Haddad v Lifetime Care and Support Authority (CTP Care)
[2024] NSWPIC 96
•3 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Haddad v Lifetime Care and Support Authority (CTP Care) [2024] NSWPIC 96 |
| CLAIMANT: | Elias Haddad |
| INSURER: | Lifetime Care and Support Authority of New South Wales |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 3 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about whether painting services are “treatment and care” within section 1.4; claimant asked insurer to fund painting the interior and exterior of his home as he could not because of his injuries; insurer refused on the basis that painting the whole house is not “home modification” or “attendant care services” and does not come within the definition of treatment and care; insurer agreed that but for the accident the claimant would likely have painted his own home and that the claimant’s injuries prevent him from painting the house himself; Held – painting the interior and exterior of the claimant’s home is not an everyday task in terms of something that is usual or routine or common place; it is a project or major endeavour; the painting services claimed are not a statutory benefit to which the claimant is entitled. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 (the Act), the Commission’s assessment is: 1. The painting services claimed by Elias Haddad are not “treatment and care” as defined in s 1.4 of the Act. 2. The Lifetime Care and Support Authority is not liable under s 3.24 of the Act to pay for the claimed painting services in Mr Haddad’s claim for statutory benefits. |
STATEMENT OF REASONS
INTRODUCTION
Elias Haddad was involved in a motor accident on 17 November 2018. Mr Haddad was 66 years of age at the time of the accident, and he is currently 72 years of age.
Mr Haddad made a claim against NRMA for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). NRMA was, for the first five years after the accident the “relevant insurer” liable to pay Mr Haddad his statutory benefits. In accordance with s 3.2(3), the Lifetime Care and Support Authority of New South Wales, through its program CTP Care, is now the relevant insurer liable to pay Mr Haddad his statutory benefits.[1]
[1] For ease of reference, the Authority will be referred to as CTP Care throughout these reasons.
Mr Haddad requested CTP Care pay for the painting of both the exterior and the interior of his home. CTP Care rejected the request on 18 June 2024.
On 20 June 2024, the claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. CTP Care undertook the internal review and issued a decision dated 4 July 2024 confirming the original decision and denying the claim for painting services.
On 30 July 2024 the claimant referred the request for painting services to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me and I conducted a teleconference with the parties on 29 August 2024.
LEGISLATIVE FRAMEWORK
The scheme of statutory benefits
The MAI Act establishes a scheme of compulsory third party insurance for all motorists in NSW and a scheme for the payment of benefits and compensation to persons injured in motor accidents in NSW. Mr Haddad has made two claims arising out of his accident in November 2018, a claim for statutory benefits under Part 3 of the MAI Act and a claim for damages under Part 4 of the MAI Act. Mr Haddad has settled his damages claim and the claim before me is Mr Haddad’s claim for statutory benefits.
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Section 3.24(1) of the MAI Act provides that an injured person is entitled to “the reasonable cost of treatment and care” expenses “incurred in connection with providing treatment and care for the injured person.”
Treatment and care is defined 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,
(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.”
Attendant care services are also defined in s 1.4 and mean “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”.
Dispute resolution
In a statutory benefits claim, disputes can be resolved by Merit Reviewers, Medical Assessors and Members of the Commission. Schedule 2 to the MAI Act declares certain types of matters to be merit review matters, others to be medical assessment matters and other to be claims assessment matters. In the context of this dispute:
(a) Schedule 2(1)(i) permits a Merit Reviewer to determine disputes about the cost of treatment and care, and
(b) Schedule 2(2)(b) allows a Medical Assessor to determine whether any treatment and care claimed, “is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident.”
Schedule 2(3)(n) provides a Member of the Commission with power to determine “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”.
The dispute between Mr Haddad and CTP Care is not about the cost of the painting services or Mr Haddad’s medical ability or fitness to do the work. It is also not a dispute about whether the house needs to be painted. What is in dispute is whether painting services are “treatment and care” and therefore payable as a statutory benefit.
INSURER DECISION MAKING AND SUBMISSIONS
I have limited documentation about Mr Haddad’s claim or his request for painting services and I do not have a copy of the insurer’s original letter rejecting the request. However, I do not believe I would be assisted by those documents as I have, in my view, sufficient details provided by both Mr Haddad and CTP Care in the documentation they currently rely on.
Mr Haddad’s request for an internal review points out the following:
(a) as part of looking after his house, Mr Haddad painted the house when needed both inside and out;
(b) he would do it by himself and it was on his “to do list” before the accident;
(c) the accident has meant that he cannot physically do the task of painting himself;
(d) the insurer’s rehabilitation consultant had sent him a text on 26 April 2024 to tell him CTP Care had approved the plan for painting his house and the rehabilitation consultant had helped him get two quotes and then Mr Haddad obtained a third quote (which was the lowest);
(e) when he followed up with CTP Care he was told by his case manager on 19 June 2024 that the request was denied as it was not “day to day services”, and
(f) that part of his role in the home was to maintain the house and he is in no position to pay someone to paint it and he feels helpless and depressed by the state of the peeling paint and mould on the surfaces and being unable to do anything about it.
CTP Care’s internal review decision
CTP Care’s internal review decision was written by Jamie Planes. It notes the quote for internal and external house painting is $44,500 and that a subsequent quote for labour only was in the sum of $33,000.
It is acknowledged by CTP Care that before the accident Mr Haddad would paint the inside and outside of the house when needed and that he was planning to paint the home before the accident. Mr Planes also records that the claimant advised in a phone call he was a tradesman and was responsible for all maintenance tasks in and around the home, including painting, and that in the 35 years he has lived in the home he has painted it three times. Mr Haddad said he cannot do this work because of his injuries.
The insurer’s reasons for declining the painting services were:
(a) section 3.24 of the MAI Act says an injured person is entitled to statutory benefits for the reasonable cost of treatment and care provided “for the injured person”;
(b) section 1.4 defines treatment and care and includes “attendant care services” and “home modification”;
(c) the definition of “attendant care services” in s 1.4 of the Act is services to provide assistance to people with everyday tasks;
(d) house painting is not an everyday task because the house has been painted three times in 35 years, it is a home improvement, and
(e) house painting is not a home modification.
Claimant’s submissions
The claimant says in a document attached to his application form that:
(a) because of the injuries to both his shoulders caused by the accident, he has not been able to perform certain tasks;
(b) he is a mechanical engineer by trade and before the accident maintained his home on a regular basis including painting his home;
(c) his house is in desperate need of painting, and he needs painters to do it for him because he cannot do it himself;
(d) his rehabilitation consultant from Benchmark (appointed by CTP Care) visited his home to inspect the state of the home and painting and she advised she would make a request to CTP Care;
(e) CTP Care approved the painting services and requested quotes which the consultant helped him to arrange;
(f) CTP Care then declined to pay for it, and
(g) he cannot earn income as he did before the accident and has had to change things to financially survive.
Mr Haddad has provided a copy of the quote for the work which includes painting the exterior of the house ($31,000) and the interior ($13,500) inclusive of GST.
Insurer’s submissions
CTP Care identifies the issue in dispute as whether house painting is “treatment and care” within the definition in s 1.4 and submits that it is not.
CTP Care notes that s 3.24 provides for the payment of statutory benefits for expenses incurred in connection with providing treatment and care “for the injured person” and that these words are important.
CTP Care cites the definition of “treatment and care” and the list of 11 things that are part of the definition and submits that this is “an exhaustive definition” and if something claimed is not one of those 11 listed things, it is not treatment and care.
CTP Care submits that there are only two relevant options from that list – attendant care services and home modification.
In terms of attendant care services, CTP Care says that the definition requires that the services are to provide assistance with everyday tasks and the definition includes examples such as home maintenance. CTP Care notes there is no definition of “everyday tasks” and proposes that a plain English definition such as that in the Macquarie Dictionary should be adopted. The dictionary definition suggests that “everyday” is something that occurs every day or something that is ordinary or commonplace. CTP Care further suggests that everyday tasks would therefore include, commonplace tasks, routine, regular or repetitive tasks.
CTP Care refers to the case of Warwick v National Disability Insurance Agency[2] where Justice Perram decided, in a case concerning a different legislative scheme of benefits, that the cost of the person relocating home was not a day-to-day type of cost because it was an extraordinary rather than an everyday cost.
[2] [2024] FCA 616.
CTP Care submits that internal and external painting of the house is not an everyday task because:
(a) it is done every 10-15 years;
(b) the quote is for $44,500 which suggests it will take many days or weeks to complete;
(c) it is an infrequent task and not ordinary, commonplace, routine, regular or repetitive, and
(d) it is an extraordinary project.
In respect of whether house painting is a “home modification” with the definition, CTP Care also cites the case of Warner v Insurance Australia Limited t/as NRMA Insurance (No 1).[3] CTP Care says that there is a distinction between home modifications (such as a grab rail or ramp) provided for an injured person to help them manage their injuries, as opposed to home improvements or renovations which do not assist a person with their injuries and are not “for the injured person.”
PROCEDURAL MATTERS
[3] [2023] NSWPICMP 334.
Communication with and from the parties
On 21 August 2024 I requested an officer of the Commission provide to the parties a copy of my decision in the matter of BLI v Allianz Insurance Limited.[4] I asked the officer to inform the parties that “[w]hile every dispute is determined on the facts and circumstances of the case, the BLI decision attached indicates the arguments raised in a similar matter and the approach taken by Member Cassidy.”
[4] [2024] NSWPIC 436.
On 27 August 2024, Mr Haddad sent a lengthy message to the Commission which indicated that he misunderstood who had sent the decision (he thought it had been sent by the insurer) and what it was about (he thought it was another decision made by the insurer about his request for painting his home).
Mr Haddad made the following points in his message:
(a) he was badly injured in his motorbike accident due to the negligence of someone else. He could have died but sustained cuts and “little injuries” as well as “a large tear to my shoulder muscles”;
(b) NRMA paid for his right rotator cuff repair operation and provided him with services to assist him. His surgery required nine key hole cuts instead of the usual three and he took longer to recover;
(c) due to the overuse of his left hand and arm he now needs surgery to his left rotator cuff which he has declined to have at this stage;
(d) he is a mechanical engineer, fitter and turner by trade and a handyman. He attended to all the house maintenance and repairs from small to large repairs including paining the house inside and outside, and
(e) he offered to send photos of equipment and material he has used.
Mr Haddad also clarified that he was only claiming the cost of labour and not the cost of the paint and materials.
Mr Haddad provided a copy of a photograph of a part of his house which showed two colours of wall paint.
The preliminary conference
I explained to Mr Haddad at the preliminary conference what the decision of BLI v Allianz was about. I said that I had sent it, not the insurer, and that I sent it because it dealt with a similar dispute, that is a dispute about painting services.
Mr Haddad explained that he nearly died in the accident, that NRMA had promised him they would look after him and that the claims process has been “nothing but a nightmare.” He mentioned thousands of emails and being stressed out by the process.
He said that before the accident he rode a Harley Davidson and was a very responsible person, running a business of taxis and hire cars. He said despite being busy he was a handyman and did everything around the home that needed to be done.
He said he had been living at his home for more than 30 years and that when he first bought it, it had red bricks. Mr Haddad said a couple of years after he bought the house, he painted the home a yellow colour and then five years before the accident he changed the colour to a pinkish brown. He said he had painted the inside of the home six or seven times. Mr Hassan said he had tall ladders and could provide me with photographs of the equipment and old paint tins that he used.
He expressed disappointment that NRMA’s rehabilitation consultant had told him the painting services had been approved and would be paid and then he was told they were not approved and would not be paid.
He referred to his damages claim which had settled and that he had a lawyer but he could not afford a lawyer to run this case and in any event his lawyer was not available. I asked Mr Haddad whether, before he settled his damages claim, he had told his lawyer about the things he had done before the accident around the house (like interior and exterior painting) and that he could not do them after the accident. Mr Haddad said he had told his lawyer at that time about this. He said he had been paid a lump sum of damages and he had used that money to pay off some debt.
He repeated that he was a very good handyman and that before the accident he had done all the painting in and around the home and that he cannot now afford to pay someone to do it. Mr Haddad said the house painting was not something he did “day to day” but something he did “year to year.”
He asked me to exercise my discretion and arrive at a fair decision.
Mr Hunt, conceded at the conclusion of the preliminary conference that:
(a) Mr Haddad was a competent handyman before the accident and was likely to have painted his house but for the accident, and
(b) Mr Haddad’s accident-related injuries prevented him from painting the house himself.
CONSIDERATION OF THE ISSUES
I have considered the evidence from Mr Haddad and note CTP Care’s concession at the preliminary conference. I accept that, but for the accident, it was likely Mr Haddad would have painted the inside and outside of his house. He had done it before, and he had ladders and equipment which would have enabled him to do it again.
I have read the documents and heard from Mr Haddad about his right shoulder injury and surgery, and the problems he has now developed in his left shoulder and I note the concession made by CTP Care at the preliminary conference. I accept that Mr Haddad cannot, because of his injuries, paint the inside and outside of his home and requires someone to provide him with painting services.
Mr Haddad asked me to exercise my discretion in allowing him to claim the cost of painting services.
There is a definition of treatment in section 1.4 of the legislation that lists 11 types of things and services. It is an exhaustive list. Had the list of 11 things and services been prefaced by the words “including” or “such as” or “for example” that would have given me scope to consider things beyond the 11 listed things and services, but the legislation does not say that. The definition states that “treatment and care means …” the 11 things and services. Painting services is not one of the 11 things or services listed. I therefore have no discretion and cannot allow the payment of a service not on the list or add a type of service to the list.
Home modification is one of the 11 things listed in s 1.4 and services provided to an injured person to modify a home would come within the definition of treatment. However, I do not accept that painting a home is a modification to the home. Painting is a form of home improvement or home maintenance.
Attendant care services is another one of the 11 things and services listed in s 1.4. The phrase “attendant care services” is defined elsewhere in s 1.4 as, “… services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.” Attendant care services can be the four things listed there but is not limited to just those things because of the use of the word “includes” as well as the words “for example”. The term “attendant care services” therefore is quite wide and might include pet care services (for someone with limited mobility), gardening assistance and hair care assistance.
I adopt the reasoning from my decision in BLI v Allianz that house painting could be considered home maintenance. In my view spot painting, touch up painting or small painting jobs in and outside the home might be a form of home maintenance that could come within the definition of attendant care services.
However, not all forms of tasks associated with maintaining the home will come within the definition of attendant care services because the definition prefaces the various examples given (including home maintenance) with the words “assistance to people with everyday tasks.” Those words must therefore be considered and applied. I therefore also adopt the reasoning from BLI v Allianz that painting the interior and exterior of a home is not an “everyday task” in terms of something that is usual or routine or common place, but it is a project or major endeavour. Mr Haddad said as much when he said painting was not done day to day but something he would do year to year.
CONCLUSION
Mr Haddad has asked for CTP Care to pay for services to paint the interior and exterior of his home. CTP Care is liable to pay for these services if they are a statutory benefit provided for in Part 3 of the MAI Act. CTP Care cannot make payments outside the legal framework set by Parliament.
Painting services can only be paid by CTP Care if they are “treatment and care.” What “treatment and care” is, is defined in s 1.4 and includes home modification and attendant care services. Painting the claimant’s home inside and out is not home modification.
The phrase “attendant care services” is defined as everyday tasks such as home maintenance. While painting his own home is something the claimant used to do, and was nothing out of the ordinary for him, painting his whole house inside and out is not an everyday task or a routine or regular home maintenance job.
Painting services for Mr Haddad’s home are not therefore attendant care services and are therefore not treatment and care and is not a statutory benefit to which Mr Haddad is entitled. CTP Care is not liable to pay for the painting services Mr Haddad needs.
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