Lacson v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 696
•13 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lacson v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 696 |
| CLAIMANT: | Nanette Lacson |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 13 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether travel expenses to and from claimant’s work satisfies the definition of “treatment and care” for the purposes of section 3.24; insurer submitted not entitled to the expenses as travel expenses not for the purposes of seeking treatment; s3.24(1)(b); Held – application of section 3.24(1)(a) is not to be applied in the context of section 3.24(1)(b); travel expenses to and from work as recommended by treating practitioners satisfies the definition of treatment and care, and rehabilitation and attendant care services as set out in section 1.4. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The insurer is liable for reasonable and necessary travel expenses that relate to the injury resulting from the motor accident, to and from the claimant’s workplace, with such expenses satisfying the definition of “treatment and care” for the purposes of s 3.24(1)(a) of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 6 April 2024 Ms Nanette Lacson (the claimant) was the driver of a vehicle along the M4 Motorway when it was rear-ended by another vehicle. The impact caused her vehicle to make a 180 degree turn, fall sideways and skid off the road at high speed, resulting in the claimant being entrapped beneath.
The claimant lodged a claim for statutory benefits with the insurer of the vehicle considered to be at fault, Insurance Australia Limited t/as NRMA Insurance (the insurer). Liability for payment of statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) has been accepted by the insurer.
The injuries suffered by the claimant include physical and psychological injuries.
A dispute has arisen between the parties as to liability to pay for transportation to and from the claimant’s workplace. The claimant is said to suffer from anxiety, particularly when travelling on the M4 motorway, and the transportation to and from work is requested to help the claimant overcome her anxiety and allow her to return to her workplace at The Children’s Hospital at Westmead. The request for transport is not made on an ongoing basis and is for a limited period of time.
The insurer denied the request for transportation by way of notice dated 2 October 2024. An internal review application was lodged on the same day and by way of notice dated
4 October 2024, advising the insurer’s position that the decision was not a matter that is internally reviewable as it was considered to be a medical dispute matter under Schedule 2 of the MAI Act.
Related to the dispute regarding transportation costs is a dispute regarding the claimant’s entitlement to payments of weekly statutory benefits. The insurer has not attended to payment of weekly statutory benefits, as I understand it, from 30 September 2024 on the basis that the claimant was certified as fit for pre-injury work (with a notation regarding being unable to travel on the M4).
The claimant subsequently lodged an application with the Personal Injury Commission (Commission).
The matter has been allocated to me as a Member of the Commission for determination of a miscellaneous claims dispute pursuant to Schedule 2, cl 3(n) of the MAI Act – “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this schedule”.
Noting that the dispute as to the payment of weekly benefits is a merit review matter, a separate certificate and reasons will be issued in respect of same.
I held a preliminary conference with the parties on 28 November 2024. I requested further written submissions from the insurer, noting that in my view the initial submissions lodged on behalf of the insurer did not address the real issues in dispute. I indicated that I would thereafter determine the dispute on the papers.
Those further submissions were lodged on 29 November 2024 and the claimant responded via message dated 2 December 2024.
LEGISLATIVE FRAMEWORK
The dispute essentially centres on whether the claimant is entitled to the request transportation expenses pursuant to s 3.24 of the MAI Act.
That section provides, relevantly, 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,
(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.
…”
“Treatment and care” is defined under s 1.4 of the MAI Act as meaning 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.”
Section 1.4 of the MAI Act defines rehabilitation as follows:
“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.”
Attendant care services is defined in s 1.4 of the MAI Act to mean “…services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
SUMMARY OF EVIDENCE
I have been provided with a number of certificates of fitness completed by the claimant’s general practitioner (GP), Dr Pathmanathan. The initial certificate is dated 28 April 2024 and includes a diagnosis of a head injury and anxiety. Subsequent certificates include a note of back pain.
In the latest certificate before me, Dr Pathmanathan includes an additional note of left sided leg pain due to the altered weight compensation. He certifies the claimant as being fit for pre-injury work from 30 September 2024 with a note “no driving on M4”. It is this certificate that has precipitated the dispute the subject of these proceedings.
More fulsome information is provided in respect of return to work in a Sydney Children’s hospital document “Management of Non-Work Related Illness – Capability Assessment” filled out by Dr Pathmanathan on 29 September 2024. He considered the claimant’s condition to be temporary in nature and to have a good prognosis. He noted the condition was improving and he did not consider the claimant would have permanent restrictions impacting the requirements of the role. In answer to the question: “is there anything the organisation can do to assist the worker’s recovery and return to work?” the doctor answers: “provide transport to and from work.”
Further, the doctor ticked the “no” box as to whether the claimant was capable of driving a car or catching public transport.
The claimant has provided a copy of a letter from her psychologist, Jennifer Humby, dated
10 October 2024. It is helpful, in my view, to transcribe the letter in full:“I am the psychologist who is seeing Mrs Nanette Lacson regarding her psychological recovery following a motor vehicle accident on 06/04/2024, claim number NWRTP240106301. Mrs Lacson currently is unable to drive to her workplace at The Children’s Hospital at Westmead, which is once a week on Saturdays, due to her only feasible routes being on the M4 or Great Western Highway which present substantial triggers for her. Public transportation on the Saturday is restrictive and presents a barrier to her getting to that workplace. Since the transportation is a separate barrier, and the work itself requires only readjustment, I recommend that the transport barrier be addressed by providing funding for individual transportation such as taxi, Uber or similar, to allow to (sic) Mrs Lacson to return to work. This is expected to be temporary, while Mrs Lacson regains confidence in driving through gradual exposure, and would only be required when Mrs Lacson’s husband is unavailable to drive her. After some time for her to settle back to her work role at The Children’s Hospital at Westmead, she is expected to have more capacity to tolerate the stresses of driving or using public transportation. An estimated 10 days of return travel would be required for this adjustment, for a total of 20 single trips over a period of approximately 10 weeks. Provision of this funding would allow Mrs Lacson to return to normal work and reduce barriers to her further progress.”
SUBMISSIONS
Claimant’s submissions
In her request for an internal review, the claimant notes that she has been experiencing significant psychological distress, including anxiety and potential post-traumatic stress disorder, specifically related to driving. She states that she finds driving extremely challenging due to stress, especially under certain conditions such as driving on the M4 and nighttime driving, when the accident happened.
The claimant notes that her psychologist has developed a plan to help her manage her anxiety and distress and she further states that she has a “strong desire to return to work” as she considers it would be beneficial to her overall wellbeing. The claimant notes the support from her doctor to be provided with transportation assistance.
In an email dated 21 October 2024 to the insurer the claimant noted that she has missed her return to work for three weeks due to her inability to drive on the way to and from work. The claimant enquires as to the status of her claim for loss of income in such circumstances.
In her application form to the Commission dated 4 October 2024 the claimant notes that she has not received payments of weekly compensation, despite the support for transport assistance from her treating practitioners. The claimant notes that the transport would assist in her recovery.
At the preliminary conference, the claimant explained to me that whilst there was a suggestion she could take an alternative route to work, she was unfamiliar with the alternative route and her driving anxiety is such that she does not consider herself confident enough to negotiate the unfamiliar route.
The claimant reiterated that the intention was the transport assistance would be for a limited period and part of an “exposure” type therapy suggested by her psychologist to allow her to gradually overcome her driving anxiety.
The claimant impressed as a sincere person that is genuine in her desire to return to the workplace.
Insurer’s submissions
The insurer’s submissions dated 8 November 2024 are confined to discussion related to s 3.24(1)(b) of the MAI Act. It is essentially submitted that such sub section means that travel costs are only applicable if the travel is to seek treatment and care. Therefore, due to the fact the requested transport is to go to work and not obtain treatment the claimant is not entitled to the subject costs.
At the preliminary conference with the parties I indicated that I considered it abundantly clear on the facts that the claimant is not entitled to the subject travel costs under s 3.24(1)(b) of the MAI Act, and I instead considered the issue in dispute is whether the claim falls within the definition of “treatment and care” for the purposes of s 3.24(1)(a) of the MAI Act. I directed that submissions be lodged that deal with this issue.
In further submissions dated 29 November 2024 the insurer effectively reiterates the original submissions that s 3.24(1)(b) of the MAI Act disqualifies the claimant from receiving the subject travel costs. The insurer submits that the definition of “treatment and care” must be read in the context of s 3.24(1)(b) of the MAI Act.
Whilst submitting that s 3.24(1)(b) means the claimant is not entitled to the travel costs, the insurer does concede that the definition of “rehabilitation” is broad and the list of attendant services in the definition is not exhaustive.
FINDINGS AND REASONS
The insurer submits that the definition of “treatment and care” must be read in the context of s 3.24(1)(b) of the MAI Act. I do not agree with this assertion. The sub categories of expenses contained within s 3.24(1) are stand alone categories. There is nothing within the section that would lead to a conclusion that the only travel expenses that can be claimed need to fall within the context of s 3.24(1)(b).
In my view, all that is required for an insurer to be liable for travel expenses in respect of “treatment and care” is that such expenses fall within the definition. In this instance, the relevant definition is “attendant care services” and “rehabilitation”.
In my view the definition of rehabilitation is broad and the requested travel expenses falls squarely within the definition in rehabilitation as it’s precise intention is to enable to the claimant to attain and maintain the maximum level of independent living, and more relevantly full vocational ability. Furthermore, the expenses clearly would be related to the claimant’s full inclusion and participation in all aspects of life.
I am also of the view that the transport expenses would fall within the definition of “attendant care services”. It is noted that the examples provided in the definition should not be seen as an exhaustive list given the wording of the definition. I consider it clear that the provision of transport to and from work satisfies the definition requirement of expenses that provide assistance for everyday tasks.
Whilst the subject certificate of fitness of 29 September 2024 certifies the claimant as fit for work, it includes the proviso that she is not fit drive on the M4. However, when read in the context of the elaboration of the claimant’s fitness for work by the GP in the capability assessment provided to her employer of the same date, I consider it apparent that the claimant’s GP did not consider the claimant fit for work unless she was provided with transport assistance. In this regard, this document states the claimant should be provided with transport to and from work and also documents his view the claimant is not fit to drive.
Moreover, the claimant’s psychologist has provided ample explanation as to the claimant’s requirement for transport assistance for a period of time before she would be able to return to work.
For the above reasons, I consider the claimant’s request for the provision of transport assistance to and from work to fall within the definition of treatment and care as relevant to s 3.24 of the MAI Act.
Whilst, whether such treatment and care is “reasonable and necessary” and related to the motor accident is technically a medical dispute matter for the purposes of Schedule 2 of the MAI Act, by way of comment only, I consider it abundantly clear that such requirements would be met.
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