Lewis v AAI Limited T/As AAMI (Motor Accident Injuries) - [2024] ACAT 98

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LEWIS v AAI LIMITED T/AS AAMI (Motor Accident Injuries) [2024] ACAT 98

MAI 4/2023

Catchwords: MOTOR ACCIDENT INJURIES – where applicant applied for approval of treatment and care, in the form of 20 hours of attendant care services, mentioned in her recovery plan – where respondent approved 4 hours – whether internal reviewer erred in taking into account the applicant’s funding under the National Disability Insurance Scheme when determining whether the proposed treatment and care was reasonable and necessary in the circumstances
Legislation cited: Motor Accident Injuries Act 2019 ss 50, 110, 112, 113, 118, 120, 121, 122, 123, 124, 125, 126, 127, 192, 193, 197, Sch 1, Part 1.2, item 27
National Disability Insurance Scheme Act 2013 (Cth) Ch 5

Subordinate

Legislation cited: Motor Accident Injuries (Treatment and Care) Guidelines 2023, cl 3.2.1, 4.4.2, 6.4.1
National Disability Insurance Scheme (Supports for Participants—Accounting for Compensation) Rules 2013 (Cth), rules 3.1(c) and 3.4
Motor Accident Injuries Bill 2019

List of texts/

Papers cited: Explanatory Statement to the Motor Accident Injuries Bill 2019

Cases cited:Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47
Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2022] ACAT 24
Williams v AAI Limited ACN 005 297 807 trading as GIO (Motor Accident Injuries) [2021] ACAT 100
Youssef v Bevchain Pty Ltd [2023] NSWDC 313

Tribunal:Presidential Member J Lucy

Date of Orders:  24 December 2024
Date of Reasons for Decision:      24 December 2024
Date of Publication:  03 January 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          MAI 4/2023

BETWEEN:

MADELINE DAWN LEWIS
Applicant

AND:

AAI LIMITED ACN 005 297 807 TRADING AS AAMI
Respondent

TRIBUNAL:Presidential Member J Lucy

DATE:24 December 2024

ORDER

The Tribunal orders that:

The respondent’s decision of 8 September 2023 approving the assistance of a support worker for four hours per week is set aside.
In substitution for that decision, the Tribunal approves attendant care services for twenty-three and a half hours per week.
………………………………..

Presidential Member J Lucy

REASONS FOR DECISION

Introduction

The applicant was injured in a motor accident when another vehicle collided with the vehicle she was driving, on 23 January 2021. The respondent, being the insurer of the other vehicle (the insurer), accepted liability under the Motor Accident Injuries Act 2019 (MAI Act), agreeing to pay for all reasonable and necessary treatment and care related to the accident.
Both before and after the accident, the applicant received funding under the National Disability Insurance Scheme (NDIS) in relation to her conditions of attention deficit hyperactivity disorder (ADHD) and autism. Some of this funding was for support worker assistance.
The applicant’s recovery plan made no provision for attendant care services. The applicant requested the insurer to approve such services, being a form of treatment and care. The applicant said she needed them because of a psychiatric injury sustained in the accident.
The insurer approved two hours of domestic cleaning and four hours of support worker assistance per week, on the basis that the applicant needed that amount of support in addition to the support provided under the NDIS scheme.
That decision was affirmed on internal review (the Decision). The internal reviewer referred to the absence of information about the applicant’s NDIS funding as a reason not to approve more than four hours, and also relied upon an occupational therapist’s opinion that four hours was appropriate.
The applicant’s position was that four hours of assistance was “grossly inadequate”. She applied to the tribunal for review of the Decision.
For the reasons which follow, I have found that the internal reviewer erred by taking into account the applicant’s NDIS funding when determining whether the requested treatment and care, in the form of support worker assistance, was reasonable and necessary in the circumstances. I also found that the insurer erred by relying upon the occupational therapist’s opinion as to the treatment and care which was reasonable and necessary, because the treatment and care was for a psychiatric injury and the occupational therapist was not qualified to provide that opinion.
On the basis of medical evidence which was available at the time of the Decision, I have concluded that twenty-three and a half hours per week of attendant care services were reasonable and necessary in the circumstances. Accordingly, I have set aside the internal review decision and substituted a decision approving attendant care services for twenty-three and a half hours per week.

Background

Before the accident, the applicant had been diagnosed with autism, ADHD, depression, schizoaffective disorder and bipolar disorder. She was in receipt of a disability support pension and NDIS funding relating to her autism and ADHD.
The applicant sustained a number of injuries in the motor vehicle accident. Following the accident, the applicant suffered from constant and severe pain in her upper neck, lower spine, and right shoulder. She also experienced dental damage, numbness, and tingling in her right hand and right side of her face, ringing in her right ear, and vision problems. She sustained a psychiatric injury of post-traumatic stress disorder (PTSD) as a result of the accident.
The insurer accepted liability for the applicant’s defined benefits claim on 25 October 2021.
The applicant attended consultations with a psychiatrist, Dr Saba Javed, between March 2023 and May 2023. Dr Javed wrote reports about her consultations with the applicant, and the applicant’s psychiatric condition, on 21 March 2023, 29 March 2023, 12 April 2023, 19 April 2023, 30 April 2023 and 17 May 2023. Dr Javed’s reports express her opinion that the applicant suffered from chronic PTSD as a result of the accident.
The insurer provided the applicant with a recovery plan which commenced on 16 March 2023. The plan identified the applicant’s current injury diagnosis as “right shoulder and cervical spine injury, with right upper limb neurologic impairment.” It provided a summary of treatment approved, being ongoing GP consultations, 10 physiotherapy sessions, an initial psychological consultation, 24 soft tissue therapy sessions, and five prolotherapy sessions. No attendant care services were approved under the plan.[1]
[1] Respondent’s supplementary documents dated 8 March 2024, page 783
An injured person is entitled to apply to the insurer for approval to undergo treatment and care that is not mentioned in the person’s recovery plan.[2]
[2] MAI Act s 126(1)(a)
On 25 March 2023, the applicant emailed the insurer, saying that, due to her psychological injuries, she needed emotional support and assistance from a trained provider whilst being transported to attend appointments listed in the recovery plan.[3] In an email dated 5 April 2023, the applicant clarified that the assistance required was because of her PTSD, and comprised assistance when travelling and during her appointments.[4]
[3] Respondent’s supplementary documents dated 8 March 2024, pages 735-737
[4] Respondent’s supplementary documents dated 8 March 2024, pages 742-743
On 11 April 2023, the insurer wrote to the applicant, informing her that it had engaged a rehabilitation provider “to discuss your needs and advise us of any additional ways we can assist you.” The letter indicated that the rehabilitation provider would contact the applicant to arrange a suitable to conduct an assessment.[5]
[5] Respondent’s supplementary documents dated 8 March 2024, page 257
In May 2023, the applicant attended appointments with the rehabilitation provider, for an assessment, in her home, over two days. The rehabilitation provider was an occupational therapist.
In May 2023, the rehabilitation provider provided a report to the insurer recommending that the applicant receive four hours of support assistance per week, in addition to what she receives from the NDIS, for 4–6 months, as well as two hours per week of domestic assistance for the first month, then two hours per fortnight thereafter. The rehabilitation provider commented that she would have been assisted by information about the level of the applicant’s NDIS funding before the accident. She considered that it was difficult to quantify the exacerbation in the applicant’s symptoms as a result of the accident “considering her pre-existing status and provisions already in place with her long-standing NDIS package.”[6]
[6] Respondent’s supplementary documents dated 8 March 2024, page 278
The applicant contended that the recommended support was inadequate.
On 25 July and 11 August 2023, the applicant emailed the insurer, saying that she did not accept that four hours of support assistance were adequate to facilitate her needs, and said that she had had to forgo treatment because of this.[7]
[7] Respondent’s supplementary documents dated 8 March 2024, pages 757-762
On 5 August 2023, the applicant’s support worker, Kerri Volke, reported in an email to the insurer that the applicant currently required a minimum of 20 hours support each week, in the form of domestic assistance. Ms Volke stated that, before the motor vehicle accident, the applicant required minimal support by comparison to her current care needs. She said that the applicant’s funding was not sufficient to sustain the extra support required due to severe PTSD and other injuries resulting from the accident.[8]
[8] Respondent’s supplementary documents dated 8 March 2024, page 693
On 25 August 2023, the insurer wrote to the applicant, confirming that four hours of support worker assistance per week was approved. The insurer explained the reasons for the insurer’s decision under section 126(2) of the MAI Act to approve treatment and care that is not mentioned in the applicant’s recovery plan, as well as its decision not to approve some of the treatment and care requested.[9]
[9] Respondent’s supplementary documents dated 8 March 2024, pages 763-764
In the letter of 25 August 2023, the insurer indicated that its decision was based on the rehabilitation provider’s assessment “as the reliable evidence rely [sic] on to determine your need for support work services directly related to your motor accident injury.” The insurer stated that the applicant had not provided consent for the insurer to access her NDIS records. It further stated that it did not accept Ms Volke’s opinion that 20 hours of support worker assistance per week was required as a result of the motor accident, because that opinion was not supported by medical evidence and was inconsistent with the rehabilitation provider’s assessment. The insurer referred to the rehabilitation provider’s opinion that it was important for the applicant to reduce her reliance on her support workers as her perceived self-efficacy and independence would improve through engagement in treatment.[10]
[10] Respondent’s supplementary documents dated 8 March 2024, page 769
On 25 August 2023, the applicant emailed the insurer stating that she did not accept the outcome for the transport and activities of daily living (ADL) assessment and that she would like this reviewed.
The insurer confirmed that it would conduct an internal review of that decision.
On 28 August 2023, the applicant emailed the insurer again in relation to its decision regarding transport and care funding and the associated ADL assessment. In that email, she asked the insurer to explain why it considered the opinion of the rehabilitation provider to be “more reliable than the opinions and recommendations made by actual medical professionals qualified/registered to do so.”
On 31 August 2023, the applicant emailed the insurer again, stating “it still appears” that the insurer is “pursuing the advice of an allied health providers [sic] over the recommendations of medical professional and my treating team.”[11]
On 1 September 2023, the internal reviewer emailed the applicant, stating: “I consider the reports relating to your NDIS claim are critical to determining the level of care that is related to your injuries caused by the motor accident.” He asked the applicant to provide him with NDIS reports.
On the same day, the applicant responded, stating that she was working with the National Disability Insurance Agency (NDIA) to provide information but, as her NDIS funding was for autism and ADHD, the present unavailability of that information should not impede the review.
The applicant provided the internal reviewer with more submissions in the form of emails and, on 7 September 2023, sent him a copy of a report from her treating psychiatrist, Dr Javed.
The internal reviewer informed the applicant, by email on 8 September 2023, that the reports were additional information that was not available when the original decision was made, and that an automatic extension of ten business days to complete the internal review was triggered. The applicant replied on the same day, saying the report was in relation to a different review request, that she did not consent to another 10 days, and that the document had been provided to the insurer earlier by her general practitioner.
The internal reviewer provided his decision and report on 8 September 2023, affirming the decision to approve four hours of support worker assistance per week.

Internal review

The internal review report summarised a number of clinical reports which the internal reviewer considered to be relevant to determining what treatment and care was reasonable and necessary. The internal reviewer placed emphasis on the rehabilitation provider’s report of May 2023.
The internal reviewer set out some aspects of the rehabilitation provider’s report which he identified as being “relevant and noteworthy.” The internal reviewer’s summary of the rehabilitation provider’s report referred to the rehabilitation provider’s comments about the applicant’s NDIS funding and its relevance. The internal reviewer’s summary included the following:
Pre-accident care needs
-    You confirmed having access to NDIS funded support before the motor accident.
-    You reported having funding for four (4) hours per week for community participation. The details of the specific funding allowances made by the NDIS were not clear. Further details from the NDIS outlining your care package before the accident would be useful in determining pre-injury allowances.
Post-accident care needs
…
-    You also reported funding for psychosocial recovery, core support, peer support and community participation, ADL support for times of crises and limited support work through the NDIS.
-    You reported your physical injury and the PTSD diagnosis had not been added to you [sic] NDIS plan. Much of the NDI’S [sic] funding was reported to have been used on attending appointments for reports for the insurer.
…
Carer worker support
…
-    Importantly, you had overextended your current care package with NDIS. And you were in debt to the extent of $15,000.0 [sic] to one of the services providers.
-    Ms Spavin [sic] considered it would be valuable to better understand the provisions already in place with the NDIS both currently and prior to the motor accident. Unfortunately, you had not provided consent to access these records form you [sic] Care Coordinator.
-    Ms Spavin [sic] opined that there appeared to be an exacerbation in your symptoms resulting from the motor accident. But it was difficult to quantify considering your pre-existing status and provisions already in place with your long-standing NDIS package.
-    Ms Spavin [sic] considered an allowance of four (4) additional hours of support worker assistance per week was reasonable. This was over and above that which was currently provided by the NDIS.[12]
The internal reviewer provided a summary of findings, acknowledging that the applicant was able to drive before the accident and that she was involved in the community. The internal reviewer noted that “[i]t has been appropriately accepted that the motor accident has materially contributed to the ongoing need for support and domestic assistance.” The report relevantly continued:
Ms Spavins noted it was difficult to assess the needs that relate to the motor accident because she had no information from the NDIS. You have refused to consent for that information to be released to AAMI and have not provide [sic] AAMI with any of reports that you may have in your possession. In the absence of that evidence, Ms Spavins recommended four (4) hours of support in addition to any hours being funded by the NDIS.
I consider the requests for your consent to obtain your NDIS files is reasonable. One can only properly consider what needs relate to injuries caused by the motor accident by being properly informed of the level of care that was provided before the motor accident.[13]
The internal reviewer affirmed the insurer’s original decision; that is, that two hours of domestic cleaning and the assistance of a support worker for four hours per week relate to the injuries caused by the motor accident and are reasonable and necessary. The internal review report indicated that the Decision was made under section 126(2) of the MAI Act.
Following the internal review, the applicant’s recovery plan dated 14 September 2023 made provision for four hours of support worker assistance per week but made no mention of any provision for domestic cleaning.

Tribunal proceedings

The applicant applied to the tribunal for review of the Decision on 5 October 2023.
The Tribunal, differently constituted, made directions in October 2023 requiring the insurer to provide to the applicant and the tribunal documents and information available to it at the time the internal reviewer made the Decision, and required the parties to file any application to rely on any additional information or evidence to that provided by the insurer.
Those directions were made in the context that section 197 of the MAI Act provides, in effect, that the tribunal must only consider the information that was available to the decision-maker when the decision was made, unless it gives a party leave to present information or evidence that was not reasonably available.
On 28 November 2023, the tribunal held another directions hearing. At that directions hearing, the applicant agreed to provide the insurer with a copy of her NDIS care package that applied as at 23 January 2021, and her subsequent NDIS care package, together with details about the hours of support provided under each package. The Tribunal directed the respondent to provide any further documents and made directions for the applicant to file an application to present additional information or evidence, and for that application to be heard.
On 12 February 2024, the applicant lodged an application to present additional information or evidence, being email correspondence with the insurer regarding her defined benefits claim, NDIS expenditures and some other material. On 13 February 2024, the Tribunal determined her application, giving leave to rely upon some of the additional material (such as medical and clinical records) but not all of it.
On 6 March 2024, at a further directions hearing, the Tribunal made timetabling orders and listed the matter for hearing on 1 May 2024. That hearing and further hearings listed for July, August and October 2024 were vacated due to the applicant’s ill health.
A hearing was held on 3 December 2024 before the Tribunal as presently constituted. The applicant appeared at the hearing representing herself and the insurer appeared represented by a solicitor.

Relevant legislation

Subject to specified provisions of the MAI Act, a person injured in a motor accident is entitled to treatment and care benefits for treatment and care expenses.[14] The term “treatment and care expenses”:
[14] MAI Act s 112(1) and (2)
(a) means expenses incurred by the injured person in providing for the injured person’s treatment and care; but
(b) does not include expenses incurred for treatment and care—
(i)that was not reasonable and necessary; or
Note Section 120 deals with deciding whether treatment and care is reasonable and necessary.
(ii)that did not relate to a personal injury sustained in the motor accident; or
(iii)for which the injured person has not paid and is not liable to pay.[15]
[15] MAI Act s 113

The term “treatment and care” includes attendant care services.[16] “Attendant care services” are services that aim to give the injured person assistance with everyday tasks.[17]
[16] MAI Act s 110(1)(a)(vi)
[17] MAI Act s 110(2)
Section 120 of the MAI Act makes provision for deciding whether treatment and care is “reasonable and necessary”. It provides:
120 Deciding whether treatment and care is reasonable and necessary
In deciding whether treatment and care for an injured person is reasonable and necessary, the relevant insurer for the motor accident must consider the following:
(a)     whether the treatment and care is reasonable and necessary in the circumstances;
(b)     whether the treatment and care—
(i)is directly related to the person’s injury; and
(ii)is appropriate for the injury; and
(iii)will benefit the person;
(c)     the appropriateness of a provider of the treatment and care;
(d)     whether the treatment and care is cost effective;
(e)     the MAI guidelines.
The relevant MAI guidelines are the Motor Accident Injuries (Treatment and Care) Guidelines 2023 (Treatment and Care Guidelines). The Treatment and Care Guidelines provide guidance, in clause 6.4, in respect of considering whether treatment and care is reasonable and necessary in a particular case, in accordance with section 120 of the MAI Act.
Section 121 of the MAI Act provides for an insurer to require an injured person to attend a health practitioner for an assessment of the injured person’s treatment and care needs. Subsections 121(1)–(3) of the MAI Act provide:
121 Assessment of injured person’s injuries
(1)     The relevant insurer for a motor accident may require a person injured in the motor accident to attend a health practitioner for an assessment of the injured person’s needs for treatment and care, including a medical or other examination.
Note 1 An injured person must include an authority to disclose personal health information with the person’s application—see s 57.
Note 2 Authority to disclose personal health information—see s 54.
Note 3 Health practitioner—see the Legislation Act, dictionary, pt 1.
(2)     The injured person must comply with any reasonable request made by the relevant insurer in relation to the assessment.
(3)     If the injured person fails, without reasonable excuse, to comply with the relevant insurer’s request, the relevant insurer may suspend either or both of the following until the person complies with the request:
(a)the person’s treatment and care benefits;
(b)the person’s income replacement benefit payments.
Division 2.5.4 of the MAI Act provides for the making of recovery plans. A “recovery plan” is a plan that—
(a) is prepared by the relevant insurer for the motor accident; and
(b) provides for the management and coordination of the injured person’s treatment and care.[18]
[18] MAI Act s 122
An insurer is, in certain circumstances, required to give the injured person and the injured person’s doctor a draft of a recovery plan proposed for the injured person.[19] The insurer may include in the recovery plan any recommendations by the injured person’s doctor for treatment and care that is reasonable and necessary.[20] The relevant insurer must then give the injured person and the injured person’s doctor a final version of the recovery plan.[21]
[19] MAI Act s 123(3)
[20] MAI Act s 123(4)
[21] MAI Act s 123(5)
A recovery plan must state the treatment and care which the insurer has approved as reasonable and necessary treatment and care for the injured person.[22] The insurer is required to review the recovery plan at least once every 13 weeks after the plan is given to the injured person.[23]
[22] MAI Act s 124(a)
[23] MAI Act s 127(1)(a)
The MAI guidelines may make provision in relation to recovery plans, including provision for approval of treatment and care, and treatment and care expenses, under a recovery plan.[24] The Treatment and Care Guidelines make provision, in clause 4.4, for the minimum requirements for a recovery plan.
[24] MAI Act s 125(b)
If the insurer gives an injured person a recovery plan, the injured person must apply to the insurer for approval to undergo treatment and care that is not mentioned in the recovery plan.[25] Under section 126(2) of the MAI Act:
(2) The relevant insurer may approve treatment and care that is not mentioned in the recovery plan if the relevant insurer is satisfied on reasonable grounds that the treatment and care—
(a)is reasonable and necessary in the circumstances; and
(b)will assist with the injured person’s recovery or management of the person’s injury.
[25] MAI Act s 126(1)(a)
An insurer’s decision, made under section 126(2) of the MAI Act, to refuse to approve treatment and care which is not mentioned in injured person’s recovery plan, is an “ACAT reviewable decision”.[26] The applicant, being an applicant for defined benefits, was entitled to apply to the tribunal for review of the ACAT reviewable decision “on a question of law or fact”.[27]
[26] MAI Act s 192, Schedule 1, Part 1.2, item 27
[27] MAI Act s 193(1)(a)
Subsections 197(1)–(3) of the MAI Act provide for the tribunal’s powers on review. Those subsections provide:
197 External review—decision
(1)     In deciding an application for external review of an ACAT reviewable decision, the ACAT must, by order—
(a)affirm the decision; or
(b)amend the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter for reconsideration by the insurer that made the decision (the decision-maker) in accordance with any direction of the ACAT.
(2)     In deciding the application for external review, the ACAT must only consider the information that was available to the decision-maker when the decision was made.
(3)     However, the ACAT may, on application by a party, give the party leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made.
As Presidential Member Robinson observed, after referring to section 197 of the MAI Act and the Explanatory Statement to the Motor Accident Injuries Bill 2019:[28]
Stated briefly, the intention appears to be to encourage the parties to gather all the pertinent information before a decision is made. This is to discourage parties ‘building a case’ for the purposes of the Tribunal hearing, and is consistent with the nature of the review the tribunal is (according to the Explanatory Statement), intended to undertake, which is clearly stated to be a review ‘on questions of law and fact’ only (i.e. ‘only’ a review on questions or law and fact and not a merits review).
[28] Williams v AAI Limited ACN 005 297 807 trading as GIO (Motor Accident Injuries) [2021] ACAT 100 at [50]
To similar effect, Acting Presidential Member Kyprianou commented that “in conducting an external review, the role of the tribunal is to determine whether the reviewable decision is affected by any errors of law or fact.”[29]
[29] Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2022] ACAT 24 at [19]
I respectfully agree with the observations of those members.

Parties’ evidence and submissions

Both parties provided the Tribunal with submissions and an extensive amount of documentary evidence before the hearing.
Applicant’s submissions
The applicant provided written submissions which, in large part, went beyond the scope of relevant matters the Tribunal may consider when determining her application for a review of the Decision. She indicated at the hearing that she had intended to make a complaint about various aspects of the insurer’s conduct and the conduct of others. Consistently with this, she named various persons in addition to the insurer as respondents in her application to the tribunal made on the form “Application for Review of insurer’s decision Motor Accident Injuries Act 2019 (MAI Act)”.
I am satisfied that, while the applicant may have wished to make a broader complaint or to bring proceedings which were broader in scope, she has in fact made a valid application to the tribunal for review of the Decision. That is the application the subject of these proceedings. In these proceedings, the insurer is the only proper respondent as a matter of law.
The applicant made some submissions and provided some evidence which was relevant to her review application. In submissions dated November 2023, the applicant contended that the four hours of support provided by the insurer “was grossly inadequate to cover insurer related appointments let alone all my other ADL and transport needs.” She stated that she was forced to use her NDIS funding to meet those needs, and this meant that she exhausted her NDIS funding before the end of the funded period. The applicant said that she never exhausted her NDIS funding prior to the accident.
The evidence before the Tribunal included NDIS documents provided by the applicant. This material disclosed that, in early 2023, the applicant had been provided with a budget for daily activities totalling 15 hours per week and social community and civic participation totalling 16 hours.
The applicant said in her written submissions and in her oral submissions at the hearing that, before the motor vehicle accident, she was generally able to drive and transport herself independently but has not been able to do so since the accident because of her injuries. That is consistent with the documentary material and the internal reviewer’s findings, and I find that that is the case.
The applicant also submitted that the insurer should not have taken into account her NDIS funding as a reason to refuse the number of hours of attendant care services for which she had applied. She made the following written submissions in relation to her NDIS funding:
I’d like to note; My NDIS functioning is for the Primary diagnosis of High Functioning Autism and Secondary ADHD. NDIS funding is not provided for medical expenses and does not take the place of other schemes or contractual agreements already in place.
Treatment and care benefits for injuries sustained in an MVA including exacerbation of previous conditions is the responsibility of the insurer under the Defined Benefits Scheme and associated MAI legislations.
…
I am not funded for injuries I sustained in the MVA by the NDIA due to my active ‘Defined Benefits’ application. Prior to the MVA I had no evidence of exhaustion of NDIS funding and the funding I did have was never used close to its entirety in any of my plans.
Whilst there has been exacerbation of my preexisting conditions which has been minimally afforded by the NDIA – this funding should have been contributed by the Insurer. The NDIA have denied further funding citing it is the responsibility of other schemes already in place under the relevant legislations and I would agree this is correct.
At the commencement of the hearing, the applicant made similar oral submissions to the effect that the insurer was responsible for paying for treatment and care relating to her motor vehicle accident, and it should not rely upon NDIS funding for this purpose. The applicant put her submission this way:[30]
So the NDIS specifically states that it doesn't recover - cover the - or replace the other - where there's funding for other things. So I've been confused as to - since my motor vehicle accident I've been forced to use my NDIS funding to cover my ADL needs.…
And I guess I do have a moral and ethical dilemma with that because it is so difficult to get NDIS funding. I have a community that identify with me and vice versa and it's extremely hard. I had a motor vehicle accident which it means I have required extensive full-time care since. Basically, I can't allow my needs to be put onto the NDIS while I have an active defined benefits in place.
[30] Transcript of hearing, 3 December 2024, page 7, lines 5-17
After further questioning from the Tribunal, the applicant clarified her position as follows:[31]
My reasoning for having NDIS funding is due to my autism and ADHD. Neither of those conditions were caused by the motor vehicle accident. My funding prior to the MVA was very limited and very little used because I didn't need it. Since my motor vehicle accident I've required daily care. In terms of being able to access the community, if one cannot attend appointments, then by rights they can't attend anything. I drove myself everywhere before the motor vehicle accident so that means, essentially, I didn't need to use that funding because I was independent in my travelling.
Occasionally, if I was unwell or having visual episode or whatever, I would have that funding there, as all NDIS packages do. So since my motor vehicle accident I've exhausted my funding yearly five times. That's incredibly heartbreaking for me knowing that my community are suffering, trying desperately, begging for funding. It is of my belief that the insurer should have paid adequate treatment and care expenses.
[31] Transcript of hearing, 3 December 2024, page 12, lines 43-47 and page 13, lines 1-10.
The applicant stated that she now requires at least eight hours support minimum, on a daily basis, not inclusive of transport.[32]
[32] Transcript of hearing, 3 December 2024, page 13 line 47 to page 14, line 2.
The applicant took the Tribunal, in her oral submissions, to a report made by her treating psychiatrist, Dr Javed, on 30 April 2023.[33] The applicant asked the Tribunal to rely upon this report when considering what treatment and care was reasonable and necessary.
[33] See, for example, transcript of hearing, 3 December 2024, page 27 at line 20 to page 29, line 17
The evidence establishes that this report was available to the decision-maker when the internal review decision was made. The applicant told the Tribunal, at the hearing, that she had provided Dr Javed’s report of 30 April 2023 to the insurer on the day it was written.[34] On 7 September 2023, the applicant emailed the internal reviewer, attaching the report. In his internal review report, the internal reviewer listed the applicant’s email of 7 September 2023 as a document he had considered and stated, at paragraph 27 of his report, that he had read the reports she emailed to him on that date. The applicant told the internal reviewer in an email that she had provided this report to the insurer much earlier. Whether or not this is so, as it was available to the internal reviewer when the decision was made, it is information the Tribunal is entitled to consider.[35]
[34] Transcript of hearing, 3 December 2024, page 26, line 43 to page 27, line 1 and page 29, lines 15–17
[35] MAI Act s 197(2)
Dr Javed’s report of 30 April 2023 was addressed to the NDIA and apparently prepared for it. However, in an email to the insurer of 7 September 2023, the applicant stated that she had not submitted it to the NDIA because she had a current active defined benefits claim for PTSD.
In the report, Dr Javed referred to the applicant’s PTSD and described it as “fully treated and stabilised” and “lifelong.” Dr Javed then stated that, “[d]ue to the permanency of the long-standing illness, Ms Lewis has a severe and substantial psychosocial disability that will require ongoing support.” In response to the question, “Does the person require assistance to be mobile because of their disability?” Dr Javed responded:
Yes, needs assistance from other persons.
Ms Lewis requires assistance from another person to help her mobilise in the community.
Ms Lewis requires a person to transport her to appointments. When she is unwell with PTSD, she cannot concentrate, hypervigilant, panic, anxiety, and is visibly distressed. She is not safe to drive. Ms Lewis needs supervision and assistance to access the community and to attend appointments.
In response to the question, “Does the person require assistance to communicate effectively because of their disability?” Dr Javed responded:
Yes, Ms Lewis needs assistance from other persons.
Ms Lewis requires assistance to understand and respond to written communication. Ms Lewis needs assistance to initiate and respond to communication (via telephone, in person or in writing) with mainstream services.
Due to Ms Lewis’ high level of anxiety and panic, Ms Lewis is unable to process information and act on the information. Ms Lewis requires support from another person to speak to other people on her behalf such as when interacting with banking, doctors and dealing with government organisations.
Ms Lewis needs supervision and assistance to follow instructions, seek help and directions and interact with health professionals and other support and mainstream services.
Dr Javed also expressed the opinion that the applicant needed assistance to interact socially and to learn effectively, as well as assistance with self-care and with self-management because of her disability. Dr Javed noted that the applicant had “significant difficulty with organising tasks, learning new skills, applying knowledge in a variety of situations, memory and concentration” and that she required “assistance from another person to remind her to take her medications,” required “support to manage her numerous appointments” and required support from another person to pick up her medications. Dr Javed expressed the opinion that the applicant: [36]:
needs supervision and assistance to plan daily activities, book and keep appointments, manage finances, pay bills, manage difficult emotions, especially anxiety, manage stressors and changes, solve problems that arise and make decisions.
[36] Transcript of hearing, 3 December 2024, lines 10-14 and page 29
The applicant submitted that Dr Javed’s report justified her claim for more attendant care services. She distinguished, as she had in correspondence with the insurer, between the opinions of experts or medical professionals such as Dr Javed and the opinion of the rehabilitation specialist. She said at the hearing:[37]
If a recommendation is given by an expert or a medical professional, then it should be obliged. However, that hasn't been the case since the start of my claim.
[37] Transcript of hearing, 3 December 2024, page 38, lines 8–11
The applicant submitted that the assessment of the rehabilitation provider was not appropriate. She said that:[38]
the expert, Megan Spavins, had not appropriately assessed and nor did she put in the – I've got a – according to Ms Spavins, I've got a cognitive functioning of 19th percentile. I don't think I'd be sitting here if I did.
[38] Transcript of hearing, 3 December 2024, page 26, lines 25–28
The applicant made various other criticisms of the rehabilitation provider’s report at the hearing.[39]
Insurer’s submissions and evidence
[39] See, for example, transcript of hearing, 3 December 2024, page 51, lines 17–24
The insurer relied upon the materials it had provided to the Tribunal, including the rehabilitation provider’s report and the internal review report. The materials it provided to the Tribunal also included Dr Javed’s reports.
The insurer’s position was that the internal reviewer had not made any error of law or fact. The insurer submitted that the documents the applicant provided about her NDIS care package “did not fully address the criteria set out by the Tribunal in the Order dated 28 November 2023.”
I note that the “Order” to which the insurer referred was a notation at the end of the orders made on 28 November 2023 about what the applicant had agreed to provide to the Tribunal. The notation did not require the applicant to provide the Tribunal with NDIS documents.
The insurer submitted in writing that the additional evidence (being the NDIS documents) did not assist the applicant in establishing any error of fact or law in the Decision. The insurer’s position was that “[t]he factual situation remains as it was as the time of that decision, in that there is no information about the hours of support that were being provided to the applicant by NDIS prior to the accident.” In the insurer’s submission:[40]
although the documents that the applicant has provided from NDIS do not assist in answering the critical question of the applicant’s pre-accident care provision, the documents support the accuracy of the evidence relied on by the internal reviewer, and do not support a finding of error of fact.
[40] Respondent’s submissions dated 30 September 2024 at [46]

Similar submissions were made on the insurer’s behalf at the hearing.[41] Mr Deans, for the insurer, submitted that “the records from the NDIS made available to the tribunal indicate that 31 hours was available prior to the accident”, so that “the planks that underpin [the rehabilitation provider’s] report have been established, in fact, over-established, but established nevertheless, to provide her expert opinion.”[42]
[41] See, for example, transcript of hearing, 3 December 2024, page 21, lines 20–37 and page 24, lines 18–22
[42] Transcript of hearing, 3 December 2024, page 21, lines 33–37
The insurer did not respond to the applicant’s submission that the Tribunal should rely upon the report of her psychiatrist, Dr Javed, other than by way of its general submission that the internal reviewer had not made any error of law or fact.

Consideration

The applicant’s main focus at the hearing was on the issue of the legitimacy of the insurer having regard to her NDIS entitlements when determining what treatment and care is reasonable and necessary.
Her submissions require the Tribunal to determine whether the insurer is entitled to consider an injured person’s funding arrangements under the NDIS when considering whether “the treatment and care” for which an injured person is seeking approval “is reasonable and necessary in the circumstances” within section 126(2) of the MAI Act.
Section 120 of the MAI Act, set out above, provides for the matters which the insurer must consider when deciding whether treatment and care for an injured person is reasonable and necessary. Those mandatory considerations set out in section 120 do not, on their face, invite the insurer to consider an injured person’s NDIS funding.
The question of “whether the treatment and care… is directly related to the person’s injury; and …is appropriate for the injury; and… will benefit the person” (section 120(b)) is focused upon the relationship between the proposed treatment and care and the person’s injury. It does not require or, in my view permit, consideration of other funding which may have been provided to the injured person.
Similarly, the existence or otherwise of NDIS funding is not relevant to a consideration of the appropriateness of the provider and whether the treatment and care is cost effective (MAI Act, section 120(c) and (d)).
The Treatment and Care Guidelines, which must be considered under section 120(e) of the MAI Act, do not indicate that NDIS funding is a relevant consideration. To the contrary, they tend to indicate that it is not.
In relation to the consideration of whether the treatment and care is directly related to the person’s injury in section 120(b)(i) of the MAI Act, those guidelines state:[43]
6.4.1 Directly related to a person’s injuries
Treatment and care will be directly related to a person’s injury if a service relates to an injury caused by the motor accident including the exacerbation of a pre-existing injury. An insurer may consider the time elapsed since the motor accident, and any subsequent injuries or comorbidities, in determining whether treatment and care is directly related to a person’s injury.
[43] Treatment and Care Guidelines, clause 6.4.1
That clause indicates that treatment and care for a pre-existing injury which has been exacerbated by an accident is directly related to the person’s injury from the accident. The guidelines do not suggest that an apportionment approach should be taken (such as by saying that the treatment and care is only reasonable to the extent that it relates to the exacerbation of the injury but not otherwise). Rather, the exacerbation of the injury by the accident is sufficient to establish the relevant direct relationship which makes treatment and care of that entire injury, as exacerbated, reasonable and necessary (subject to other considerations). This is what the applicant referred to in her submissions as the “fragile skull doctrine,” being (in the applicant’s words) that a defendant must “take their victim as they find them.”
The remaining matter the insurer is required to consider, when deciding whether treatment and care for an injured person is reasonable and necessary, is whether the proposed treatment and care is reasonable and necessary in the circumstances (MAI Act, section 120(a)). The wording is circular, but the legislative intention appears to be that the insurer is to consider the particular circumstances of the case when making its decision. In my view, this does not mean that the insurer is entitled to consider whether the injured person has other funding for treating the person’s injuries. That would not be relevant to whether the treatment and care is reasonable and necessary.
Correct approach
The correct approach to deciding whether treatment and care for an injured person is reasonable and necessary, is for the insurer first to identify the applicant’s injuries which were caused or exacerbated by the accident. In order to do so, the insurer may require a person to attend a health practitioner for an assessment of the injured person’s needs for treatment and care.[44] The assessment is to be conducted by an appropriately qualified health practitioner with the expertise to provide the assessment sought.[45] All necessary assessments would ordinarily have occurred before a recovery plan is made, because they would inform the recovery plan.
[44] MAI Act s 121(1)
[45] Treatment and Care Guidelines, clause 3.2.1
Once the appropriate assessments have been conducted, the insurer should be in a position to make findings as to what injuries were caused by the accident, and what injuries (if any) were exacerbated by the accident and, where relevant, the nature and extent of those injuries. These findings should be made before the insurer considers the relevant factors in section 120 of the MAI Act. The statutory task of considering whether proposed treatment and care is directly related to the person’s injury (MAI Act, section 120(b)(i)), for example, presupposes a determination as to what the person’s injuries are.
The making of a recovery plan necessarily precedes any application by an injured person, under section 126(1)(a) of the MAI Act, for approval to undergo treatment and care that is not mentioned in the recovery plan. A recovery plan must include, at a minimum, specified matters which include “the nature of the person’s injuries”, “details of treatment being undertaken” and “details of expected treatment and, if relevant their frequency, to be undertaken.”[46]
[46] Treatment and Care Guidelines, clause 4.4.2
The insurer’s decision as to whether to approve treatment and care that is not mentioned in the recovery plan, under section 126(2) of the MAI Act, would ordinarily be made on the basis that the recovery plan adequately sets out the nature of the injured person’s injuries, the details of treatment being undertaken and the details of expected treatment to be undertaken, and its frequency. There may be some cases in which the applicant disputes one or more of these matters, and the internal reviewer should then address that dispute in his or her reasons. If the recovery plan did not adequately set out matters it is required to set out, the internal reviewer would likely need to make findings about them.
The insurer is required to consider matters set out in section 120 of the MAI Act, when deciding whether the proposed treatment and care for an injured person is reasonable and necessary in the circumstances. That informs the insurer’s state of satisfaction under section 126(2)(a) of the MAI Act. The insurer also needs to consider whether it is satisfied that the proposed treatment and care will assist with the injured person’s recovery or management of the person’s injury.[47]
Internal reviewer’s approach
NDIS funding
[47] MAI Act s 126(2)(b)
As indicated above, the internal reviewer considered the extent of the applicant’s pre-existing NDIS funding to be relevant, when determining whether the attendant care services requested by the applicant were reasonable and necessary. The internal reviewer identified a “relevant and noteworthy” part of the rehabilitation provider’s report as being the provider’s comment that “[f]urther details from the NDIS outlining your care package before the accident would be useful in determining pre-injury allowances.”
The NDIS care package and the applicant’s pre-injury allowances were not relevant to the question the internal reviewer had to determine. Those matters were not probative of the question of whether the attendant care services requested were reasonable and necessary.
The internal reviewer misdirected himself when concluding that:[48]
[o]ne can only properly consider what needs relate to injuries caused by the motor accident by being properly informed of the level of care that was provided before the motor accident.
[48] Respondent’s supplementary documents dated 8 March 2024, page 858
The level of care that was provided before the motor accident was not relevant to whether the proposed treatment was “reasonable and necessary” within sections 120 and 126 of the MAI Act.
It may be that the internal reviewer was seeking to understand the extent of the applicant’s pre-existing injuries, when commenting upon the lack of information about the applicant’s NDIS package. An injured person’s pre-existing injury is relevant to the consideration of whether the proposed treatment and care is reasonable and necessary in the circumstances within section 126(2)(a) of the MAI Act, only to the extent that it assists in determining whether the proposed treatment and care is directly related to the person’s injury under section 120(b)(i) of MAI Act. In other words, treatment and care for an injury which existed before the accident, and which was not exacerbated by the accident, is not reasonable and necessary. However, where a pre-existing injury has been exacerbated by an accident, the treatment and care of the whole injury is directly related to the person’s injury.
Here, the material established that the applicant suffered from autism and ADHD before the accident and acquired PTSD as a result of the accident. The relevant question was what attendant care services were reasonable and necessary as a result of the applicant’s PTSD and as a result of other injuries the applicant suffered because of the motor vehicle accident.
The internal reviewer did not identify the injuries for which attendant care services were required. Nor were these injuries adequately identified in the applicant’s recovery plan dated 15 June 2023 (applicable until 13 September 2023), as required by the Treatment and Care Guidelines. That recovery plan identified the applicant’s “current injury diagnosis” as “right shoulder and cervical injury, right.” The plan did not specify the nature of all of the applicant’s injuries, in accordance with the requirements of the Treatment and Care Guidelines.[49] It did not identify the applicant’s psychiatric or dental injuries, even though the recovery plan indicated that the insurer accepted that the applicant suffered from both.
[49] Treatment and Care Guidelines, clause 4.4.2
The lack of clarity in the recovery plan as to the nature of the applicant’s injuries probably fostered a similar lack of clarity in the internal reviewer’s report about the nature of the applicant’s injuries. At no point in the report did the internal reviewer clearly identify all of the applicant’s injuries which the insurer found to have been caused by the accident, nor make any findings about whether those injuries continue to affect the applicant.
When determining what attendant care services were reasonable and necessary, it was incumbent upon the internal reviewer to determine:
(a)what the applicant’s injuries were;
(b)what appointments the applicant would need to attend in relation to her injuries;
(c)whether the applicant needed assistance with the task of attending appointments; and
(d)more generally, the extent to which services that aim to give the applicant assistance with everyday tasks were reasonable and necessary, having regard to the applicant’s injuries.
The internal reviewer did not do this. This made it very challenging for him to correctly undertake the statutory task of considering whether the attendant care services were reasonable and necessary and, in particular, whether they were directly related to the applicant’s injury or injuries.
The internal reviewer’s reasons indicate that, although he accepted that the motor accident materially contributed to the applicant’s ongoing need for support and domestic assistance, he only considered the support and assistance to be reasonable and necessary to the extent that it was not already covered by the applicant’s NDIS funding. That discloses an error of law.
The conclusion that a person’s entitlement to NDIS funding is not a factor limiting the person’s entitlement to treatment and care benefits, follows from the analysis of the relevant provisions of the MAI Act above. It also gains some support from the broader statutory context. Express provision is made disentitling injured persons from treatment and care benefits in certain circumstances where they have other specified entitlements. For example, a person’s entitlement to relevant defined benefits ends on the day on which the person’s claim for workers compensation, relating to the injury, is accepted or settled.[50] Similarly, a person is not entitled to treatment and care benefits for treatment and care expenses if the person is a participant in the LTCS scheme in relation to the injury.[51] There is no comparable provision limiting entitlement to treatment and care benefits in circumstances where the injured person receives NDIS funding.
[50] MAI Act s 50(2)
[51] MAI Act s 118
I also observe that the National Disability Insurance Scheme Act 2013 (Cth) evinces a legislative intention that NDIS support is not to be used to provide treatment and care for injuries in respect of which a person is entitled to compensation under a statutory scheme. Chapter 5 of that Act makes provision for the CEO (that is, the Chief Executive Officer of the NDIA) to take action to claim or obtain compensation. Further, rules made under that Act provide for the CEO to revise a participant’s plan where:
the person is receiving compensation under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme.[52]
[52] National Disability Insurance Scheme (Supports for Participants—Accounting for Compensation) Rules 2013 (Cth), rules 3.1(c) and 3.4.
This provides a further reason, if one were needed, as to why it is erroneous to consider an injured person’s NDIS funding when determining whether proposed treatment and care is reasonable and necessary.[53]
[53] On a related issue, as to the relevance of NDIS payments to recovery of motor accidents compensation in New South Wales, see Youssef v Bevchain Pty Ltd [2023] NSWDC 313
For reasons given above, the internal reviewer constructively failed to exercise jurisdiction by misdirecting himself as to his task under section 126(2) of the MAI Act when considering the applicant’s NDIS funding. The New South Wales Court of Appeal has explained the meaning of a constructive failure to exercise jurisdiction as follows:[54]
The premise underlying a “constructive” failure to exercise jurisdiction is that there has been an apparent exercise of the jurisdiction of the court, but one that has failed in a way which can only be teased out by reference to the underlying issues and the materials presented to the court.
[54] Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 at [6]
A constructive failure to exercise jurisdiction includes a constructive failure on the part of the officer or authority concerned to exercise the functions and powers conferred by legislation,[55] as occurred in this case.
[55] Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 at [10], citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [81]
The error materially affected the Decision and it should, for that reason, be set aside.
If I am wrong to conclude that the internal reviewer erred in his approach to the applicant’s NDIS funding, I consider that the Decision is affected by another material error, for reasons given below.
Reliance on opinion of occupational therapist
The internal reviewer also erred in relying upon the opinion of an occupational therapist as to the applicant’s needs for attendant care services in circumstances where the occupational therapist did not have the relevant expertise to provide that opinion.
The Treatment and Care Guidelines provide that, if an assessment of a person’s injuries is conducted, it is to be conducted by an appropriately qualified health practitioner with the expertise to provide the assessment sought.[56] The rehabilitation provider who conducted the assessment was an occupational therapist and was not “appropriately qualified” to assess the applicant’s cognitive difficulties or her needs relating to her psychiatric injury. The applicant’s request for attendant care services was directly related to her PTSD. In these circumstances, the assessment should have been conducted by a psychiatrist or, possibly, a psychologist.
[56] Treatment and Care Guidelines, cl 3.2.1
The internal reviewer quoted the rehabilitation provider as finding that the applicant:
(a)experienced significant difficulties with daily routines and self-care activities due to low energy levels and motivation associated with anxiety and depression;
(b)had difficulties with cognitive abilities including decision-making, planning and executive functioning which affected the applicant’s ability to complete tasks and maintain focus;
(c)experienced challenges in managing time and organising daily tasks;
(d)had impaired ability to plan and complete household chores independently;
(e)had difficulties in managing finances and transportation.
To the extent that the applicant had cognitive difficulties and a psychological condition affecting her executive functioning, her ability to drive, and her ability to communicate, the rehabilitation provider (an occupational therapist) did not have the relevant expertise to provide an assessment of the applicant’s treatment and care needs. The rehabilitation provider administered a test to determine the applicant’s level of depression, and another to determine her cognitive function. Such screening tests are appropriately conducted by a psychologist or a psychiatrist.
The rehabilitation provider’s opinions that only four hours of support were required initially, and that the applicant’s level of support on her support worker should be reduced over time, were not based on that practitioner’s specialised knowledge. That is because the primary issue was what was reasonable and necessary as a result of the applicant’s psychiatric injury of PTSD. The opinion of a psychiatrist or psychologist was required to determine what treatment was reasonably required with respect to the applicant’s psychiatric condition, and whether her need for assistance would diminish with time. A psychiatrist would also have the expertise to determine the extent to which defects in executive function were caused by a pre-existing condition such as ADHD, and the extent to which they were caused by PTSD.
The internal reviewer referred to the reports of Dr Llew Lewis, psychiatrist, dated 3 February 2022 and Dr Scott Chambers, psychiatrist, dated 13 July 2022. Dr Lewis did not address and apparently was not asked to address the cause of any cognitive issues experienced by the applicant. Dr Chambers anticipated that the applicant’s PTSD would stabilise in the next 6–12 months, but that there may be low-grade PTSD symptoms in the future. Dr Chambers did not consider the applicant’s cognitive difficulties in his report. In any event, the report was more than a year old by the time of the internal review.

When the internal review was completed, on 8 September 2023, the reports of Drs Lewis and Chambers were both out-of-date as they did not reflect the applicant’s current psychiatric condition. The applicant was continuing to experience PTSD to a significant degree, as well as cognitive difficulties.
In Dr Javed’s report of 30 April 2023, and many of her other reports, Dr Javed identified that the applicant suffered from various psychiatric conditions including autism spectrum disorder and ADHD, and chronic PTSD for the last two years following the motor vehicle accident.
The internal reviewer did not discuss Dr Javed’s report of 30 April 2023, or any of her other reports, in his internal review report. He listed the applicant’s email of 7 September 2023 as a document he had considered and stated, at paragraph 27 of his report, that he had read the reports she emailed to him on that date (which included Dr Javed’s report of 30 April 2023). He then stated that he had emailed the applicant on the following day “noting that the reports you provided were additional information that was not available at the time of the original decision.” He also noted that “an extension of 10 days applied for completing the internal review” (which was due to be completed on 8 September 2023). In the applicant’s reply, she said that the insurer had the reports in the clinical records.
It may be inferred that the internal reviewer did not take Dr Javed’s reports into account. There is no discussion of her opinions in his 15-page report, even though the internal reviewer made a brief reference to the report of 30 April 2023.
It is not necessary to me to decide whether the internal reviewer was required to take Dr Javed’s reports, or any of them, into account. The internal reviewer’s reliance upon the opinion of an occupational therapist, which the occupational therapist was not qualified to give, as the basis for finding that four hours of attendant care services were reasonable and necessary, constituted an error of law.

Appropriate orders

The internal reviewer made an error of law which is material to the Decision. Accordingly, it is appropriate to set aside the Decision pursuant to section 197(1)(c) of the MAI Act.
When setting aside a decision, the Tribunal may either make a substitute decision or remit the matter for reconsideration by the insurer.[57] Given that the Decision was made in September 2023, affirming an earlier decision made in August 2023, there is a public interest in finalising the review as soon as possible.
[57] MAI Act s 197(c)
Dr Javed’s report of 30 April 2023 indicated that the applicant needed assistance and support to manage self-care activities of daily living. As mentioned above, in Dr Javed’s opinion, the applicant required assistance and support from another person to remind her to take her medications, to manage her numerous appointments and to pick up her medications. The applicant needed to take medications daily. Dr Javed listed thirteen medications with which the applicant was treated, in her report.
Dr Javed’s report of 30 April 2023 indicates, and I find, that the proposed treatment and care (attendant care services) is directly related to the applicant’s PTSD, a psychological injury caused by the accident, that it is appropriate for the injury and that it will benefit the applicant.[58]
[58] See MAI Act s 120(b)
The recovery plan of June 2023 (valid until 14 September 2023) indicated that the insurer had approved GP consultations, 10 physiotherapy sessions (three remaining), an initial psychological consultation, 24 soft tissue therapy sessions (none yet undertaken) and five prolotherapy sessions (three remaining), as well as an occlusal splint and botox, and root canal treatment and bridges. A conservative estimate of the number of appointments the applicant needed to attend per week is two and a half (that is, two per week for one week each fortnight and three every other week). The internal reviewer accepted that the minimum hours per session for a support person is two hours and that the typical allowance is four hours to allow for travel to an appointment.
I find, on the basis of Dr Javed’s report, the recovery plan and other material before me that the applicant required, as a result of the PTSD caused by the accident, on average two and a half x four hour sessions per week with a support person, to support her in travelling to and attending appointments. That makes a total of ten hours per week, on average.
The applicant’s reasonable treatment and care needs also included time with a support person each day to assist her with communication, including interacting with banks, health care professionals and government organisations, and to assist her with self-care and with self-management in planning and undertaking daily activities. Three hours per day, on the days she did not attend appointments, is a conservative estimate. She did not attend appointments on an average of 4.5 days per week. That makes a total of 13.5 hours per week for attendant care services which do not comprise taking the applicant to appointments.
Those hours of attendant care services are all reasonable and necessary, having regard to each of the factors in section 120 of the MAI Act.
I am satisfied on reasonable grounds, for reasons given above, that twenty-three and a half hours per week of attendant care services is reasonable and necessary in the circumstances and will assist with the applicant’s recovery or with the management of the applicant’s injuries.
Accordingly, I make a substitute decision for the purposes of section 126(2) of the MAI Act, pursuant to section 197(1)(c)(i) of the MAI Act, that twenty-three and a half hours per week of attendant care services is approved.
As mentioned earlier in these reasons, the insurer is required to review a recovery plan every thirteen weeks. The applicant stated in the hearing that she now needs eight hours per day of attendant care services. If she were to make another application to the insurer under section 126(1) of the MAI Act for approval to undergo treatment and care that is not mentioned in her recovery plan, more recent medical evidence may indicate that a different number of hours is reasonable and necessary in the circumstances.
………………………………..

Presidential Member J Lucy

Date(s) of hearing:	3 December 2024
Applicant:	In person
Solicitors for the Respondent:	Moray & Agnew Lawyers