Lieberman v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 310
•20 June 2025
PERSONAL INJURY COMMISSION
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Lieberman v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 310 |
CLAIMANT: | Lieberman |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
MEMBER: | Belinda Cassidy |
DATE OF DECISION: | 20 June 2025 |
CATCHWORDS: | Motor Accident Injuries Act 2017 (MAI Act); Personal Injury Commission Act 2020 (PIC Act); dispute about claim for reasonable and necessary travel expenses to attend treatment appointments under section 3.24(1)(b) of the MAI Act; claimant sought approval for ongoing travel assistance (private not public transport) to attend treatment appointments (physio, hydro, doctors, psychologist); insurer refused; internal review affirmed original decision; matters referred to Commission as medical assessment but referred to member under Schedule 2(3)(n) of the MAI Act; insurer alleged Commission had no jurisdiction on basis section 3.24(1)(b) of the MAI Act concerns expenses incurred (past) not ongoing (future) expenses; travel to treatment must be for treatment agreed or found to be reasonable and necessary and accident related; past travel expenses had not been sought from insurer; had not been denied by insurer and had not been referred for internal review by insurer as required by s 7.41(1) of the MAI Act; Held – Commission had no power to determine dispute; proceedings dismissed under section 54(b) of PIC Act. |
DETERMINATIONS MADE: | Proceedings dismissed. |
INTRODUCTION
Ms Lieberman was involved in a motor vehicle accident on 9 August 2022. She was a pedestrian standing near a pole. She was hit by a car (or possibly debris from a car) which had collided with another car before hitting the pole where the claimant was standing. Ms Lieberman fell to the ground after the accident.
Ms Lieberman was injured and made a claim for statutory benefits against NRMA the third-party insurer of the vehicle she says caused the accident. Her claim was made under the Motor Accident Injuries Act 2017 (the MAI Act). NRMA has accepted liability for the claim and has been paying Ms Lieberman her statutory benefits.
At some time after making her claim, Ms Lieberman requested the insurer pay her “ongoing transport assistance to and from treatment services providers” by private car as opposed to public transport pursuant to s 3.24(1)(b). The insurer rejected her request.
Ms Lieberman referred the dispute to the Personal Injury Commission (the Commission) on
29 October 2024. The referral was made as an application for medical assessment of a treatment dispute. The proceedings were allocated to me by the President or his delegate under Schedule 2(3)(n) of the MAI Act as there is no specific jurisdiction created in Schedule 2(1), (2) or (3) for Merit Reviewers, Medical Assessors or Members to determine disputes concerning statutory benefits payable under s 3.24(1)(b).
I have held three preliminary conferences in the proceedings on 3 March 2025, 8 May 2025 and 19 June 2025.
LEGISLATIVE FRAMEWORK
General background to statutory benefits for treatment and care and related expenses
Statutory benefits payable by the “relevant insurer” in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
Section 3.24(1), which is in Division 3.3 establishes the entitlement to treatment and care benefits 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)…”[1]
[1] Section 3.24(1)(c) concerns the insurer’s liability to pay for the travel and accommodation expenses of carers or parents accompanying injured children or those who need support to attend treatment.
What is “treatment and care” is defined in s 1.4 of the MAI Act. There are 11 different types of treatment, care, support or service listed with a regulation-making power to include other things or exclude things from the definition.
There are a number of limits and restrictions to what can be claimed as a statutory benefit under Division 3.4 starting with s 3.24(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.”
Other limits and restrictions include:
(a) section 3.25 provides that no statutory benefits are to be paid for gratuitous care;
(b) section 3.27 requires treatment and care expenses to be verified and there are provisions in the Motor Accident Guidelines about this, and
(c) section 3.28 provides for the cessation of statutory benefits after 52 weeks for a person with threshold injuries or if they were wholly or mostly at fault.
Resolution of disputes about treatment and care
Part 7 of the MAI Act provides for the resolution of disputes that arise in statutory benefits (and damages) claims.
Schedule 2 of the MAI Act recognises 47 different dispute types and declares some to be merit review matters determined by Merit Reviewers (under Division 7.4), others to be medical assessment matters determined by Medical Assessors (Division 7.5) and others to be miscellaneous claims assessment matters which are determined by Members of the Commission (Division 7.6).
Relevantly to disputes about treatment, Schedule 2:
(a) cl 1(i) declares the following to be a merit review matter – “whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of s 3.24(1)”;
(b) cl 1(k)[2] declares that a dispute about “whether treatment and care expenses have been properly verified for the purposes of s 3.29” is a merit review matter;
(c) cl 2(b) declares the following to be a medical assessment matter - “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”, and
(d) cl 3(n) declares the following to be a miscellaneous claims assessment matter - “any issue of liability for a claim, or part of a claim for statutory benefits not otherwise specified in this Schedule.”
[2] Other merit review matters include disputed about whether expenses have already been paid or recovered (cl 1(n)), whether costs exceed any limit imposed in the Guidelines (cl 1(p)), whether treatment has occurred outside Australia (cl 1(q)) and so on;
There is no specific or explicit power given to Merit Reviewers or Medical Assessors to determine disputes under s 3.24(1)(b) about the reasonable and necessary travel and accommodation expenses incurred to obtain treatment. As such a dispute concerns the liability of the insurer to pay benefits in the statutory benefits claim, these disputes are referred to Members for determination in accordance with Schedule 2(3)(n).
INSURER’S DECISION MAKING AND SUBMISSIONS
It is not clear when the claimant requested the “ongoing transport assistance to and from treatment service providers.”
The insurer declined the requested assistance in a letter dated 23 September 2024 on the bases that the “treatment request is not considered reasonable and necessary.” The insurer relied on a report Dr Rastogi, psychiatrist who had reported that before the accident the claimant did not drive and used public transport.
On 3 October 2024 the insurer conducted the internal review after a request from the claimant. The insurer affirmed the original decision saying:
(a) before the accident the claimant did not drive and used public transport;
(b) the claimant can take public transport, but it is time consuming, and issues can arise with timetabling;
(c) she prefers her husband to drive her, and
(d) that “future transport assistance to medical appointments is not considered reasonable and necessary treatment”.
In the submissions lodged with the application for assessment the claimant noted that she “is not located near public transport and is unable to walk to the nearest train station.”
The claimant says the insurer has an obligation to facilitate the claimant’s access to treatment.
In the submissions lodged with the reply, the insurer repeated that the claimant did not drive and used public transport in the past, that she has demonstrated she is able to use public transport when her husband is not available and therefore “there is no reason why she cannot continue to use public transport.”
On 29 May 2025, before the third preliminary conference, the claimant lodged further submissions repeating the previous submissions but also relying on the following:
(a) a report from Ms Verral, treating physiotherapist dated 21 May 2025 who supported the provision of transportation services generally and says that the claimant has missed treatment due to issues getting transport to her clinic, and
(b) a report from Ms Green, treating psychologist dated 28 May 2025 who reports that the claimant is “unable to drive or use public transport independently” and that the claimant has been missing medical appointments due to transportation difficulties.
WHAT IS IN DISPUTE?
In accordance with s 3.24(1)(b), in order to be payable by the insurer, travel expenses must be:
(a) reasonable and necessary;
(b) incurred by the claimant, and
(c) to obtain treatment and care for which statutory benefits are payable.
The claimant provided on 28 May 2025 a schedule of about 180 visits made to obtain treatment from:
(a) her general practitioner;
(b) specialists including an orthopaedic surgeon and an ear nose and throat surgeon;
(c) physiotherapists in Ermington, West Ryde, Bondi Junction and Matraville;
(d) psychologist MsGreen;
(e) pelvic physiotherapy and hand physiotherapy;
(f) radiological investigations, and
(g) hydrotherapy.
The schedule provides the date, the name of the treatment provider, the means of transport (public, taxi or husband’s car) and the distance travelled. The schedule does not provide details of the cost claimed and is not accompanied by invoices, accounts or receipts.
All of the travel occurred in the past from 16 September 2022 to 26 March 2025.
What does “incurred” mean?
The word “incurred” was considered by Justice Wright in AAI Limited trading as GIO v Moon,[3] when interpreting s 8.10 of the MAI in an argument about legal costs:
“[109] The requirement in s 8.10(1) that legal costs must be ‘incurred’ before they are recoverable under the section raises the question of when and in what amount a claimant for statutory benefits has ‘incurred’ legal costs in relation to the claim.
[110] The context of s 8.10 and the fact that what is being incurred are legal costs, indicate that the relevant, ordinary English meaning of ‘incur’ is ‘to become liable for or subject to’ and, in particular, to become liable to pay costs for legal services provided to the person in question.
[111] Accordingly, in the context of charging and recovering legal costs as found in s 8.10, it can properly be said, in my view, that where the claimant has an actual liability to pay legal costs for services provided by a lawyer and the lawyer who provided the services has a corresponding entitlement to payment, the relevant costs have been ‘incurred’ by a claimant. Absent an existing entitlement to payment, the costs would not be said to have been ‘incurred’. It is not necessary, however, that the claimant has actually paid the legal costs. An actual liability to pay, with the concomitant entitlement to be paid, is sufficient.”
[3] [2002] NSWSC 714.
Section 3.24(1)(b) establishes the entitlement to payment and subject to the amount of the payment being reasonable and necessary and the destination of the travel (to obtain treatment and care), the insurer has a liability to pay for it. But the word “incurred” is past tense. It does not establish an entitlement to the payment of all future travel expenses to obtain treatment and therefore does not enable the claimant to seek payment of travel expenses on an ongoing basis (as she originally requested).
It may be that there is a dispute between the parties about services provided (past) or to be provided (future) to the claimant for transport other than transport to her treatment appointments, for example travel to the shops or travel to her children’s school or social engagements. Such a dispute may involve a medical assessment matter if travel services are considered a form of attendant care services. If that were the case a Medical Assessor would be required to determine whether the claimant’s requested transport services can be provided by public transport providers or needs to be provided by private transport providers (including the claimant’s husband in his car).
Any dispute about the cost of transport services for travel that is not travel to treatment appointments would be a merit review matter.
The power of a Member to determine a dispute about travel and accommodation expenses is limited to the expenses incurred in obtaining treatment and care. It is, in my view, clearly a power to determine a sub-set or specific form of past travel and not future travel expenses or ongoing travel generally.
What is “treatment and care for which statutory benefits are payable?”
The treatment and care for which statutory benefits are payable are:
(a) treatment and care the insurer agrees to fund under s 3.24(1)(a) and presumably under s 3.31(3);
(b) treatment and care which a Medical Assessor has determined is payable, that is treatment and care that is reasonable and necessary in the circumstances and related to the injuries caused by the accident, and
(c) treatment and care which is not otherwise excluded by any of the provisions of Division 3.4 or Part 3 (for example treatment and care provided outside Australia).
In Ms Lieberman’s whole person impairment dispute, Medical Assessor Izzo determined the claimant’s urinary incontinence was not related to the accident and he found no impairment attributable to that condition. While Medical Assessor Izzo was not asked to determine a treatment dispute, it may be that on the basis of his decision (and any other available evidence) the insurer might argue it is not liable for any of the claimant’s travel to see the pelvic physiotherapist who treats her urinary incontinence.
However, as Medical Assessor Cameron has determined that an MRI of the claimant’s brain is treatment that is reasonable and necessary and related to the accident-caused-injuries, the insurer is required to pay for the claimant to attend and have that MRI. Whether the claimant travels by public transport or private car to get that MRI is not a medical assessment matter but is a dispute under s 3.24(1)(b) that requires medical evidence about whether the claimant can travel by public transport or whether she must travel by private transport.
A dispute under s 3.24(1)(b) may not be a medical assessment matter but it is a matter that requires medical evidence.
IS THERE A DISPUTE? AND CAN THESE PROCEEDINGS BE MAINTAINED?
The three preliminary conferences
At the first preliminary conference, on 3 March 2025, the dispute was discussed and the requirements of s 3.24(1)(b) were considered. Directions were issued to the claimant seeking:
(a) a copy of the request for transport assistance;
(b) details of the appointments the claimant had attended and the claim for travel made, and
(c) evidence and updated submissions.
The NRMA’s legal representative was asked to the confirm whether the insurer agreed or disagreed that any of the appointments listed by the claimant were treatment and whether the travel to obtain that treatment were within the scope of the dispute. The insurer was also asked for evidence and updated submissions.
A further preliminary conference was held on 8 May 2025. The claimant had not complied with the directions and so the insurer was unable to provide its submissions and directions similar to the first were issued.
The claimant’s documents and submissions were filed late in the piece and no response was received from the insurer before the third preliminary conference. At that conference, on 19 June 2025, the insurer was asked about their response and Mr Gil raised an issue as to the Commission’s jurisdiction.
Mr Gil submitted on behalf of the insurer:
(a) section 3.24(1)(b) and Schedule 2(3)(n) permits a Member to assess disputes about the cost of travel to obtain treatment, where expenses have been incurred, therefore the Commission only has power to determine whether past travel expenses incurred are reasonable and necessary;
(b) section 3.24(1)(b) and Schedule 2(3)(n) does not give a Member power to determine whether ongoing (and therefore future) travel expenses not yet incurred are reasonable and necessary, and
(c) the claimant has now particularised the past treatment and travel to obtain it, but the claimant has not formally requested the insurer pay for the past and incurred travel expenses and any decision made by the insurer about that has not been through the internal review process.
Mr Gil then submitted on behalf of NRMA that the Commission has no jurisdiction to deal with the dispute about expenses unless and until NRMA conducts its internal review or refuses to conduct an internal review.
The claimant’s legal representative was asked what her attitude was to the insurer’s submission as to jurisdiction. While Ms Park agreed that the proceedings should be dismissed, she did request I provide brief reasons.
Why the proceedings should be dismissed?
Under Division 7.6 of the MAI Act, in particular s 7.41(1), a decision made by an insurer must be internally reviewed (in accordance with Division 7.3) before the dispute can be referred to the Commission for assessment or determination. Clearly the aim of an internal review is to resolve some disputes within the insurance company and therefore spare the parties, and the motor accident and insurance scheme the cost associated with external dispute resolution at the Commission.
Some decisions made by insurers do not need to be referred for internal review and they are listed in Division 1 of the Motor Accident Regulation 2017. The only miscellaneous claims assessment matter listed in the Regulation is at cl 11 concerning disputes about which insurer is the relevant insurer for the purposes of s 3.3 of the MAI Act. Schedule 2(3)(n) disputes are not listed in cl 11 or elsewhere in that Division of the Regulation and therefore, s 3.24(1)(b) disputes must proceed along the internal review pathway before coming to the Commission.
The original request made by Ms Lieberman for ongoing (future) transport assistance did go through the internal review process. Her claim for reimbursement of past travel expenses incurred in obtaining treatment has not been the subject of a request to the insurer and has not been the subject of any decision by the insurer which could be the subject of an internal review.
Ms Lieberman has to some extent now particularised her claim for travel to treatment appointments. I agree with the insurer that she has not particularised the cost of the travel by private car (claimed by way of mileage) or provided invoices, accounts and receipts that verify expenses that were incurred by public transport or taxi.
Ms Lieberman has also now provided some evidence in support of her claim however the insurer has provided no medical evidence in response.
CONCLUSION
These proceedings are dismissed under s 54(b) of the Personal Injury Commission Act 2020 on the basis that they are misconceived or currently lacking in substance.
It may be the parties will be able to resolve the issue about the travel expenses claimed and therefore there may be no need for an internal review or any further referral to the Commission. If, however, the parties are unable to resolve their differences, then a referral to the Commission can be made at some stage in the future.
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