Meneses v Lifetime Care and Support Authority of New South Wales
[2024] NSWPIC 428
•9 August 2024
| 0CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Meneses v Lifetime Care and Support Authority of New South Wales [2024] NSWPIC 428 |
| CLAIMANT: | Felipe Gomez Meneses |
| INSURER: | Lifetime Care and Support Authority |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 9 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); section 1.4; claim for statutory benefits; dispute about provision of a service or assistance animal; claimant requested an animal; his GP had given him a referral to a supplier; supporting evidence from GP, psychologist and physiotherapist; State of NSW (Central Coast Local Health District) v Bunce and Rose v Health Commission (NSW) referred to; Held – a service or assistance animal comes within the meaning of “rehabilitation” as defined in the MAI Act and is therefore a form of treatment; whether service or assistance animals were “aids or appliances” and therefore treatment considered but not determined; matter referred for medical assessment of whether the proposed treatment is reasonable and necessary and related to the injuries caused by the accident. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 and schedule 2(3)(n) of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The provision of a service or assistance animal to an injured person is “rehabilitation” and therefore a form of “treatment and care” as defined in s 1.4 of the Act. 2. The proceedings are returned to the Commission for medical assessment in accordance with Division 7.5 and schedule 2(2)(b) of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Background to the dispute
Felipe Meneses was involved in a motor accident on 19 June 2018. He was stationary in traffic when he was hit from behind apparently at speed.
Mr Meneses made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against GIO the third-party insurer of the motor vehicle Mr Meneses believed caused the accident.
As it is now more than five years since the accident, in accordance with s 3.2(3) of the MAI Act, the Lifetime Care and Support Authority (LCSA) is the relevant insurer and liable for the payment of Mr Meneses’ statutory benefits. LCSA is managed by iCare which pays benefits through the program CTP Care. For convenience I will refer to the LCSA, iCare and CTP Care as “the insurer” throughout these reasons.
A dispute has arisen in connection with the claim about the provision of a “companion” animal as part of the claimant’s treatment, recovery and rehabilitation regime.
Insurer decision making
On 13 November the claimant requested the ‘treatment’ from the insurer.
On 22 November 2023, the insurer wrote to the claimant saying:
“The request for funding of a companion animal is not considered treatment and care under Section 1.4 … and therefore is unable to be funded by CTP Care.”
The claimant requested an internal review of that decision and on 11 December 2023. The insurer issued an internal review certificate confirming the original decision. The internal reviewer said that insurer can only approve services that are reasonable and necessary and set out some criteria. The officer said, “what is reasonable and necessary can differ from person to person, even for the same type of injury. As such we consider requests on a case-by-case basis.”
The decision gives reasons for the rejection:
(a) the companion animal is not treatment;
(b) the claimant has been diagnosed with PTSD but has not had treatment since 2022;
(c) the insurer approved a consultation with Mr Anthony, psychologist for review.
Procedural matters
The claimant referred the dispute to the Personal Injury Commission (the Commission) for medical assessment and determination.
The proceedings have been allocated to me, as a Member of the Commission to determine a preliminary issue about whether a service or assistance animal falls within the definition of “treatment and care” and therefore whether there is a medical dispute that could be referred to a medical assessor.
I held a teleconference with the parties to discuss the dispute. Mr Meneses was self-represented. LCSA was represented by Ms Tancred. Also present was Lauren Kleiman from the Authority.
I explained to the parties why it was that the proceedings had been referred to me.
I indicated that if I found service or assistance animals generally do not fall within the definition of treatment and care in the legislation, the proceedings would likely be dismissed. As there would be no “treatment” there would be nothing for a medical assessor to determine and nothing for a merit reviewer to determine.
I indicated that if I found service or assistance animals generally can be a form of treatment, then there may be a medical dispute about whether the provision of an animal to Mr Meneses is reasonable and necessary in the circumstances or related to the injuries caused by the accident and there may be a merit review matter about the cost of the dog, its training and upkeep. All of which would be predicated upon the basis that Mr Meneses is assessed as being a suitable candidate for a dog, that a suitable dog is found for him and so on.
I drew to the parties’ attention the following:
(a) the Companion Animals Act 1998 (NSW) distinguishes between a companion animal, an assistance animal and a working dog;
(b) the Disability Discrimination Act 1992 (Cth) defines assistance animal as a dog which is accredited and trained to provide assistance to people with a disability to alleviate the effect of that disability;
(c) guide dogs are an example of assistance dogs and there are other programs that provided assistance animals, companion animals or pets as therapy, and
(d) the definition of treatment and care in the legislation lists 11 things that can be treatment and care. Whether a service or assistance dog could be an aid and appliance within that definition or rehabilitation was discussed.
Mr Meneses confirmed at the teleconference that he was seeking a service or assistance dog.
I directed the insurer to provide submissions on the preliminary point about whether service or assistance dogs generally can be considered treatment, and I provided the claimant with time to respond.
It was agreed the dispute could be determined on the papers.
LEGISLATIVE FRAMEWORK
Claims for statutory benefits
The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act.
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Section 3.24 provides for the payment of treatment and care expenses as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
…
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
(3) The Motor Accident Guidelines may provide for—
(a) circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and
(b) circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2).”
Section 1.4 of the Act provides a definition of “treatment and care” as follows:
“treatment and care means the following—
(a) medical treatment (including pharmaceuticals),
(b) dental treatment,
(c) rehabilitation,
(d) ambulance transportation,
(e) respite care,
(f) attendant care services,
(g) aids and appliances,
(h) prostheses,
(i) education and vocational training,
(j) home and transport modification,
(k) workplace and educational facility modifications,
(l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,
but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”
Dispute resolution of treatment disputes
In a statutory benefits claim, disputes can be resolved by merit reviewers, medical assessors and Members of the Commission. Schedule 2 to the MAI Act declares certain matters to be merit review matters, others to be medical assessment matters and others to be claims assessment matters.
In the context of a dispute about treatment:
(a) Schedule 2(1)(i) declares as a merit review matter “whether the cost of treatment and care … is reasonable for the purposes of section 3.24(1)”, and
(b) Schedule 2(2)(b) declares as a medical assessment matter “whether any treatment and care … is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24.”
A Merit Reviewer is specifically empowered to determine disputes about the cost of treatment and care under s 3.24(1)(a). Medical Assessors are specifically empowered under s 3.24(2) to determine that claimed treatment and care is not reasonable and necessary or related to the accident caused injuries. Neither of those two clauses provides specific jurisdiction to determine whether a disputed thing or service is “treatment and care”. There is nothing elsewhere in the Schedule that gives specific jurisdiction to any decision maker to determine whether something or some service is or is not treatment and care.
Schedule 2(3)(n) however provides a Member of the Commission with power to determine “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”.
In my view in accordance with that provision I have the power, as a Member, to determine whether the provision of a companion animal is “treatment and care” within the meaning of the definition in s 1.4 and whether the insurer may be liable for to pay for it, as part of Mr Meneses’ statutory benefits claim.
SUBMISSIONS FROM THE PARTIES
Claimant’s submissions
In his application to the Commission, Mr Meneses said that he:
“Request your assistance in reviewing a decision made by my insurance company regarding my application for a companion animal. Despite providing sufficient documentation and meeting the necessary criteria, my request was denied. I believe this decision was unfair and unjust, and I am seeking your help to have it reversed.”
He asked for the Commission to review his case, advocate on his behalf, reverse the insurer’s decision and approve his application for a companion animal. He referenced the Companion Animal Act 1988.
Insurer’s submissions 12 June 2024
The insurer noted at [1.4] that on 22 November 2023 it declined the request for a companion animal on the basis that, in accordance with s 1.4 of the MAI Act “it is not considered treatment and care under the Act.”
The insurer also noted at [1.6] that in its internal review certificate of 11 December 2023 the decision was affirmed. The insurer says at [1.7] and [1.8] that the claimant had been diagnosed with post-traumatic stress disorder but had no treatment for 12 months. The insurer confirmed it had approved a consultation with Mr Anthony for psychological assessment to determine the claimant’s current status and further treatment needs.
The insurer says at [2.2] that no evidence had been introduced by the claimant that his request for a companion animal has met the “necessary criteria.” The insurer refers to the whole person impairment assessment of Medical Assessor Fukui dated 7 December 2022, a report from Dr George dated 21 September 2023 and the letter from Dr Chesterfield Evans dated
13 November 2023.
The insurer summarises Medical Assessor Fukui’s findings and says at [2.18] “there is no reference in this assessment as to any potential treatment or rehabilitative benefit of a companion animal.”
The insurer summarises the report of Dr George and says at [2.32] that he “did not make any reference in his report to any potential medical and / or rehabilitative benefits of the applicant obtaining a companion animal …” and referred to the claimant not having had any recent psychiatric or psychological care.
The insurer notes the 12 November 2023 recommendation of Dr Chesterfield-Evans which suggests the claimant “may benefit from a companion animal” but the insurer says at [2.33] the report does not identify how this is reasonable and necessary or how it fits within the definition of treatment and care.
The insurer confirms at [2.34] it disputes the claimant’s entitlement to an animal on the basis it is not “treatment and care” within the definition in the MAI Act. The insurer then sets out at [2.35] the definition and says at [2.36] that there is no evidence as to how an animal would meet the definition.
The insurer then refers at [2.37] to s 3.24 which provides an entitlement to treatment and care benefits and at [2.38] sub-section 2 which says statutory benefits must relate to the injuries caused by the accident and must be reasonable and necessary in the circumstances in order for them to be paid.
The insurer notes at [2.41] that Dr Chesterfield-Evans says the claimant “may” benefit from an animal but that this does not meet the threshold for “reasonable and necessary.” The insurer says at [2.42] the claimant has not engaged in psychiatric treatment for over 12 months and that Dr Chesterfield-Evans is not a psychologist or psychiatrist and is not qualified to attest to the potential therapeutic benefit of a companion animal.
Insurer’s further submissions 15 July 2024
The Insurer sets out at [1.3] the definition of treatment, notes at [1.4] the observation made in the preliminary conference report that a service or assistance dog could be rehabilitation or an aid and appliance and cites at [1.5] the definition of rehabilitation.
The insurer then, from [1.6] – [1.12] refers to the evidence and restates the insurer’s view that the referral from Dr Chesterfield Evans does not explain how an assistance dog would help the claimant, that the claimant has not had any recent psychological treatment and that he has not yet taken up the insurer’s offer to pay for an initial consultation with Mr Anthony, psychologist. The insurer says at [1.13], “there has been opportunity afforded to [the claimant] to obtain corroborative evidence with respect to this claim.”
The insurer refers at [1.14] to the decision of Deputy President Snell in State of New South Wales (Central Coast Local Health District) v Bunce[1] (Bunce) where it was determined:
“… that for an assistance dog to be considered treatment, it must be considered in accordance with the principles of Rose v Health Commission … that it will “arrest or abate the progress of the condition or to alleviate, cure or remedy the condition limiting the deleterious effects of a condition and restoring health”. Additionally, it must be by direction of a medical practitioner.”
[1] [2020] NSWWCCPD 48.
The insurer submits at [1.15] that all of the medical professionals in that matter supported the provision of an assistance dog which had been specially trained to deal with the worker’s psychological condition.
The insurer then submits at [1.16] that case “is persuasive and instruction” in determining “if an assistance dog is considered treatment” and repeats at [1.17] that there is no evidence that supports the provision of an assistance animal in this case.
The insurer says at [1.18] that:
“The respondent therefore concludes that there cannot be a finding that a companion animal/assistance dog is considered within the definition of “treatment and care” as defined by section 1.4 of the Motor Accident Injuries Act 2017.”
The remainder of the insurer’s submissions deal specifically with the issue of whether the provision of a companion animal is reasonable and necessary and related to the injury caused by the accident.
The claimant’s further submissions
The claimant provided additional documents on 26 July 2024 and the following additional documents:
(a) an email and information from mindDog;
(b) an email communication between his GP and his physiotherapist;
(c) a report from Mr Anthony, psychologist, and
(d) a report from Dr Chesterfield-Evans.
The claimant summarises the evidence and submits that an assistance dog can be considered a form of rehabilitation.
He also addresses the issue of whether such an animal is reasonable and necessary treatment in his case.
REVIEW OF THE EVIDENCE
Claimant’s evidence
At the preliminary conference on 2 July 2024, Mr Meneses said:
(a) he was seeking a trained service or assistance type dog not just a pet. He said he had contracted the organisation mindDog about that;
(b) before he died, Dr Smith had recommended an assistance or service dog but at that time Mr Meneses was not ready for it;
(c) he sees a pain physician every six months;
(d) after his psychologist retired and Dr Smith died, he continued to see Dr Chesterfield-Evans;
(e) he had difficulty finding a psychologist or psychiatrist who would be prepared to get involved with a motor accident claim, and
(f) he had not made arrangements to see Mr Anthony
Treating practitioners’ evidence
The claimant uploaded an email from Ms Dacey of the mindDog Team dated 16 August 2023. Attached to the email was information which explained the mindDog application process and programme and provided details of the fees and intake periods. She also says:
(a) he will need to find an appropriate dog and give it time “to get to know each other and allow the dog to settle and to trust”;
(b) the cost of training is paid to the trainer by the claimant, and
(c) each session costs around $100 - $120 and it is likely there will be 10-12 sessions over a 12-month period.
Ms Dacey provided links to YouTube training videos, and she also provided a guide to selecting the right dog.
The brochures and information from mindDog includes the following:
(a) to become a mind dog client, you must have a diagnosed mental health condition;
(b) you must have your own dog;
(c) mindDog’s role is to facilitate the training and certification of the dog;
(d) there is an application fee (up to $500) and a public access test fee (up to $300) and an annual recertification fee (up to $250);
(e) the trainer teaches the client how to train the dog, and
(f) it takes four months from application to commencement of the program.
The information also explains about the Public Access Test which, if passed, enables the dog to be classified as an assistance or service dogs which in turn enables them to travel on public transport.
Dr Arthur Chesterfield-Evans has provided a referral to a “Companion Animal Supplier” dated 13 November 2023. This referral says:
“Thank you for seeing [the claimant] who has PTSD and may benefit from a companion animal. Would you please supply this with appropriate training.”
Dr Chesterfield-Evans refers to the claimant’s conditions of a closed head injury, chronic headache, disequilibrium, dizziness, falls and injured right wrist, multiple trauma including head, neck and lower back (19 June 2018) and Depression and PTSD (23 November 2018).
Dr Chesterfield-Evans wrote to the claimant’s physiotherapist on 8 July 2024. He said the claimant had been depressed and required motivation to exercise and said, “a psychiatrist has suggested that he would benefit from a ‘Service dog’ to improve his morale.” Dr Chesterfield-Evans thought it would also assist the claimant’s exercise regime and asked the physio to comment. The response dated 24 July 2024 confirms the claimant was assessed and Mr Rijadi thought the claimant “could” benefit from a trained service dog in his rehabilitation program either at home or in supervised exercise programs, “providing emotional support and functional capacity rehabilitation to prevent deleterious effects of prolonged immobility.”
Mr Anthony, psychologist, wrote to the claimant’s GP on 23 July 2024. The claimant was seen on 4 and 23 July 2024.
Mr Anthony says that as a result of the accident the claimant continues to suffer post-traumatic stress disorder and an adjustment disorder. He says:
“He does require psychological assistance to manage the pressures he currently faces and to avert deepening depression. He would also benefit from having a companion animal.
… A companion animal would provide him with much needed company, raise mood and feelings of contentment, help him increase physical activity and serve as a distraction from his inward focus on his miseries. Importantly, a companion animal would serve as a host for the projection of his strong dependency needs It also likely that interaction with a companion animal would assist in reducing stress levels in everyday life including social and community situations. A reduction is stress levels would improve his concentration and memory functioning, with consequent improvement in work performance.”
Dr Chesterfield-Evans has written a report addressed to the Personal Injury Commission dated 23 July 2024. In this report he confirms he is not a psychologist or a psychiatrist but has over 40 years’ experience in occupational medicine. He says he has “encountered numerous cases of PTSD in a workplace setting.”
He says an assistance dog would provide the following benefits:
(a) mitigation of the symptoms of post-traumatic stress and anxiety;
(b) increase Mr Meneses independence and community participation;
(c) facilitate his social interaction;
(d) provide emotional support and companionship, and
(e) potentially reduce the claimant’s alcohol use by providing alternative coping mechanisms.
He notes an assistance dog is not just a pet or companion animal but must be specifically trained. He refers to NDIS requirements of three active tasks the dog must be trained to do, for example reminding him to take medication, interrupting anxiety or panic attacks and guiding the claimant to a safe place if he is overwhelmed.
He suggests research has shown positive outcomes for individuals and that “an assistance dog offers an increasingly common intervention that may be more successful in facilitating his community participation and overall recovery”. He strongly supported the claimant being provided with an assistance dog.
Medico-legal reports and assessments
The insurer relies on a determination by Medical Assessor Fukui on 7 October 2022 that the claimant has a chronic post-traumatic stress disorder. She assessed the whole person impairment associated with that disorder as being not greater than 10%. She has a history of the claimant being rear-ended at high speed and that his vehicle hit the vehicle in front and that there was an eight car pileup. He was taken to hospital, discharged the next day and soon after was referred to a psychologist. He reported anxiety and depression.
Medical Assessor Fukui notes Mr Meneses was referred to a psychiatrist Dr Smith who he saw every two months until the doctor’s death. He had been referred to Dr Pilsky and was prescribed Endep, Temazepam and Targin and a neurologist who recommended medicinal cannabis.
Medical Assessor Fukui noted the two experts in the case (Dr George and Dr Anderson) assessed the claimant as having a WPI of greater than 10%. She noted he had developed chronic pain.
The insurer relies on an opinion from Dr George, psychiatrist dated 21 September 2023. Dr George documents the treatment by the claimant’s psychologist, Alexander, who retired in 2022 and that he had seen Dr Smith until he died. He is under the care of a pain specialist and sees his GP Dr Chesterfield-Evans who treated him for an alcohol use disorder. Dr George maintained his diagnosis of a chronic post-traumatic stress disorder, a persistent depressive disorder and alcohol use disorder. He expressed the view the claimant’s injuries related entirely to the injury and prevented him from working.
CAN A SERVICE OR ASSISTANCE ANIMAL BE TREATMENT?
General introduction to the approach taken in this assessment
Mr Meneses seeks treatment in the form of a service or assistance dog. He says in his most recent submissions that a service or assistance dog is a form of rehabilitation and therefore comes within the definition of treatment in the legislation.
The insurer has provided extensive submissions about what it says is the lack of evidence in support of the need for an assistance or service animal and why such an animal is not reasonable and necessary in Mr Meneses circumstances due to his failure to engage with psychiatric or psychological treatment. With respect to the insurer these are submissions that should be put before a Medical Assessor as they relate to the medical assessment matter.
The dispute before me is whether a service or assistance dog is “treatment”. If it is not, there is nothing for a Medical Assessor to assess. If it is, then a Medical Assessor will need to consider the evidence and determine whether it is treatment that is related to Mr Meneses’ injuries. The Medical Assessor will also need to consider the evidence and the available research and determine whether it is reasonable and necessary in Mr Meneses’ individual circumstances that he have a dog, be provided with training to train that dog and, if he and the dog pass the test, certification of the dog as his assistance animal.
The insurer has provided no submissions addressing the definition of treatment and why the insurer says an assistance or service animal is, or is not, an aid or appliance or can, or cannot, be a form of rehabilitation.
The insurer referred to the case of Bunce. That case dealt with s 59 of the Workers Compensation Act 1987 NSW which contained a definition of “medical or related treatment” which included at (b), “therapeutic treatment given by direction of a medical practitioner.” The “treatment” in dispute in that case was a service or assistance animal. The parties before the Arbitrator had agreed that if s 59(b) was the relevant criteria and the arbitrator had determined that the provision or a service or assistance animal did come within that definition.
Deputy President Snell referred to the decision of Burke CCJ in Rose v Health Commission (NSW)[2] (Rose) and at [60] cited the following passage:
“... treatment must be reasonable if it is to fall within the purview of the subsection. But that is not solely because of the words ‘reasonably necessary’ but is rather inherent in the concept of ‘treatment’ itself. Treatment is necessarily purposive. Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all.”
[2] 1986 NSWCC2; 2 NSWCCR 32.
Deputy President Snell said at [68] that s 59 was not restricted to the provision only of services and that “treatment can extend to the provision of things in an appropriate case.” He considered at [69] that while the provision of a dog was an unusual claim, it must be “designed to arrest or abate the progress of a condition, cure or remedy the condition limiting the deleterious effects of a condition and restoring health” as stated in Rose and in accordance with the legislative provision must be “by direction of a medical practitioner.” He found at [74] that the phrase “therapeutic treatment” in s 59(b) was “sufficiently broad to encompass the provision of an assistance dog in an appropriate case.”
The legislative definition in the workers compensation scheme is similar to that in the MAI Act as they both provide a list of services and things that are treatment. But the list is different and uses the word “includes” before the list which suggests the list may not be exhaustive. The definition of treatment at s 1.4 of the MAI Act lists 11 particular treatment modalities and also provides that the Motor Accident Injuries Regulation 2017 may add to that list[3]. The definition however states that treatment and care “means” the things in the list. Therefore treatment in the motor accidents scheme is limited to those 11 treatment types. If something that is claimed does not fall within one of those 11 types of treatment, then it cannot be allowed regardless for example of how reasonable and necessary it is or how directly it relates to the injuries sustained in the motor accident.
[3] There is nothing additional in the Regulation.
In my preliminary conference report, I suggested that of the 11 treatment modalities listed only two appeared to be relevant. I have received no submissions from the parties to dispute that. I will deal with each in turn.
Are service or assistance animals, rehabilitation?
The definition of “rehabilitation” in paragraph (c) of the definition of treatment means:
“the process of enabling or attempting to enable the person to attain and maintain—
(a) the maximum level of independent living, and
(b) full physical, mental, social and vocational ability, and
(c) full inclusion and participation in all aspects of life.”
A guide dog or seeing eye dog is an assistance or service animal. If Mr Meneses has lost vision in his accident and was advised to obtain a guide dog to assist him, that would, in my view clearly be a form of treatment in that the guide dog would enable the claimant to access the community, attain independent living, return to work and fully participate in all aspects of his life.
A psychological or psychiatric injury is another type of injury.
Dr Chesterfield-Evans says that research suggests service or assistance animals can be a part of a person’s recovery and rehabilitation in psychological injuries. The case of Bunce refers to medical evidence which in turn also refers to literature about the efficacy of service or assistance animals for persons with certain psychological injuries. In Ms Bunce’s claim, a dog trained in accordance with the mindDog program had been recommended for her injury (a panic disorder and post-traumatic stress).
Dr Chesterfield-Evans referred the claimant to be considered for a form of therapy, what he termed a “companion animal”. General Practitioners in this scheme regularly refer their injured patients to specialists including neurologist, neurosurgeons, physiotherapists, psychiatrists and psychologists. Dr Chesterfield-Evans, on 13 November 2023 referred the claimant to, a “companion animal supplier” as he was of the view Mr Meneses “may benefit” from a companion animal.
A companion animal supplier, such as mindDog, is another type of specialist.
The additional evidence provided by Mr Meneses suggests a companion animal may help him manage his psychological injury, mitigate (alleviate) his symptoms, increase his independence, facilitate social interaction, provide emotional support and increase the claimant’s physical activity. All of these things are, in my view, aimed at promoting the claimant’s rehabilitation and recovery and arrest or abate any deterioration of his condition.
I am satisfied that service or assistance animals are covered by the definition of rehabilitation and are therefore a form of treatment within the meaning of s 1.4 of the MAI Act.
Are service or assistance animals, aids or appliances?
The term “aids and appliances” is, in my view, suggestive of external man-made devices such as artificial limbs, crutches, wheelchairs, hearing aids, grab rails and so on.
It may also be arguable that a service or assistance animal is an aid or appliance under paragraph (g) of the definition of treatment. Guide dogs, could for example, be considered an aid to a vision impaired person’s mobility in the same way a wheelchair aids the mobility of someone with a spinal cord injury.
In the light of my finding in relation to the term “rehabilitation” I do not consider it necessary to further address this question.
CONCLUSION
I have found that the provision of a service or assistance animal to a person injured in a motor accident is rehabilitation and therefore a form of treatment and care within the statutory definition. In the light of the insurer’s submissions, there is clearly a medical dispute between the parties about whether this type of treatment is related to Mr Meneses’ injuries caused by the accident and whether it is reasonable and necessary treatment in the circumstances, that is his circumstances.
I will therefore refer this matter back to the Commission to proceed with the medical assessment matter and refer it to a Medical Assessor. In my view, the Medical Assessor should be provided with a copy of these reasons and should determine:
(a) whether the provision of a service or assistance animal to Mr Meneses is related to the injuries caused by his motor accident, and
(b) whether the provision of a service or assistance animal is reasonable and necessary in the circumstances, that is Mr Meneses’ circumstances.
1
1
10