Irani v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Irani v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 455
CLAIMANT:	Jim Irani
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Belinda Cassidy
DATE OF DECISION:	9 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); claim for statutory benefits; dispute about provision of a therapy animal or support dog or dog(s); claimant had two dogs which were pets before the accident but he submitted that as a result of his injuries he needed the dogs as part of his treatment, recovery and rehabilitation plan; insurer submitted that “pet care” was not covered by MAI Act; claimant relied on medical evidence from his treating psychologist that his dog would help him manage his symptoms and prevent him from deterioration; whether a therapy animal or support dog comes within the definition of “treatment” in section 1.4 of MAI Act; State of NSW (Central Coast Local Health District) v Bunce and Rose v Health Commission (NSW) referred to; Held – a therapy dog comes within the meaning of “rehabilitation” as defined in MAI Act and is therefore a form of treatment; matter referred for medical assessment of whether the proposed treatment is reasonable and necessary and related to the injuries caused by the accident.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 and Schedule 2(3)(n) of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The provision of a therapy dog or dogs to an injured person is “rehabilitation” and therefore a form of “treatment and care” as defined in s 1.4 of the Act. 2. The proceedings are returned to the Commission for medical assessment in accordance with Division 7.5 and Schedule 2(2)(b) of the Act.

STATEMENT OF REASONS

INTRODUCTION

General background to the dispute

Jim Irani was involved in a motor accident on 5 April 2022. He was driving his motorbike when a vehicle on the opposite side of the road veered into his lane and hit him head on. In addition to a number of significant physical injuries sustained in the accident, the claimant developed psychological injuries following his accident.
Mr Irani lodged an application for statutory benefits with NRMA on or about

14 February 2022[1] and NRMA has accepted that claim and has paid (and continues to pay) Mr Irani statutory benefits.
[1] Page 8 of the insurer’s bundle.
A dispute has arisen in the claim about the claimant’s dogs, Staunch and Chief.
A dispute about the cost of washing and walking services for Staunch and Chief was referred to the Personal Injury Commission (the Commission) and determined by Merit Reviewer Ruschen on 23 October 2023.[2] Essentially, she found the services in dispute involved caring for pets which she found was not “domestic services”. “Domestic services”, is one of the examples of “attendant care services” which is a type of “treatment” within the meaning of s 1.4. As Merit Reviewer Ruschen was not satisfied the dog washing and dog walking services were attendant care services and therefore treatment, she determined statutory benefits for walking and washing Mr Irani’s two dogs were not payable by the insurer.
[2] I have been provided with a copy of that decision but it has not been published on the Commission’s website, in its bulletins or on >
The claimant’s current application to the Commission lists as the application type “Form M01-Meidcal assessment”. Of the seven types of disputes listed in that form, the claimant’s solicitor has ticked the box “treatment and care reasonable and necessary”. Further on in the form the claimant’s solicitor identifies the dispute as “whether the provision of services for dog washing and dog walking are reasonable and necessary form of treatment for the Claimant’s mental health”. The desired outcome was stated to be “The insurer to continue payment for the provision of these services and reimburse payments made by the claimant to date”.
The insurer has denied that dogs can be treatment within the meaning of s 1.4 and has denied to pay for pet care services in relation to the dogs.
The dispute has been referred to me in advance of any medical assessment in order to determine whether dogs can be treatment and consider the terms of any referral to a Medical Assessor.
I have held three preliminary conferences with the representatives of the parties in the matter.

LEGISLATIVE FRAMEWORK

Claims for statutory benefits

Mr Irani’s claim is a claim for statutory benefits under Part 3 of the MAI Act. 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 provides for the payment of treatment and care expenses as follows:
“(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,
…
(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).”
Section 1.4 of the Act provides a definition of “treatment and care” 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.”

Dispute resolution of treatment disputes

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 matters to be merit review matters, others to be medical assessment matters and several disputes to be miscellaneous claims assessment matters.
In the context of a dispute about treatment:
(a) Schedule 2(1)(i) declares as a merit review matter “whether the cost of treatment and care … is reasonable for the purposes of section 3.24(1)”, and
(b) Schedule 2(2)(b) declares as a medical assessment matter “whether any treatment and care … is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”.
Schedule 2(3)(n) however 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”.

PROCEDURAL MATTERS AND SUBMISSIONS

Insurer decision-making

The insurer sent an email to the claimant and his solicitors dated 2 May 2023 confirming the insurer has agreed to pay for dog washing services provided by a commercial pet washing service at a cost of $90 for each of four weekly visits from 2 May 2023 to 31 May 2023.[3]
[3] Pages 4-5 of the claimant’s bundle.
NRMA also says:
“Please note, as Pet care is not covered under the NSW CTP Scheme, and as we have funded this service on compassionate grounds for 12 months, we will no longer be able to fund dog washing services beyond this approval. We hope that by approving these additional x 4 services this will allow you sufficient time to make alternative arrangements, should you believe you are still unable to provide this care for your dogs.”
Similar correspondence was sent and received in relation to services provided by a professional pet walking services at a cost of $35 per week for five walks per week from

2 May 2023 to 31 May 2023 (20 in total).[4]
[4] Pages 2-3 of the claimant’s bundle.
The claimant sought an internal review and on 24 May 2023, NRMA’s Mr Wong wrote to the claimant affirming NRMA’s original decisions to deny both the walking and washing of Staunch and Chief. This decision:
(a)    refers to s 3.26(1)(a) which provides for an injured person’s loss of capacity to provide domestic services to dependants and the definition of dependants;
(b)    concedes that “dog minding and cleaning services … relates to the motor vehicle accident. The causation of the requirement for these services is not in dispute”, but that
(c)    the dog minding and cleaning services do not fall within the scope of benefits payable under s 3.26.

Claimant’s submissions

The claimant submits to the Commission that:
(a)    he has severe physical and psychiatric injuries;
(b)    the insurer originally approved and arranged walkers and washers for a year “on a compassionate basis” but now says that the legislation does not require these services to be provided;
(c)    these services are part of the reasonable costs of his treatment and care, and
(d)    he seeks payment of “out of pocket expenses” spent since the insurer has ceased paying for the walking and washing of his dogs.
The claimant relies on a report of Carol Hayek dated 23 June 2023 which Mr Irani says supports his need for services as part of his treatment and care regime. He also provides the reports from Dr Vote and Dr Bharadwaj to explain the nature and severity of the claimant’s injuries.

Insurer’s submissions

The insurer’s original submissions were dated 21 November 2023. The insurer cites at [5]

s 3.24 and notes at [6] that treatment and care expenses that can be claimed are set out in s 1.4 of the Act.
The insurer refers at [7] to criteria for reasonable and necessary treatment:
(a)    directly related to the injuries;
(b)    aimed at helping the injured person get back to their usual activities;
(c)    be appropriate for the type of injury;
(d)    be provided by an appropriately qualified health profession, and
(e)    be cost effective.
The insurer has not identified from where these criteria were sourced.
The insurer confirms at [12] that liability for the statutory benefits claim has been accepted, NRMA is the relevant insurer and benefits continue beyond the first 52 weeks.
The insurer notes at [13] it has declined further funding of “pet care” beyond that which has already been paid on “compassionate grounds”.
The insurer refers at [15] to the merit review matter and the decision of Merit Reviewer Ruschen that, “the cost of dog washing and dog walking services do not fall under the costs of treatment and care covered by section 3.24 of the Act”.
The insurer says that the dog caring services do not fall within the scope of statutory benefits as these services are not treatment and care within the meaning of the definition in s 1.4.
The insurer then at [20] refers to the definition of attendant care services and notes at [21] this definition is not exhaustive and says pet care may be “domestic services” if anything. The insurer refers at [22] to decisions made under the Motor Accidents Compensation Act 1999 and in accordance with Griffiths v Kerkemeyer[5] and cites at [25] the case of Geaghan v D’Aubert[6] and a Queensland case Schofield v Hopman & Anor[7] neither of which extended the Griffiths principle to pet care or hobbies. The Griffiths principle of course is relevant to a scheme of lump sum compensation including compensation for gratuitous services.
[5] (1977) 139 CLR 161 (Griffiths).
[6] [2002] NSWCA 260.
[7] [2017] QSC 297.
The insurer concludes that:
“The relevant authorities establish that services provided in relation to pet care such as dog washing and dog care are not domestic services of a kind in respect of which compensation of damages are payable.”

First preliminary conference – 21 May 2024

At the first conference, Ms Falco from One Group Legal appeared for the claimant and

Ms Zogopoulos appeared for NRMA. Ms Falco said:
(a)    her client was still having mobility issues and was unable to walk his dogs himself;
(b)    Mr Irani was still suffering from his psychological injuries and was comforted by his dogs and they helped him manage his post-traumatic stress disorder and other psychological symptoms;
(c)    the claimant was still not working and was unlikely to work again, and
(d)    the insurer has paid, and has continued to pay, for some of the dog related services namely dog washing.
Various therapeutic programs involving dogs were discussed including guide dogs, emotional support or therapy dogs and service dogs. It was also noted that the National Disability Insurance Service provides funding for service dogs and the Department of Veterans Affairs funds psychological support dogs for returned soldiers with post-traumatic stress disorder.
The insurer was asked to consider whether dogs generally could form part of a treatment program for injuries including psychological injuries.
It was further discussed that if NRMA does recognise that dogs can be part of a treatment program, then there could be a valid medical dispute about whether Mr Irani needs a pet therapy type recovery or rehabilitation program. A further medical aspect of that dispute might involve whether Staunch and Chief are reasonable and necessary treatment as part of Mr Irani’s pet therapy program.
If that was the case, then the scope of the referral to the Medical Assessor could involve both a consideration of the claimant’s mental state (the need for his own dogs as part of his therapy) as well as his physical state (his ability to walk and wash his own dogs himself).
The issue of who decides whether something is or is not “treatment” was discussed.
A report was issued to the parties and directions made for the lodgement of submissions.

The insurer’s submissions – 6 June 2024

The insurer’s solicitor Ms Hanna was the author of the submissions dated 6 June 2024 filed following the first preliminary conference. The submissions quote at [5] s 3.24(1) including (a) but not including (b). The insurer refers at [6] to s 1.4 and the definition of attendant care which is “…services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”. The insurer then says at [7]:
“ … in the circumstances, the claimant’s pets do not provide him with assistance of everyday tasks. The claimant’s pets formed part of his living situation prior to the accident and were not purchased/adopted for the purpose of providing him with any service or personal or domestic assistance.”
In respect of the discussion at the preliminary conference about whether dogs can be “aids and appliances”, the insurer notes at [9 a] that there is not definition but that it “expects these are confined to specialised equipment”.
In relation to the discussion about whether dogs can be rehabilitation, the insurer quotes at [9 b] the definition of “rehabilitation” and then says at [10] the request for dog walking and washing does not fall within the definition without any explanation or further reasons.
The insurer says at [11] that there is “no legislative requirement to fund pet caring services” and they do not fall within the scope of treatment and care or domestic or attendant care services under the Act.
The insurer says at [12]:
“For the purposes of the Act, and in the circumstances, the insurer does not agree that animals can form part of an injured person’s treatment, recovery and rehabilitation plan, nor does it agree that an injured person’s pets (at the time of the accident) can form part of their treatment, recovery and rehabilitation plan.”
The insurer submits at [13] that there can be no medical dispute formulated where the services in dispute are not treatment and care and that the claimant’s application should be dismissed.
At [14], the insurer “the referral of this application dealing with the same issue as determined by Merit Review Ruschen” could result in two contradictory decisions of the Commission.
The insurer then raises in [15] a number of separate issues most of which relate to the reasonableness and necessity of the services and causation. The insurer did however agree at [a] that “a medical assessor does not have jurisdiction to determine whether the services sought satisfy the legislative definition of treatment and care”.

The claimant’s submissions - 21 June 2024

The claimant’s submissions were prepared by his counsel, Mr Daley. At [5] of these submissions, the claimant says that he requires his dogs as “a form of assistant animal therapy to maintain and foster his mental health” after he sustained psychiatric injury in this accident. The claimant says at [6] that therapy animals are aids and appliances and rehabilitation noting at [7] that Ms Hayek’s opinion indicates the roles the dogs play in his life.
The claimant then says at [9] that if the dogs are therapy animals then the need to maintain them is part of the necessary expense of that treatment.
The claimant says at [8] and [10] that whether the claimant’s dogs have a role beyond that of being a pet is a medical assessment matter.
The claimant says at [11] there is “growing acknowledgement within the community of the benefits of therapy animals” identifying:
(a)    therapy animals are commonly permitted in workplaces;
(b)    there are established programs such as Paws at Work which offer dog training and integration of pets into the workplace, and
(c)    the National Institute of Health (an American entity) recognises service dogs can be trained to assist people with psychological disabilities during panic attacks of period of anxiety and well as “visitation dogs” and “therapy dogs”.
The claimant says at [13] that the insurer has not identified a provision or a case which denies the argument that therapy animals can be a part of an injured person’s treatment, recovery and rehabilitation plan. Mr Irani also submits at [14] that there is no reason in principle why his own dogs cannot form part of his treatment, recovery and rehabilitation saying, “often an injury converts a desire or convenience into a need.”
The claimant cites Van Gervan v Fenton[8] where, the majority said at [26] that:
“If the defendant has created the need for the services, that person is not entitled to have the damages reduced because, before the accident, the plaintiff elected to pay for similar services or had the benefit of having them performed gratuitously. By the tort, the defendant has transformed the choice of the plaintiff to pay for such services or to have them done voluntarily into the need for the plaintiff to have those services performed for him or her.”
[8] [1992] HCA 54.
The claimant argues at [16] that utilising his existing animals to fulfil the need (for a therapy animal) is more cost effective than buying two new dogs. He proposes wording for the referral to a Medical Assessor.

Second preliminary conference – 28 June 2024

At this conference, Ms Vandebeek from One Group Legal appeared for the claimant and

Ms Hanna from Sparke Helmore Lawyers appeared for the insurer.
Ms Vandebeek referred to the recently lodged submissions and confirmed that the current dispute is not about whether the claimant’s physical injuries prevent him from caring for his dogs but that the current dispute is about whether his dogs are needed as part of his treatment, rehabilitation and recovery plan due to his accident-related psychological or psychiatric injury.
I noted that the insurer had also recently lodged submissions (17 which included at [12] the following submission:
“For the purposes of the Act, and in the circumstances, the insurer does not agree that animals can form part of an injured person’s treatment, recovery and rehabilitation plan, nor does it agree that an injured person’s pets (at the time of the accident) can form part of their treatment, recovery and rehabilitation plan.”

I referred Ms Hanna to the discussions that had taken place on the previous occasion and again referred to guide dogs and post-traumatic stress disorder service dogs. I expressed the preliminary view that dogs could be part of an injured person’s treatment and rehabilitation regime in the light of those two examples. Whether the claimant’s existing dogs Staunch and Chief could be part of his treatment and rehabilitation regime would appear to be a medical assessment matter.
There was discussion about the wording that might be adopted in any referral to a Medical Assessor. The insurer’s representative said she would need to obtain instructions.
I indicated I would determine whether dogs in general can be “treatment” within the meaning of s 1.4 of the MAI Act if there was no agreement between the parties.
I issued a further report and issued further directions.

Third preliminary conference – 19 July 2024

Ms Vendebeek and Ms Hanna appeared again. Ms Hanna advised she had been unable to obtain instructions from her client on the point of whether dogs could form part of an injured person’s treatment and rehabilitation program.
I determined that in the absence of any agreement from the insurer I would decide that point on the papers. If the insurer agreed that dogs could form part of an injured person’s treatment and rehabilitation plan, I would formulate the referral to a Medical Assessor for the determination of the medical assessment matter.
I issued a further report and issued a further direction to the insurer.

Insurer’s final response

On 29 July 2024, the insurer’s representative uploaded a message to the portal saying, “the Insurer does not concede or agree with the general idea that dogs can be treatment.”

REVIEW OF THE EVIDENCE

General observations

The insurer has lodged a bundle of documents comprising of 538 pages. Some of these documents had already been provided by the claimant. Most of them are medical reports, certificates of fitness and are not greatly relevant to the preliminary dispute about whether the services in dispute are treatment or not. I propose to refer only to those matters relevant to the matter in dispute.

Medical evidence

The most recent certificate of fitness completed by Dr Abraham on 20 January 2023 refers to the claimant’s multiple physical injuries and says he has “limited mobility and pain”, with “PTSD related to the accident”.
Dr Fritsch, knee surgeon refers to the claimant’s psychological issues impacting his recovery. He says:
“I think there is a significant psychological aspect to part of this and we had a good chat about it today. He has had a severe trauma, and I manage many people who have this injury. Some of them move through and past the trauma, where others get a little stuck within the trauma. I think there is a risk that Jim's becoming the latter. I know he is working with a psychologist on some aspects of this and I think that's very sensible and I would encourage him to do so.”
Ms Hayek, clinical psychologist provided a report to the claimant’s lawyers dated

23 June 2023. She was asked to provide “an opinion as to the need for Mr Irani to be able to keep his dogs as a necessary part of his treatment recovery” and what the effect would be if he had to give up his dogs.
The claimant has been having regular psychological treatment sessions “to address … post-traumatic stress disorder symptoms and emotional dysregulation”. He was said to have impaired ability to manage emotional distress.
The two dogs are identified as Staunch – an 11 year old English Staffie and Chief a 3 year old rescue dogs. He says his dogs have given him “companionship structure and affection … and have mitigated some of the difficult psychological effects” of the accident.
The claimant reported to Ms Hayek that if his dogs are not walked, they will be distressed and cause destruction of his yard, plants and home furniture. He says if they are not washed, they will be prone to ticks, fleas and disease. He also is reported to have said that his inability to care for his dogs and the reduction in care allowed by the insurer “has caused significant distress and exacerbated his psychological disability”.
Ms Hayek says that “it is well documented that pets can offer a superior level of support to trauma survivors” and that “a pet can act as a lifeline when the individual they live with experiences PTSD and emotional distress”. Pets can provide emotional support which can increase mindfulness, increase oxytocin levels and reduce anxiety.
Ms Hayek also says that “if Mr Irani was to lose his dog due to lack of care resulting from the motor vehicle accident, his symptoms would become very exacerbated.” She says he might require more care, his mental health would be compromised, and he would be at risk of further psychological injury which would prolong his recovery.
Dr Bharadwaj psychiatrist has provided a report to NRMA dated 19 June 2023.
He refers to the accident and notes the claimant’s general practitioner diagnosed the claimant with post-traumatic stress disorder. He notes the claimant’s physical injuries resulted in a left knee reconstruction, physiotherapy, sports and exercise physical consultations and he has had podiatry treatment and treatment to his face and jaw.
The claimant was said to be living alone supported by his father, sister and some friends.
The claimant was reported to have been into bodybuilding and a gym junkie before the accident and was taking growth hormones and testosterone before the accident.
There was no evidence of a pre-existing psychiatric disorder.
The claimant reported being taken to hospital after the car accident and having surgery and treatment to his left knee and right ankle.
A year after the accident he was still complaining of pain in the left knee, right foot, both hands and back.
Dr Bharadwaj diagnosed a post-traumatic stress disorder and a major depressive disorder. He says in answer to question 8 that Mr Irani’s psychological injuries are severe and leaving home is associated with significant distress.
There is no mention of the dogs in this report.
Dr James Vote, orthopaedic surgeon has provided a report to the insurer dated 8 June 2023. He notes that the claimant was riding his motorcycle and was hit by another car with a collective impact speed of 100km. The claimant was said to have sustained:
(a)    major soft tissue right foot injury requiring debridement surgery;
(b)    exploration of the left knee under anaesthetic multidirectional instability – ruptures of ACL, PCL and posterolateral capsule;
(c)    an injury to left wrist;
(d)    lacerations to distal right forearm and fingers;
(e)    a back injury developed, and
(f)    a dental injury occurred.
At the time of the examination the claimant was still wearing a hinged leg brace and seeing an orthopaedic surgeon. He had fallen two weeks earlier. Mr Irani was said to live alone with no dependents and required help with cleaning, lawn mowing and walking his dogs.
Dr Vote recorded ongoing permanent problems including Mr Irani was mobile “with assistance” and that before the accident he could walk his dogs for two hours a day, but at this stage “this is quite beyond him.”

CONSIDERATION OF THE ISSUES

What is the scope of the dispute I am determining?

The insurer in its 21 June 2024 submissions agreed that a Medical Assessor had no power to determine whether a disputed service or thing was treatment within the definition. The insurer was silent as to whether a Merit Reviewer had that power. The insurer said in its submissions that an assessment (by me) of the issue poses the risk of having two conflicting decisions about what is or is not treatment. This response while somewhat vague suggests that the insurer is of the view a Merit Reviewer does have the power to determine whether something is or is not treatment.
Under Schedule 2(1)(i) of the MAI Act, a Merit Reviewer is specifically empowered to determine disputes about the cost of treatment and care under s 3.24(1)(a). Under Schedule 2(2)(b), Medical Assessors are specifically empowered to determine whether, under s 3.24(2) the claimed treatment and care is not reasonable and necessary or related to the accident caused injuries.
The list of declared merit review matters and medical assessment matters does not include a clause that would provide specific jurisdiction for Merit Reviewers or Medical Assessors to determine whether a disputed thing or service is “treatment and care”. There is nothing in the Schedule that gives specific jurisdiction to any decision maker to determine whether some thing or some service is or is not treatment and care.
In my view, in accordance with that provision, I have the power, as a Member, to determine whether the provision of a therapy animal is “treatment and care” within the meaning of the definition in s 1.4 and whether the insurer may be liable for to pay for it, as part of

Mr Irani’s statutory benefits claim. I note this is the approach taken by Senior Member Williams in Edwards v Allianz Australia Insurance Limited[9] in relation to damaged clothing and Member McTegg in Suttie v QBE Insurance (Australia) Limited[10] in relation to irrigation equipment.
[9] [2024] NSWPIC 74.
[10] [2024] NSWPIC 355.
It follows from the above that in my view, Merit Reviewer Ruschen did not have had the power to determine the dispute about whether the walking and washing of the claimant’s dogs was treatment. In saying that I am not in any way being critical of Merit Reviewer Ruschen. Her decision (October 2023) was determined before Edwards (February 2024) and Suttie (July 2024) and her reasons do not suggest that the issue was raised by either of the parties in the submissions that were before her.[11]
[11] I do not have a copy of, or access to the Commission’s file in the merit review matter.
Merit Reviewer Ruschen approached the dispute that was before her on the basis that she was determining whether pet care services were treatment within the definition, that is services provided to the claimant’s dogs in the role of his pets because the claimant could not perform them. She acknowledged the report of Ms Hayek but said that she did not have power to determine whether the claimant needed his dogs as part of his treatment and care and that this was a medical assessment matter. If the dogs are found by a Medical Assessor to be reasonable, necessary and related treatment then the reasonable costs and expenses of those dogs might come within the scope of s 3.24(1)(a). But that is a matter that cannot be determined until after the medical assessment has taken place and the outcome is known.
The insurer’s final message to me uploaded to the portal was “that the matter should be determined based on the basis of pet care as initially framed by the claimant”. This is also vague as it is not clear whether the insurer is referring to the framing of the dispute that Merit Reviewer Ruschen was asked to determine or the framing of the dispute in the application that is before me.
What is clear is that the current application to the Commission (for medical assessment), the discussions at the preliminary conference, the submissions of the claimant’s counsel and the report of Ms Hayek all point to there being a claim by Mr Irani that Staunch and Chief are no longer solely performing the role as his pets, but that they are now part of his treatment, rehabilitation and recovery plan and that the insurer should pay for them.
Noting the current submissions of the parties, the dispute as framed above requires these decisions:
(a)    whether therapy dogs can be treatment as a general proposition;
(b)    whether Mr Irani needs a therapy dog or dogs as a result of his injuries;
(c)    whether it is reasonable and necessary in his circumstances for Staunch and Chief to fulfil the needed role of therapy dog, and
(d)    what are the reasonable costs of the therapy dog or dogs.
The first matter must be determined first and that is the subject of these reasons.

What is the type of animal therapy the claimant seeks?

In the report of the first preliminary conference on 21 May 2024 I noted the distinction between assistance or service dogs and emotional support or therapy dogs.
The claimant’s 21 June 2024 submissions, refers at [5] to “a form of assistant animal therapy” and at [6] and [9] to “therapy animals”. The examples given by the claimant from the American National Institutes of Health appear to distinguish between individually trained and accredited assistance or service dogs and visitation or support dogs which do not appear to be trained, or not trained to the extent of assistance or service dogs.
The report of Ms Hayek does not state that Mr Irani needs a trained service animal but that he needs his current animals as emotional support and to alleviate the symptoms of his post-traumatic stress disorder and arrest or prevent the deterioration of his mental state.
I am satisfied that the claimant is not seeking either a trained service animal or training for his own animals to fulfil the role of an assistance or service animal but that he is seeking the ongoing presence of his own dogs as emotional support or therapy dogs. I will for the remainder of these reasons refer to this as a claim for a therapy dog or dogs.

Can a therapy dog be treatment?

The insurer has provided no substantive submissions addressing the definition of treatment and why the insurer says a therapy dog is, or is not, an aid or appliance or can, or cannot, be a form of rehabilitation.
Neither party referred me to any case law. The State of New South Wales (Central Coast Local Health District) v Bunce[12] is of relevance to the matter I have to decide. That case dealt with s 59 of the Workers Compensation Act 1987 which contained a definition of “medical or related treatment” which included at (b), “therapeutic treatment given by direction of a medical practitioner.” The “treatment” in dispute in that case was a service or assistance animal. The parties before the Arbitrator had agreed that if s 59(b) was the relevant criteria and the Arbitrator had determined that the provision or a service or assistance animal did come within that definition.
[12] [2020] NSWWCCPD 48.
Deputy President Snell referred to the decision of Burke CCJ in Rose v Health Commission (NSW)[13] and at [60] cited the following passage of the Chief Judge’s reasons:
“... treatment must be reasonable if it is to fall within the purview of the subsection. But that is not solely because of the words ‘reasonably necessary’ but is rather inherent in the concept of ‘treatment’ itself. Treatment is necessarily purposive. Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all.”
[13] 1986 NSWCC2; 2 NSWCCR 32.
Deputy President Snell said at [68] that s 59 was not restricted to the provision only of services and that “treatment can extend to the provision of things in an appropriate case”. He considered at [69] that while the provision of a dog was an unusual claim, it must be “designed to arrest or abate the progress of a condition, cure or remedy the condition limiting the deleterious effects of a condition and restoring health” as stated in Rose and in accordance with the legislative provision must be “by direction of a medical practitioner”. He found at [74] that the phrase “therapeutic treatment” in s 59(b) was “sufficiently broad to encompass the provision of an assistance dog in an appropriate case”.
The legislative definition in the workers compensation scheme is similar to that in the MAI Act as they both provide a list of services and things that are treatment. But the list is different and the definition in s 59 uses the word “includes” before the list which suggests the list may not be exhaustive. The definition of treatment at s 1.4 of the MAI Act lists 11 particular treatment modalities and also provides that the Motor Accident Injuries Regulation 2017 may add to that list.[14] The definition however states that treatment and care “means” the things in the list. Therefore, treatment in the motor accidents scheme is limited to those 11 treatment types. If something that is claimed does not fall within one of those 11 types of treatment, then it cannot be allowed regardless for example of how reasonable and necessary it is or how directly it relates to the injuries sustained in the motor accident.
[14] There is nothing additional in the Regulation.
In my preliminary conference report, I suggested that of the 11 treatment modalities listed, only two appeared to be relevant, aids and appliances and rehabilitation. I will deal with each in turn.

Are therapy animals, rehabilitation?

“Rehabilitation” in paragraph (c) of the definition of treatment is stated to mean:
“the process of enabling or attempting to enable the person to attain and maintain—
(a)  the maximum level of independent living, and
(b)  full physical, mental, social and vocational ability, and
(c)  full inclusion and participation in all aspects of life.”
A guide dog or seeing eye dog is an example of an assistance or service animal. Those dogs are trained to provide mobility assistance to persons with visual impairment and help them independently move about in their homes and the community. Similarly, the National Institutes of Health material provided by the claimant suggests that dogs can be trained to provide assistance to persons having panic attacks or with post-traumatic stress and they are another form of service or assistance animal. In my view these types of trained service and assistance animals are clearly a form of rehabilitation and therefore treatment in that the animals in those instances would enable a claimant to attain independent living, return to work and fully participate in aspects of their life.
The National Institutes of Health refer to other examples and research supporting emotional support or therapy animals and other forms of “animal assisted interventions”. The case of Bunce refers to medical evidence which in turn also refers to literature as to the efficacy of service or assistance animals for persons with certain psychological injuries. In Ms Bunce’s claim, a dog trained in accordance with the mindDog program had been recommended for her injury (a panic disorder and post-traumatic stress).
The evidence provided by Ms Hayek suggests the claimant’s dogs, Staunch and Chief may help him manage his psychological injury, alleviate his symptoms, provide emotional support and arrest or prevent of any deterioration of his condition. These are things directed at least in helping the claimant maintaining the current state of his mental health. The report of Ms Hayek points to documented cases and her experience of pets supporting trauma survivors and providing emotional support to persons with mental health issues.
I am satisfied on the basis of all of this evidence that emotional support or therapy animals fall within the definition of rehabilitation and are therefore a form of treatment within the meaning of s 1.4 of the MAI Act.

Are therapy animals, aids or appliances?

I agree with the insurer that the term “aids and appliances” is suggestive of external man-made devices which could include things such as artificial limbs, crutches, wheelchairs, hearing aids, grab rails and so on.
A service or assistance animal may be an aid or appliance under paragraph (g) of the definition of treatment. Guide dogs, could for example, be considered an aid to a vision impaired person’s mobility in the same way a wheelchair aids the mobility of someone with a spinal cord injury. The argument in favour of therapy animals being an aid or appliance does not seem as strong however in the light of my finding in relation to the term “rehabilitation” I do not consider it necessary to further address this question.

CONCLUSION

I have found that the provision of a service or assistance animal to a person injured in a motor accident is a form of rehabilitation and therefore treatment and care within s 1.4.
The insurer has raised an issue about whether this type of treatment is related to Mr Irani’s injuries caused by the accident (the insurer refers to a pre-accident mental health condition) and whether it is reasonable and necessary in the circumstances. In particular, the insurer has raised an issue about the therapy dogs being the claimant’s own dogs which would appear to be part of “the circumstances” contemplated in s 3.24(2).
I will therefore refer this matter back to the Commission to proceed with the medical assessment matter and refer it to a Medical Assessor.
In my view, the Medical Assessor should be provided with a copy of these reasons and should determine:
(a)    whether the provision of a therapy animal or animals relates to the claimant’s psychological or psychiatric injuries caused by the accident;
(b)    whether the provisions of a therapy animal or animals is reasonable and necessary in the circumstances for the claimant’s treatment (including rehabilitation), and
(c)    whether the claimant’s dogs Staunch and Chief can perform the role of a therapy animal or animals if (a) and (b) are answered in the affirmative.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established