definition.
The Claimant requested an internal review of the 2 October 2020 decision.
On 11 November 2020 the insurer issued their internal review decision, affirming their original decision of 2 October 2020 that hoof trimming is declined.
The Claimant has requested a merit review of the insurer’s 11 November 2020 internal review decision.

Submissions

The Claimant submits the insurer:
(a)   Does not understand the expert nature of hoof trimming.
(b)   Failed to provide adequate reasons in relation to sections of legislation and the Geaghan.
(c)   Had regard to a “redundant” Clinical Framework for the Delivery of Health Services.
(d)   Made various errors in relation to dates and her claim number.
(e)   Is required to pay for hoof trimming under section 3.31(3) of the MAI Act given there was previous approval.
(f) Is in contravention of clause 12.0 of the Medical Guidelines for treatment, rehabilitation and attendant care services and payments by declining to pay the costs of hoof trimming.

The insurer submits hoof trimming is categorised as pet care and relies on Geaghan and the definition of attendant care services in the MAI Act as excluding such services from treatment and care.

Reasons

Issues

There are two issues in this case as follows, the first issue being the threshold issue:
(a) Whether hoof trimming is “treatment and care” for the purpose of section 3.24 of the MAI Act?
(b) If so, whether the costs of hoof trimming are reasonable and necessary in the circumstances.

Legislation

Relevantly, pursuant to section 3.24 of the MAI Act:
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)…
.
(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.
(emphasis added)
The threshold question is whether hoof trimming is “treatment and care” for the purpose of section 3.24(1)(a). Hoof trimming must be considered “treatment and care” to fall within the scope of section 3.24(1)(a).
“Treatment and care” is defined in section 1.4 of the MAI Act 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,
(i) 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.
Hoof trimming can only fall under attendant care services in the definition of treatment and care, if at all.
Section 1.4 provides that “attendant care services” means “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services” (emphasis added).
Of note, section 3.26 deals with the provision of domestic services to third parties where an injured person has lost the capacity to provide services to a third party, which were provided before the accident on a gratuitous basis. Section 3.26 is specific, however, in limiting the scope of such benefits to circumstances where the services were provided to dependents of the injured person. It has no application in this case as the services in question are not for the Claimant’s dependents but for the Claimant’s horse training business. However, the inclusion of section 3.26 in the MAI Act provides some assistance in the statutory interpretation process, as discussed below.

What is the purpose of hoof trimming?

In order to determine whether hoof trimming services are attendant care services within the meaning of the MAI Act it is necessary to determine for what purpose the services are being provided and to whom.
The Claimant confirmed:
(a)   The horses on her property are owned by her for the “purposes of commercial activities, including training and sales” and are for “income producing purposes”.
(b)   Prior to the accident she had completed appropriate hoof trimming training and was responsible for carrying out hoof trimming on her horses as part of her commercial enterprise.
(c)   Due to the specialist nature of the task she is unable to arrange hoof trimming on a gratuitous basis by a friend or family member.
(d)   Prior to the accident she had begun to establish her horse training business and her services had been engaged on a number of occasions.
(e)   Hoof trimming services are directly related to “financial gain” from her horse training business. She says the services “is one that [she] was able to perform pre-accident and its specialist nature prevents family members from performing the service”.
Accordingly, it is clear that the services are for the Claimant’s business as part of the business tasks required for the business to produce income.

Is hoof trimming attendant care services?

Whether hoof trimming is attendant care services is to be determined by interpreting the relevant legislation in the context that hoof trimming is for livestock kept by the Claimant for income producing purposes.
A fundamental principle of statutory interpretation is that the Act is to be construed as a whole. As the High Court said in Project Blue Sky v Australian Broadcasting Authority
(S41-1997) [1998] HCA 28 (at [69]):
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.”
In other words, you cannot construe the meaning of a specific provision in an Act without considering the sections which surround it, and the structure and meaning of the Act as a whole. The Act should be construed so as to operate coherently, consistently, and harmoniously, as a whole.
The second reading speech in respect of the MAI Act gives guidance on the purpose of the MAI Act. It is noted in the second reading that the purpose of the MAI Act is to:
(a) Ensure people genuinely injured in road accidents receive timely access to the appropriate treatment and rehabilitation to assist their recovery.
(b) Ensure injured persons, even if they are the at fault driver, have access to at least six months of income support and medical treatment under the no‑fault statutory scheme.
It can be inferred from this that the intention of section 3.24 of the MAI Act is to meet payment of medical treatment and traditional attendant care services such as personal, domestic and nursing assistance.
The objects of the MAI Act are set out in section 1.3 and relevantly include that the object is “to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities”.
Again, this suggests section 3.24 is designed to cover expenses for treatment and care for injured persons to directly address their injuries. The intention of section 3.24 is to assist in the Claimant’s recovery so that she is able to return to work, including hoof trimming, in a timely manner. It is not the intention of section 3.24 to arrange, through payment, for the Claimant’s work to be done in the meantime whilst she recovers. If payments were made to claimants to arrange someone to do their work for them in their business or other commercial enterprise, it would likely not assist in maximising their return to work as there would be less incentive for them to do so. This goes against the object of the MAI Act
This intention is supported by the wording of section 3.24 of the MAI Act, which provides that the Claimant is entitled to statutory benefits for treatment and care expenses incurred in connection with providing treatment and care for the injured person. In other words, the care is to be “for” the Claimant personally and not for her livestock, her business or commercial enterprise or for a third party.
The definition of attendant care services similarly limits the scope of treatment and care to assistance with “everyday tasks”. The examples provided in the definition fall into the category of personal assistance, home maintenance and domestic services. It can be inferred from this that section 3.24 contemplates attendant care services of a personal or domestic kind and not services in connection with or for the purpose of a commercial or business enterprise. Everyday tasks are, for example, cooking, cleaning, bathing, dressing, gardening and shopping. They are the tasks people do every day in life generally, as distinct from the tasks they do for work, in business or as part of some other commercial enterprise.
Where words in a statute are not defined, they are to be given their ordinary meaning. “Care” in the context of illness or injury ordinarily means the provision of what is necessary for the health, welfare, maintenance, and protection of the ill or injured person.
Having regard to these considerations, hoof trimming in respect of livestock kept for commercial purposes is not a service necessary for the health, welfare, maintenance or protection of the Claimant. It is not personal or domestic assistance for the Claimant. It is not part of home (as in residential) maintenance. Rather, it is a service necessary for the Claimant’s business.
Hoof trimming is not an “everyday task”. The Claimant suggests it should be considered in context that is, that she resides in a rural location where needs are different to those living in suburbia and in her case, she requires a hoof trimming service for her livestock. However, the Claimant’s rural location is not the reason she requires hoof trimming services. The reason is that the Claimant keeps livestock for business purposes and hoof trimming is a task required for the running of that business. What are considered “everyday tasks” for the purpose of section 3.24 is an objective test based on the ordinary person’s daily living requirements. There is a distinction between everyday tasks often referred to as the usual activities of daily living and activities or tasks performed for work, in the running of a business or in other employment or commercial enterprise. The hoof trimming falls into the latter.
In my view, it cannot be said that the provision of hoof trimming services for livestock used for income producing purposes is the provision of treatment and care “for” the Claimant. It is for her commercial enterprise and is therefore a business activity or task. If the Claimant is unable to continue to perform hoof trimming for the business and requires the services of a paid professional instead then it becomes an expense of the business.
It is not known whether the Claimant runs her business as a sole trader, a partnership or as an incorporated entity. Regardless, there are many instances in business where a sole trader, partner or company director will perform tasks required to run the business themselves rather than outsource the task to a commercial provider. For example, a truck driver might wash his own truck rather than pay someone else to do it. Many business owners do their own bookwork whilst others choose to pay for external bookkeeping services. Farmers often carry out their own harvesting work and typically attend to day-to-day care of their livestock as well as other animal husbandry tasks. Hoof trimming is part of animal husbandry and it was a matter for the Claimant as to whether she carried out this task herself as part of her commercial enterprise or whether she retained an external service provider to carry out this business task.
The mere fact the Claimant chose to complete this task herself as part of the running of her business does not characterise the task as “care for the Claimant” if she is unable to complete this task as a result of the accident. Any inability to complete this task as a result of the accident is relevant to issues such as loss of income, loss of capacity for work and in turn, whether the Claimant is entitled to weekly payments of statutory benefits under Part 3, Division 3.3 of the MAI Act. However, a claim under Part 3, Division 3.3 is not the subject of this merit review application, which is limited to whether hoof trimming is treatment and care for the purpose of section 3.24.
Provision of services for a business is akin to provision of services for a third party. As noted, the MAI Act limits circumstances in which statutory benefits are payable for provision of services to a third party to circumstances of the provision of services to dependents. There is no scope in the MAI Act, in so far as statutory benefits for treatment and care is concerned, for the Claimant to be compensated for ongoing business expenses such as hoof trimming even if she carried out this task herself for the business prior to the accident. It may be that the Claimant is entitled to weekly payments of statutory benefits under Part 3, Division 3.3, which would assist her with business upkeep, including hoof trimming but that is a separate issue which is not the subject of this merit review.
In so far as the matters specifically raised by the Claimant in her submissions are concerned:
(a)   That the insurer does not understand the expert nature of hoof trimming: This is irrelevant to a determination of whether hoof trimming is “treatment and care” for the purpose of section 3.24 of the MAI Act. Regardless of the specialised nature of the work it is a service required for the Claimant’s commercial enterprise and not to treat or care for her injuries.
(b)   That the insurer failed to provide adequate reasons in relation to sections of legislation and Geaghan: A failure to provide adequate reasons is not a relevant consideration for the purpose of a merit review. As the merit reviewer my role is to reconsider the facts, law and policy aspects of the original decision and determine what is the correct and preferable decision regardless of the insurer’s reasons. Geaghan has limited application to this matter as it relates to gratuitous care. However, what can be taken from Geaghan is that:
(i)the relevant caselaw generally accepts that attendant care services relates to traditional domestic care at home, in the garden and shopping;
(ii)attendant care does not extend to the care of domestic pets or the retention of a hobby. It follows that it also does not extend to the care of livestock kept for commercial purposes as that is a matter which relates to loss of income;
(iii)it is necessary to recognise the proper limits of attendant care services;
(iv)any consideration of an extension of the categories of needs for attendant care should be carefully evaluated. If attendant care does not extend to an injured person’s hobby, then it certainly does not extend to an injured person’s commercial enterprise. The activities or tasks involved in carrying out a commercial enterprise are not “everyday tasks” and therefore not covered by the definition of attendant care services.
(c)   That the insurer had regard to a “redundant” Clinical Framework for the Delivery of Health Services”: This framework is not redundant but is a framework which health professionals should apply when providing treatment. However, it has no relevance to whether hoof trimming is treatment and care.
(d)   That the insurer made various errors in relation to dates and her claim number: It is unclear precisely what errors are said to have been made but, in any event, errors of this nature do not alter my decision above.
(e)   That the insurer is required to pay for hoof trimming under section 3.31(3) of the MAI Act: Section 3.31 effectively provides that nothing in the relevant Division in the MAI Act prevents an insurer from choosing to pay treatment and care expenses that it is not legally required to pay under the MAI Act. In other words, it gives the insurer a discretion to pay expenses not covered by the MAI Act. There is no requirement that the insurer continue to pay non-mandatory expenses if it has initially exercised the discretion in the Claimant’s favour. The insurer has a discretion to pay non-mandatory expenses and also a discretion to cease such payments.
(f) That the insurer is in contravention of clause 12.0 of the Medical Guidelines for treatment, rehabilitation and attendant care services and payments: This Guideline is in relation to the Motor Accidents Compensation Act 1999 and is not applicable to this matter which falls under the 2017 MAI Act and the Motor Accident Guidelines applicable to the MAI Act. I have considered the Motor Accident Guidelines and find no cause to alter my decision that hoof trimming is not treatment or care for the purpose of section 3.24. As I have determined that hoof trimming is not treatment or care it follows that the insurer is not in contravention of clause 12.0 of the Guideline specified by the Claimant even if it were applicable.

Having determined that hoof trimming is not treatment and care for the purpose of section 3.24 of the MAI Act it is not necessary for me to consider the second issue identified above regarding whether the costs of hoof trimming are reasonable and necessary. However, I note Ms Krizaj recommended hoof trimming for a closed 10-week period. That period expired in or about March/April 2020.
There is no updated medical evidence to support a contention the Claimant required hoof trimming beyond the 10 weeks recommended by Ms Krizaj and/or that she remains unable to return to the task of hoof trimming. As the medical evidence is all out of date there is insufficient evidence to establish a current incapacity to carry out hoof trimming. In this context, I would not consider hoof trimming expenses to be reasonable or necessary, even if they did fall under section 3.24 of the Act.

Conclusion

Hoof trimming is a service required for the Claimant’s commercial enterprise and is not treatment and care for the purpose of section 3.24 of the MAI Act. As such, the insurer is not required to meet the costs of hoof trimming.
Accordingly, the reviewable decision is:
(a) affirmed.

Legislation and Guidelines

In making this decision, I have considered the following:
· The Application, Reply and supporting documentation;
· Motor Accident Injuries Act 2017 (NSW);

· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.

Katherine Ruschen
Merit Reviewer

Personal Injury Commission

[2021] NSWPICMR 52

16 December 2021