Villanueva v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMR 7
•6 May 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Villanueva v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 7 |
| CLAIMANT: | Mauricia Villanueva |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MERIT REVIEWER: | Belinda Cassidy |
| DATE OF DECISION: | 6 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant’s dispute about the cost of attendant care services provided to her by her sisters; claimant asserted attendant care services were paid for (and not gratuitous; the claimant relied on invoices rendered by her sisters to her, receipts issued by them for monies paid and certification by the sisters of the work that was done.; medical assessment determined by Review Panel that care provided by sisters was reasonable and necessary; insurer had conceded care was related to the injuries; see Villanueva v Insurance Australia Limited t/as NRMA Insurance; rate charged by sisters was $12.50, increased to $25 and increased again to $35 per hour; insurer had paid for $22,200 of the disputed care; Held – Merit Reviewer bound by medical assessment finding of 8 hours per week; $12.50 and $25 per hour reasonable cost as insurer had paid care at this rate; $35 an hour reasonable on basis of current attendant care rate in damages claims; total amount claimed $38,600; total amount of reasonable costs allowed $28,800; invoices properly verified and paid as no challenge by insurer to the scheme of arrangement for the payment of the costs. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.4 of the Motor Accident Injuries Act 2017, my determination of the merit review matter is: 1. For the purposes of s 3.24(1), the reasonable cost of attendant care services provided by Concepcion Villanueva and Lourdes Tibig to Mauricia Villanueva from the date of the accident to 6 November 2023 is the sum of $28,600. 2. The attendant care services provided to the claimant by Concepcion Villanueva and Lourdes Tibig have been properly verified for the purposes of s 3.27. |
STATEMENT OF REASONS
INTRODUCTION
Miss Mauricia Villanueva was involved in a motor accident on 6 November 2018. She was the victim of a car-jacking outside a fast-food restaurant and was injured by the assailant as he took control of her car, as he drove off in the car and when Miss Villanueva was ejected from the car as it was being driven away.
At the time of the ordeal, Ms Villanueva was 65 years of age. She is now 70 years of age. Miss Villanueva sustained injuries to her head, lower back, hips, legs, feet and toes as well as her left shoulder and left elbow. She has also developed a significant psychological injury as a result.
Miss Villanueva made a claim for statutory benefits with NRMA, her own third-party insurer. NRMA admitted liability for the claim.
A dispute has arisen between Miss Villanueva and NRMA about services provided to Miss Villanueva after the accident by her sisters, Concepcion Villanueva and Lourdes Tibig. Miss Villanueva says she has paid her sisters to provide domestic care and assistance to her on account of her injuries.
A medical dispute about this care, was referred to the Personal Injury Commission (the Commission) and Medical Assessor Shahzad determined that the disputed care was related to the injuries caused by the accident and was reasonable and necessary in the circumstances. His assessment was the subject of review proceedings which have now concluded. The disputed care claimed by Miss Villanueva has been allowed by the Review Panel.
The proceedings that are before me concern a dispute about the cost of the care provided which is a merit review matter.
I have conducted two preliminary telephone conferences with the parties and received submissions and documentation. At the last conference I set a timetable for the provision of documents and final submissions and determined I would be assessing the matter on the documentary material, supplemented by the evidence provided by the claimant during the teleconferences.
During the course of these proceedings, the parties have confirmed that Ms Villanueva made a claim for damages arising out of her accident, and that the claim for damages had settled in 2022. Miss Villanueva was assisted by Firths the Compensation Lawyers in that claim however they do not represent her in the current dispute. Ms Villanueva has represented herself throughout the current proceedings.
LEGISLATIVE FRAMEWORK
General
Miss Villanueva’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Statutory benefits payable by the “relevant insurer”[1] 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 for all claimants under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
In accordance with s 4.3 of the MAI Act, damages under Part 4 are only awarded for non-economic loss and economic losses. Section 4.5 limits the types of economic losses that can be recovered in a damages claim. As a result, damages cannot be recovered by the claimant against the insurer for treatment and care expenses. The mechanism for an injured person to recover the cost of treatment and care they say was caused by the accident is through the statutory benefits claim.
When a damages claim is settled, as in Miss Villanueva’s damages case, the lump sum is paid, and the claim is at an end. A claimant cannot generally re-open a damages claim to seek further lump sums or additional damages.
The settlement of a damages claim does not affect the statutory benefits claim in so far as treatment and care expenses are concerned. An injured person’s statutory claim continues, and the injured person’s treatment and care expenses continue to be paid by the relevant insurer for as long as they are needed.
Treatment and care
Section 3.24 provides 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
…
(1) 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.”
The phrase “treatment and care” is defined in s 1.4 to include medical treatment, rehabilitation, respite care, attendant care services, home and transport modification and so on.
Attendant care services are defined as “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”
Treatment and care expenses are therefore the expenses associated with providing treatment and care, including attendant care, to a person injured in a motor accident.
Section 3.27 provides for the verification of expenses as follows:
“(1) No statutory benefits are payable under this Division for expenses unless the expenses are properly verified in accordance with the Motor Accident Guidelines.
(2) The Motor Accident Guidelines may make provision for how expenses for treatment and care are to be verified including verification that—
(a)the expenses have been incurred, and
(b) the treatment and care has been provided, and
(c) the treatment and care relates to the injury in respect of which statutory benefits are payable.”
Part 4 of the Motor Accident Guidelines (the Guidelines) concerns claims management and includes a number of clauses relevant to “treatment, rehabilitation, care and vocational support.” Under the heading “verification of expenses” are the following two clauses:
“4.112 Where an invoice is issued to the insurer directly from a treatment or care provider, the following should be included on the invoice:
(a) the claimant’s first and last name
(b) the claim number allocated by the insurer
(c) payee details
(d) the Medicare provider number, if relevant
(e) the Australian Business Number (ABN) of the provider
(f) the name of the medical practitioner or service provider
(g) the date of the service (the date of invoice must be on the day of or after last date of service listed on the invoice)
(h) the payment classification code from the Authority or AMA item number, where applicable
(i) the service cost for each payment classification code from the Authority or AMA item number, where applicable
(j) the service duration, where applicable.
4.113 These provisions do not apply to reimbursement for treatment and/or expenses to the claimant. These expenses should be reimbursed to the claimant by the insurer on provision of a receipt confirming the expenses incurred, where the insurer has provided pre-approval and/or the expenses are reasonable and necessary in the circumstances. Insurers should request details of regular service providers to establish direct billing and reimbursement between the insurer and provider to reduce the financial burden on the claimant.”
Dispute resolution
Under Schedule 2 of the MAI Act there are currently 44 separate dispute types of which several relate to the provision of treatment and care to injured persons.
Pursuant to cl 2 (b) of the schedule, the following matter is declared 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 ...”
Pursuant to cl 1 of the schedule, the following matters are declared to be merit review matters:
“(i) whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of section 3.24(1).
(k) whether expenses have been properly verified for the purposes of section 3.27.”
Section 7.23(2) provides that a medical assessment certificate issued by a single Medical Assessor or a Review Panel is “conclusive evidence” in, amongst other things, merit review proceedings.
PRELIMINARY ISSUE – THE SCOPE OF THE DISPUTE
The medical assessment matter
The initial application lodged with the Commission on 26 July 2022 was identified as a medical assessment matter. This dispute was determined by Medical Assessor Shahzad on 4 July 2023. He issued a certificate which says that:
(a) “the request for reimbursement of payments made for domestic services provided to the claimant is causally related to the injuries sustained in the subject motor vehicle accident”; and
(b) “the request for reimbursement of payments made for domestic services was reasonable and necessary in the circumstances”.
At the time of the first teleconference in the current merit review matter, Medical Assessor Shahzad’s assessment was the subject of an application for review which had been allocated to Member McTegg and Medical Assessors Gibson and Piebanga.
I was advised during the first preliminary teleconference that an officer from NRMA had informed the Review Panel that NRMA conceded the attendant care services provided by the claimant’s two sisters relate to the injuries caused by the accident. It was confirmed by Ms Zogopoulos in the current proceedings that the remaining medical dispute was whether the care provided to Miss Villanueva was reasonable and necessary in the circumstances and whether it was reasonable and necessary for that care to have been provided by her sisters.
The Medical Review Panel has now determined[2] that:
(a) a total of eight hours per week of care and assistance was reasonable and necessary from the date of the accident until 6 November 2023, and
(b) it was reasonable and necessary in the circumstances for the claimant to be provided with domestic assistance by her sister Concepcion.
[2] The decision has been published - Villanueva v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 59.
Ms Zogopoulos says that NRMA accepts the decision of the Review Panel.
The scope of the care in dispute
At the first preliminary teleconference, Ms Villanueva confirmed that there was no claim for care provided by her sisters from the date of the accident to December 2019. She said she only entered into an agreement with her sisters to provide care upon receipt of the diagnosis of the compression fracture in her lumbar spine.
Attached to the insurer’s reply were five tax invoices numbered 52, 56, 62, 70 and 72. The total of the five invoices is $22,200. Ms Zogopoulos confirmed that after Medical Assessor Shahzad had certified the treatment in dispute was reasonable and necessary and related to the injuries sustained in the accident NRMA paid the claimant the sum of $22,200 despite the Review Panel proceedings being on foot.
Attached to the claimant’s bundle in the medical assessment matter is an invoice 66 in the sum of $1,000.[3] This invoice has not been paid.
[3] A copy of that invoice was also included in the claimant’s bundle in the current proceedings filed with the Commission on 14April 2024.
The claimant has subsequently rendered invoices to the insurer numbered 73, 74 and 75. Invoices 73, 74 and 75 are for the cost of services totalling $15,400 and these invoices have not yet been paid by NRMA.
The relevant insurer issue
Miss Villanueva says that, in addition to the disputed invoices, she is making a claim for ongoing care to be provided by her sisters for the rest of her life.
The current claim is a claim for statutory benefits under Part 3 of the MAI Act. Statutory benefits are paid by the “relevant insurer”. NRMA as the compulsory third-party (CTP) insurer of Miss Villanueva’s vehicle has been the relevant insurer for the claim and it is NRMA’s decisions about the cost of care that are the cause of the current dispute which is the subject of the present proceedings.
However, in accordance with s 3.2(3) of the MAI Act at a point in time, five years after the accident, the relevant insurer becomes the Lifetime Care and Support Authority through its program called CTP Care.
It is now more than five years since the claimant’s accident.
While CTP Care has now been advised of Miss Villanueva’s claim, it was not on notice of the dispute and has not been joined to the proceedings or given the opportunity to be heard. It would be procedurally unfair to make any determination in respect of the cost of future care in a dispute which currently involves only the claimant and NRMA.
At the first teleconference, the claimant was informed of the involvement of CTP Care. As any claims for treatment and care provided beyond 6 November 2023 would be the responsibility of CTP Care it would be appropriate for the claimant to ask CTP Care for that treatment and care, for CTP Care to make decisions about the request and for any disputes that arise between the claimant and CTP Care to be referred for assessment.
What will be considered?
As noted above, s 7.23(2) provides that the Review Panel’s decision is binding upon the decision maker in a merit review matter. I must therefore confine my merit review of the cost of the treatment to those attendant care services that the Medical Panel has determined are reasonable and necessary in the circumstances.
The parties agreed that I should only determine the dispute about the cost of treatment and care provided to the claimant up to 6 November 2023 for which NRMA might be liable.
The total costs claimed by Miss Villanueva is the sum of $38,600.
SUBMISSIONS FROM THE PARTIES
The insurer’s submissions
In submissions dated 23 August 2022 lodged with the original application for medical assessment, NRMA raised as an issue that pursuant to cl 4.101 of the Motor Accident Guidelines the invoices were not properly verified because there was no Australian Business Number (ABN) provided with the invoice. NRMA said that the claimant’s sisters “were not appropriate providers of domestic services in line with a business.”
In submissions dated 12 December 2023, NRMA asserted the cost of domestic care undertaken by the claimant’s sisters was not reasonable because the services were not undertaken by qualified attendant care professionals but by close family members.
In submissions dated 28 March 2024 NRMA advised the attempts had been made to resolve the matter and the insurer had offered to pay an amount in settlement of invoices 73, 74 and 75. The insurer also apparently offered to pay the claimant for eight hours a week of attendance care from April to June 2024 upon production of the appropriate invoice.
The insurer submitted that it did not dispute the amount of the care it had already paid ($22,200). NRMA noted the claimant had not accepted its offer.
Claimant’s submissions
The claimant has, in her correspondence with the insurer, maintained:
(a) the care provided has been paid for and has not been provided gratuitously, and
(b) the Guidelines require an ABN only if NRMA is paying for the service direct. Where the claimant is seeking reimbursement of expenses she has paid, an invoice and a receipt is all that is required, and Miss Villanueva has done that.
In the bundle of documents received on 14 April 2024, in a document headed “insights into preliminary conference report”, the claimant confirms she has requested a comfortable bed or chair from NRMA and she has included the correspondence that confirms those requests have been made.
Miss Villanueva also advised the hourly rate charged by her sisters increased from $12.50 per hour to $25 per hour and then to $35 per hour. She attached further copies of the invoices, receipt and certification of the care provided from 15 April to 24 June 2022.
Finally, she corrected some typographical errors in the summary table of invoices, receipts and certifications.
Under the heading “response to the preliminary submissions by NRMA” the claimant refers to the insurer’s offer to “resolve the matter and close my case.” Miss Villanueva then summarises the events in the claim and dispute process, and she expresses quite clearly her distress about the length of time the dispute has been on foot.
Miss Villaneuva says that she is in “terrible, excruciating pain” and that she cannot respond to the insurer’s offer at this time.
Claimant’s application for extension of time
On 2 May 2024 in a message on the portal Miss Villanueva said that she wanted an extension of time to confirm the times she has consulted with her general practitioner (GP), Dr Ong. It would appear this is so the claimant can make a claim for the cost of travelling to see Dr Ong and add these to the schedule of travel expenses already provided to me.
I refuse the claimant’s request to extend the time to allow her to confirm the dates of her attendances with Dr Ong. This information will not assist me in the determination of the dispute that is currently before me, that is the dispute about the cost of attendant care expenses provided by the claimant’s sisters.
REVIEW OF THE EVIDENCE
Medical evidence
Both parties have provided documents in support of their respective positions. The medical evidence was summarised by the Review Panel in their decision published earlier this year. Having read the documents I am satisfied that the summary is accurate, and I adopt it. I have included it as an annexure to these reasons.
I note in general the severity of the claimant’s injuries and the assessments of impairment by Medical Assessors Cameron (20%) and Samuell (26%).
I have also reviewed and considered the decision of the Medical Assessment Review Panel dated 6 February 2024.
The claimant’s application for late documents – 22 January 2024
On 22 January 2024 the claimant made an application to admit late documents into evidence. The documents include additional submissions and documents addressing the following issues:
(a) the claimant requested the application be amended to include her claim for a comfortable bed, comfortable chair or wheelchair;
(b) Ms Villaneuva said that she sustained psychological scars because of the car-jacking and she wished to include in the present assessment a claim for compensation for a sexual assault by the car-jacker, and
(c) the claimant asked that the present claim be amended to include compensation for economic loss and her loss of earning capacity.
Ms Villaneuva provided invoices 73, 74 and 75 with associated receipts and certifications and requested these be considered in the current dispute. These invoices claimed 22 hours a week of attendant care services had been provided to her at a cost of $35 an hour from 15 June to 6 November 2023 (a total of $15,400).
At the first teleconference, the documents were allowed into evidence in the current merit review proceedings.
The claimant’s application for late documents – 14 February 2024
The claimant made a second application to admit late documents. Again, the documents were a mix of additional submissions and requests to amend the current application as follows:
(a) the request for a comfortable bed, chair and wheelchair;
(b) a request for compensation for sexual assault;
(c) the claimant wished to amend her application to seek 22 hours of attendant care a week, and
(d) Ms Villaneuva claimed an increase in the cost of care from $12.50 to $25 to $35 an hour because prices have increased.
I allowed the documents into evidence at the second teleconference.
Other documents
On 14 April 2024 the claimant lodged 138 pages of documents[4] comprising:
(a) an invoice from a pharmacy dated 10 January 2014[5] setting out a list of medications dispensed from 22 December 2022 to 2 November 2023;
(b) two Medicare Statements of Claim and Benefits paid in respect of services provided by Dr Hartin[6] on 23 May 2023 and 13 June 2023;
(c) an invoice / receipt for an MRI undertaken on 10 June 2023;[7]
(d) an invoice from Kieth Soriao for transport services provided on 23 May, 10 June, 13 June and 16 June 2023;[8]
(e) insights into the preliminary conference report and response to NRMA supplementary submissions;[9]
(f) email request to NRMA dated 21 July 2023 for a comfortable bed and chair and a comfortable room with bathroom and toilet on the ground floor of her home due to the worsening severity of her condition. This email also seeks compensation for sexual assault and for economic losses and loss of earning capacity;
(g) dispute application dated 29 July 2022, and
(h) Application to Admit Late Documents dated 15 June 2023 (in the medical assessment matter)[10] which included 27 pages of submissions for the Medical Assessor.
[4] I will refer to this as the 14 April 2024 bundle of documents.
[5] Page 132 of the 14 April 2024 bundle of documents.
[6] Pages 134 and 135 of the 14 April 2024 bundle.
[7] Page 136 of the 14 April 2024 bundle.
[8] Page 137 of the 14 April 2024 bundle.
[9] Page 2 of the 14 April 2024 bundle, dealt with above.
[10] Page 77 of the 14 April 2024 bundle.
Within the 14 April 2024 bundle of documents are the following which I have read and considered:
(a) an article from Yahoo News Australia dated 7 November 2018 about the claimant’s accident entitled “woman left with shocking injuries after terrifying carjacking”;
(b) the claimant’s application for personal injury benefits[11] signed and dated 4 September 2019 which includes a lengthy description of the accident and a detailed description of her injuries and how those injuries are affecting her;
(c) the claimant’s former solicitor’s letter to the claimant dated 11 March 2021[12] enclosing the report of Dr Anderson, psychiatrist;
(d) the claimant’s former solicitor’s letters to the claimant dated 7 July 2021 and 7 October 2021 enclosing the medical assessment certificates of Medical Assessors Cameron and Samuell;[13]
(e) NRMA’s certificate of review and letter to the claimant dated 23 June 2022 declining the request for reimbursement of domestic services from the claimant’s sisters;[14]
(f) NRMA’s letter to the claimant dated 28 July 2022[15] declining to reimburse the payments for domestic assistance provided by the claimant’s sisters on the basis the Act does not permit the payment of gratuitous care benefits;
(g) Miss Villanueva’s application for internal review (undated)[16], and
(h) undated letters to a claims officer with NRMA[17] advising NRMA that the care provided by her sisters is not gratuitous but that the claimant “gave cash payments” to her sisters as payment for the services they were providing.
[11] Page 110 of the 14 April 2024 bundle of documents.
[12] Page 44 of the 14 April 2024 bundle of documents.
[13] Page 23 and 33 of the 14 April 2024 bundle of documents.
[14] Page 70 of the 14 April 2024 bundle of documents.
[15] Page 14 of the 14 April 2024 bundle of documents.
[16] Page 18 of the 14 April 2024 bundle of documents.
[17] Pages 9 and 12 of the 14 April 2024 bundle of documents.
Finally, the claimant provided on 2 May 2024 a schedule of travel for which she is seeking reimbursement.
The disputed treatment
The following table summarises the evidence relied on by the claimant in support of her claim for reimbursement of the domestic services provided to her by her sisters.
For each invoice rendered by Concepcion or Lourdes, there is a corresponding receipt issued by the claimant and a certification from Concepcion or Lourdes that they have provided services to their sister.
Date
Invoice, receipt, certification
Details
December 2019 – April 2020
Invoice number 52[18]
Dated 30 April 2020
8 hours per week at $12.50 per hour for 20 weeks
Receipt number 8
Certification dated 30 April 2020
Concepcion Villaneuva to the claimant for domestic assistance services totalling $2,000
Paid by NRMA
May 2020 – 4 August 2021
Number 56
Dated 4 August 2021
8 hours per week at $12.50 per hour for 64 weeks
Receipt number 16
Certification dated 4 August 2021
Lourdes Tibig to the claimant for domestic assistance services totalling $6,400
Paid by NRMA
5 August 2021 – 15 April 2022
Number 62
Dated 13 April 2022
8 hours per week at $12.50 per hour for 36 weeks
Receipt number 30
Certification 13 April 2022
Lourdes Tibig to the claimant for domestic assistance services totalling $3,600
Paid by NRMA
15 April 2022 – 24 June 2022
Number 66[19]
Dated 23 June 2022
8 hours per week at $12.50 per hour for 10 weeks
Receipt number 32
Certification 23 June 2022
Concepcion Villaneuva to the claimant for domestic assistance services totalling $1,000
Not paid by NRMA
24 June 2022 – 30 December 2022
Number 70[20]
Dated 30 December 2022
8 hours per week at $25.00 per hour for 27 weeks
Receipt number 39
Certification 30 December 2022
Concepcion Villaneuva to the claimant for domestic assistance services totalling $5,400
Paid by NRMA
1 January 2023 – 14 June 2023
Invoice number 72
8 hours per week at $25.00 per hour for 24 weeks
Receipt number 40
Certification 14 June 2023
Concepcion Villaneuva to the claimant for domestic assistance services totalling $4,800
Paid by NRMA
15 June 2023 – 3 August 2023
Invoice number 73[21]
Dated 3 August 2023
22 hours per week at $35 per hour for 7 weeks
Receipt 41
Certification 3 August 2023
Concepcion Villaneuva to the claimant for domestic assistance services totalling $5,390
Not paid by NRMA
4 August 2023 – 21 September 2023
Invoice number 74
Dated 21 September 2023
22 hours per week at $35 per hour for 7 weeks
Receipt 42
Certification 21 September 2023
Concepcion Villaneuva to the claimant for domestic assistance services totalling $5,390
Not paid by NRMA
22 September 2023 – 6 November 2023
Invoice number 75
Dated 6 November 2023
22 hours per week at $35 per hour for 6 weeks
Receipt 43
Certification 6 November 2023
Concepcion Villaneuva to the claimant for domestic assistance services totalling $4,620
Not paid by NRMA
[18] Invoices numbered 52, 56 and 62 and associated receipts and certifications are in the insurer’s reply bundle R1.
[19] Invoice 66 and the associated receipt and certification were included in the claimant’s bundle in the medical assessment matter and at pages 67-69 of the 14 April 2024 bundle.
[20] Invoices numbered 70 and 72 and associated receipts and certifications are in the insurer’s bundle of 391 pages from page 128.
[21] Invoices numbered 73, 74 and 75 and associated receipts and certifications are found in the claimant’s application for late documents dated 22 January 2024.
The total of the paid invoices is $22,200. The total of the unpaid invoices is $16,400.
Claimant’s oral evidence at the preliminary teleconferences
Ms Villaneuva said that she had contracted with her sisters to provide the attendant care services after she had been diagnosed with the compression fracture in her spine and when she realised the severity of her injuries.
She said she when received the report from Dr Dias (which was commissioned by her solicitors) she understood she could make a claim for eight hours of domestic assistance provided to her every week. She said her sisters have provided much more care than that.
She said she then contracted with her sisters at an hourly rate of $12.50, then they increased the amount charged to $25 an hour in June 2022 and then again they increased the charge in June 2023 to $35 per hour.
Miss Villaneuva said that for each of the invoices her sisters had rendered to her, she was required to borrow money from another of her sisters, Fely Salenga, in order to pay them. When Ms Villaneuva received the money from Fely Salenga, she then paid it on to her sisters Concepcion or Lourdes in cash. When she received the reimbursement from NRMA, Ms Villaneuva then repaid Fely Salenga the cash in instalments. Ms Villaneuva said that her bank statements might show the deposits and the withdrawals but she was not sure.
Miss Villaneuva said her sister Lourdes did not declare her earnings (for the attendant care services) because it was below the threshold imposed by the tax office but that her sister Concepcion did declare in her tax returns the money that she was paid for the attendant care services she provided.
When asked, Miss Villaneuva said she borrowed the money from Fely Salenga because she could not afford to pay her sisters direct. When asked by Ms Zogopoulos about the settlement monies she had received, Miss Villaneuva said she had spent all the money she was paid in her damages claim on clothes, food and repaying her old debts.
CONSIDERATION OF THE ISSUES
Can the application be amended?
Within the claimant’s applications to admit late documents filed in January and February 2024 were four requests to amend her application.
The Personal Injury Commission Act 2021 provides at s 45 for the making of applications. Rules 16 and 17 of the Personal Injury Commission Rules 2021 provide that applications must be made in the appropriate form. Division 4.2 of the Rules provides for the amendment of documents “to avoid an injustice.”
I refuse all of Miss Villanueva’s applications to amend the application for merit review to include additional claims or otherwise increase the scope of the matters to be determined in the current proceedings. Each of the requests will be considered in turn.
The comfortable bed, chair or wheelchair
The letter from the claimant to NRMA on 21 July 2023[22] begins by making further requests for payment of the domestic care and assistance and in addition says she needs a comfortable bed, chair and wheelchair as well as home modifications. The claimant has not purchased the new bed, comfortable chair, wheelchair or undertaken the home modifications. She appears to be asking NRMA to provide them. There is no correspondence on the Commission’s file from NRMA responding to these particular requests. It is therefore not clear whether there is a medical dispute about the need for these items or a merit review dispute about the cost of these items.
[22] Page 5 of the 14 April 2024 bundle.
In my view a dispute about providing a bed, chair, wheelchair and home modifications requires a separate medical assessment matter which would need to be referred to the Commission on a fresh application once any internal review procedure had occurred. As a merit reviewer I have no power to assess the medical dispute.
I therefore refuse the claimant’s application to amend the current application as no injustice will occur as a result. Miss Villanueva can refer the medical dispute to the Commission and then lodge a further application if there is the dispute about the cost.
The sexual assault compensation
Miss Villaneuva said that she sustained psychological scars because of the car-jacking and she wants to include in the present assessment a claim for compensation for a sexual assault by the car-jacker.[23]
[23] He is alleged to have touched her breast as she was forced out of the car.
Any claim for lump sum compensation is not a matter that can be dealt with in the current dispute about the cost of attendant care treatment in the statutory benefits claim. Miss Villanueva has settled her damages claim for a lump sum compensation payment. If she wants to set aside that settlement to include an additional claim for damages for sexual assault that is a matter for her, but she cannot do that in the current proceedings.
I refuse the claimant’s application to amend the current proceedings as I have no power as a Merit Reviewer to assess lump sum compensation and because the lump sum compensation claim has settled and the settlement has not been set aside.
Compensation for economic loss
The claimant also asked that the present claim be amended to include compensation for economic loss and her loss of earning capacity. She says she is totally incapacitated for work and at a significant disadvantage in the open labour market. She says this was never addressed in her previous compensation assessment.
The current proceedings concern her statutory benefits claim and the application for a merit review of the cost of attendant care. This application cannot be amended to include matters relevant to her compensation claim for lump sum damages. In any event her damages claim has settled, as has already been noted, and finalised.
For the same reasons as above, I have no power as a Merit reviewer to assess damages for economic loss and therefore there is no utility in amending the current application.
Claim for 22 hours per week of attendant care
In the application of 14 February 2024, the claimant asked the Review Panel as well as the Merit Reviewer to change the number of hours of domestic care and assistance she claimed from eight hours per week to 22 hours per week.
The claimant provided a word document providing a list of what she says is the total amount of hours provided by Concepcion Villanueva. She says this was actually 22 hours and not eight hours as previously claimed.
The dispute that is before me is a dispute about the cost of care not the level of care. The level of care that is reasonable and necessary is a medical assessment matter. The Review Panel has determined that the claimant has a need for eight hours of care per week.
The claimant has given evidence at the preliminary teleconferences that she contracted with her sisters to provide eight hours of care per week and not 22 hours of care. All of the documentation the claimant has put before me, the invoices, the receipts and the certifications substantiate a claim for the cost of eight hours of paid care only.
If the claimant wants to pursue a claim for 22 hours of past care per week (in the past), then she will need to ask NRMA for that care and pursue any medical dispute about that level of care. If she wishes to pursue the cost for that level of care then she will need to provide evidence to the insurer in the first instance about the cost and then pursue any dispute about the cost of the care in the Commission. If she wishes to make a claim for 22 hours of care provided after 6 November 2023 then she needs to take that matter up with CTP Care.
I refuse the claimant’s application to amend the current proceedings to include an additional claim for care as there is no utility in doing so. The claimant must proceed to medical assessment first.
Matters for me to determine in the current dispute
In the report of the 7 March 2024 preliminary conference I advised I would proceed on the basis the certificate of the Review Panel was conclusive evidence and the cost of any care beyond eight hours per week cannot be allowed.
I also noted that the Review Panel’s certificate states that the need for domestic assistance for eight hours per week from the date of the accident to 6 November 2023 is reasonable and necessary and caused by the accident. In the reasons explaining those findings, the Review Panel determined that the care provided by Concepcion was reasonable and necessary because of the claimant’s circumstances (including the pandemic) and also because of Concepcion’s nursing qualifications. The Panel had not specifically mentioned the care that was provided by Lourdes, however in my view I am bound by what is contained in the certificate not what has been found in the reasons.
The insurer was asked to consider:
(a) what is in dispute, that is what is the cost of the “disputed care” – the cost of all of the care provided since December 2019 to 6 November 2023 ($38,600) or the cost of the as yet unrefunded and claimed care only?
(b) What is a reasonable cost for the disputed care (e.g. what is the current commercial rate paid by NRMA for qualified care providers such as home nurses and unqualified care providers such as cleaners and cooks)?
(c) Have the disputed care expenses been properly verified in accordance with the regulations?
(d) Whether NRMA agrees the care providers have been paid for the disputed care or whether NRMA says the disputed care has been provided gratuitously. If NRMA says the care has been provided gratuitously, NRMA is to provide evidence in support of that allegation.
In its 28 March 2024 submissions, NRMA addressed clearly the first point but did not address any of the other matters.
What costs are in dispute?
Of the $38,600 claimed as the cost of the care provided, $22,200 has been paid by NRMA to date.
At the first teleconference NRMA’s representative indicates it was unlikely the insurer would seek to recover the amount paid from the claimant. NRMA in its 28 March 2024 submissions indicates there is no longer a dispute about what it has paid.
Of the remaining $16,400 claimed, $1,000 relates to a claim for eight hours of car per week for 10 weeks at a cost of $12.50 per hour.
The final $15,400 relates to three invoices dated 3 August, 21 September and 6 November 2023. The invoices claim 22 hours a week of domestic care and assistance provided at a cost of $35 per hour for a total of 20 weeks.
Section 7.23(2) provides that the Review Panel’s certificate is conclusive evidence that eight hours of attendant care per week is reasonable and necessary and related to the accident. Section 3.24(2) provides that statutory benefits are not payable by NRMA for treatment and care this is not reasonable and necessary or not related to the accident caused injuries.
Therefore, in this case the insurer is only liable to pay the reasonable cost of the related, reasonable and necessary treatment which is eight hours a week not 22 from the date of the accident to 6 November 2023.
What is the reasonable cost for the disputed care?
The insurer has not provided any submissions as to what it says is the reasonable rate for attendant care services such as those provided by Miss Villanueva’s sisters.
I note the insurer has paid for a significant amount of care at the rate of $12.50 an hour and some care at the rate of $25 an hour so there is a presumption that both of those are reasonable sums.
I also note that the attendant care rate upon which a claim for damages is made under the Civil Liability Act 2002, the Motor Accidents Act1988 and the Motor Accidents Compensation Act1999 is $34.77 per hour (as at November 2023).
The insurer has given me no evidence about the current rate paid by insurers on a commercial basis in motor accident or other claims or the commercial rate in the general community.
The Review Panel’s examination findings, the documents from the claimant’s sisters and the claimant’s own evidence is that assistance is being provided with cooking, cleaning, laundry, shopping and bed-making. The claimant was said to be independent in toileting and grooming. The type of care being provided is not nursing care but domestic services.
In the light of the insurer’s payment of some of the invoices to date and the statutory prescribed cost for similar services, in my view the amounts of $25 per hour in 2022 and $35 per hour for the disputed care in 2023 are reasonable.
Therefore, the outstanding costs of $1,000 (for invoice 66) is reasonable within the meaning of s 3.24(1).
The total cost claimed for invoices 73, 74 and 75 is not reasonable because that was based on 22 hours of services per week. The cost of the certified eight hours per week at $35 per week for the relevant period of 20 weeks is reasonable and is the sum of $5,600.
Has the cost been verified?
NRMA has not provided submissions in the current proceedings disputing the verification of expenses however in its decision-making it has raised an issue about whether the costs have been verified.
Section 3.27(1) of the MAI Act provides that statutory benefits are not payable if the expenses are not properly verified. The Motor Accident Guidelines provide at cl 4.113 that where reimbursement is sought, a receipt appears to be all that is necessary.
The claimant has provided invoices, receipts and signed certifications from the claimant’s two sisters. She has also provided daily diary entries of what was cooked and what was done on particular days.
I am satisfied that the expenses incurred by the claimant for services provided by Concepcion and Lourdes have been properly verified in accordance with the Guidelines and within the meaning of s 3.27(1).
Have the sisters been paid?
The arrangement entered into by the clamant and her sisters is unusual in that the claimant says she is required to borrow money from one sister to pay another sister for the services being provided to her. It is also somewhat unusual for two sisters to contract with each other for the provision of services to another member of the family with whom they live.
Unusual as it may be, the insurer has not sought to investigate the arrangements by, for example, calling evidence from the claimant’s sisters or seeking production of the claimant’s bank accounts.
I am therefore satisfied on the evidence before me that the attendant care expenses incurred by the claimant have been paid by the claimant and she is therefore entitled to the reimbursement of them. The services rendered by Concepcion Villanueva and Lourdes Tibig have not been provided on a gratuitous basis.
CONCLUSION
The Review Panel has determined that eight hours of attendant care services to Miss Villanueva was related to the injuries sustained in the accident and was reasonable and necessary in the circumstances. The Review Panel’s certification is conclusive evidence of a reasonable amount of care in the matter before me.
Of the $38,600 claimed by Mis Villanueva as the cost of the attendant care services, I am satisfied that the sum of $28,600 is reasonable and is made up of:
(a) all of invoices 52, 56, 62, 70 and 72 in the sum of $22,200 already paid by NRMA;
(b) all of invoice 66 in the sum of $1,000, and
(c) part of invoices 73, 74 and 75 in the sum of $5,600.
The attendant care services have been properly verified in the documentation before me.
Merit Reviewer Cassidy
Motor Accidents Division
Personal Injury Commission
OutcomeDocumentSignee
OutcomeDocumentSignature
ANNEXURE A THE EVIDENCE CONSIDERED BY THE REVIEW PANEL
Statement of Ms Villanueva
Ms Villanueva provided a statement dated 4 November 2021.
Ms Villanueva stated she sustained injuries to her entire body including her head, shoulders, arms, elbows, hands, neck, back, chest, hips, pelvis and lower limbs. She also described psychological injury.
She reported CT scans of the brain did not reveal any acute findings. However, as a result of the injury to her lumbar spine she experienced ongoing lower back pain and a gradual increase in the deformity of her back. She consulted Dr Sean Suttor and later Dr Nathan Hartin. Ms Villanueva noted both doctors recommended against surgical intervention because of her poor bone density.
Ms Villanueva states she had difficulty walking, standing, and sitting for prolonged periods of time. She also described difficulty bending, twisting, kneeling, and crouching and is unable to lift, carry, pull or push any heavy objects. Ms Villanueva states she is no longer able to perform domestic household duties including cleaning, cooking, vacuuming, dusting, washing dishes, washing clothes, hanging laundry and grocery shopping and relies upon the assistance of her sisters.
Ms Villanueva was also diagnosed with post-traumatic stress disorder and commenced psychological treatment.
Treating medical evidence
Blacktown Hospital
Ms Villanueva was assessed at Blacktown Hospital where it was noted she had a laceration in the occipital region of her scalp, abrasions over her left forearm and elbow, tenderness in her right hip, her left hip and lumbosacral region and headache. There was no documented loss of consciousness. The scalp laceration was glued and dressed, and Ms Villanueva was discharged home the following day.
Healthway Medical Practice
There was a history of systemic lupus erythematosus in 2008.
On 13 December 2018 Dr Julie Ong, general practitioner (GP) recorded the claimant was carjacked on 6 November 2018 when she was dragged head to concrete for about
20m. She had a laceration to the front parietal region of the scalp.On 16 January 2019 Dr Ong recorded Ms Villanueva was still getting headaches and back pain.
On 29 August 2019 Dr Ong reported Ms Villanueva still had a sore back and could not stand straight since the accident. She also complained of headache associated with vomiting.
On 24 November 2019 Dr Ong referred to constant back pain.
On 20 August 2020 osteoporosis was diagnosed.
Dr Sean Suttor, orthopaedic specialist
On 13 December 2019 Dr Sean Suttor reviewed Ms Villanueva. He reported lower back ache and a gradual increase in deformity. Ms Villanueva felt she was more bent over and unable to stand up straight. On examination he reported Ms Villanueva stood with a positive sagittal balance and coronal shift to the right with a slow tentative walk. He noted the MRI scan demonstrated wedging through the L4 vertebra. He recommended X-ray and bone density scan.
On 18 December 2019 Dr Suttor reported Ms Villanueva had marked osteoporosis in the lumbar spine. He also noted the trauma caused a fracture which resulted in her coronal and sagittal imbalance. He concluded given the marked osteoporosis he did not think any surgical intervention was likely to succeed in correcting her deformity.
In a report dated 3 February 2020 Dr Suttor stated the healed crush fracture of the L4 vertebra with resulting kyphosis deformity and positive sagittal balance was related to the accident. He also concluded the pre-existing osteoporosis contributed to the fracture and the degree of collapse and compression. Dr Suttor reported Ms Villanueva was able to self-care but would have limitation of domestic duties as they relate to physical activities due to her lower back pain and inability to stand for extended periods.
Dr Nathan Hartin, orthopaedic specialist
On 17 November 2020 Dr Nathan Hartin reported spinal deformity radiographs performed on 16 September 2020 demonstrated compression fracture at L4 where there is significant local kyphotic deformity creating a trajectory to significant positive sagittal balance. He agreed with Dr Suttor that surgery would be inadvisable given the claimant’s significant osteoporosis. He stated surgical correction would require a spinal osteotomy through the L4 level and instrumentation extending from L2 to the pelvis. He considered the high risk of instrumentation failure and the risk of the surgery itself meant the risks of surgery would outweigh any potential benefits. He described her injury as disabling.
On 13 June 2023 Dr Hartin reported Ms Villanueva had severe lumbar kyphosis relating to the L4 fracture affecting her ability to stand erect and therefore her activity tolerance.
On 2 March 2023 Dr Ong participated in a case conference with Ms Villanueva and Pat from the insurer. She reported constant back pain, and numbness in the left leg on and off. She was not able to stand straight, she needed to hold on and could not undertake domestic tasks including cleaning, washing clothes, and cooking.
Rehabilitation Services, Patrick Callaghan, 6 March 2022
Mr Callaghan undertook an activities of daily living assessment on 6 June 2022.
Ms Villanueva confirmed the osteoporosis had been non-symptomatic until after the accident.Ms Villanueva lives in a two storey home with four bedrooms and two bathrooms where the kitchen and living space is downstairs and the bedrooms upstairs. She lived with her two sisters. Mr Callaghan reported Ms Villanueva had been sleeping on a downstairs lounge chair due to the difficulty in utilising the staircase to access the upstairs bedroom.
Mr Callaghan reported Ms Villanueva relied on her sisters for preparation of all meals due to her lower back symptoms inhibiting her standing tolerance and her inability to lift and or carry. Ms Villanueva’s sisters were responsible for cleaning of the bathrooms and kitchen, for mopping and sweeping and for laundry. Generally, Ms Villanueva was driven by one of her sisters when required to leave the home.
Mr Callaghan recommended Ms Villanueva continue receiving domestic assistance from her sisters on the basis the care routine was appropriate, and she did not wish to receive care from an external company.
Imaging
MRI lumbosacral spine, 21 November 2019 – the reported concludes:
“1. Wedge compression fracture L4 – no acute signs.
2. Right L45 paracentral herniation contracting right L5 nerve root and associated severe right foraminal stenosis.
3. Central L1/2 herniation with annular tear, no stenosis.”
X-ray lumbosacral spine, 13 December 2019 – the report concludes:
“There is an L4 crush fracture associated with severe loss of anterior vertebral body height. There is grade 1 anterolistheses of L3 on L4 by approximately 5mm. There is focal lumbar kyphosis centred at L4, as well as a lumbar curvature convex to the left.”
Bone Mineral Densitometry, 16 December 2019 – the report concludes:
”Bone mineral density within the lumbar spine and RIGHT femoral neck is in the osteoporotic range.
Bone mineral density within the LEFT femoral neck is in the osteopaenic range.”
Lumbar spine radiographs, 28 September 2020 – the report concludes:
“Stable L4 superior endplate crush fracture associate with severe anterior loss of height”.
MRI lumbar spine, 13 June 2023 – the report concludes:
“There is a chronic L4 vertebral crush fracture associated with up to 70 % of anterior loss of vertebral body height with an associated vertebral kyphotic deformity, without evidence of associated cauda equina compression. Multilevel spondylotic changes are as described.”
EOS – low dose X-ray spine, 13 June 2023 – the report concludes:
“Findings – The vertebral bodies have been numbered using the standard of nomenclature of seven cervical, twelve thoracic and five lumbar type vertebrae.
Mild broad thoraco-lumbar kyphosis convex to the right. Using the references of the superior endplate of T4 and the inferior end plate of L4, the Cobb angle measures 20 degrees.
Straightening of the normal cervical lordosis and thoracic kyphosis.
Straightening of the normal lumbar lordosis with a focal kyphotic deformity centred on L4.
Superior endplate fracture of the L4 vertebral body with up to 65% loss of vertebral body height anteriorly.
Grade 1 retrolisthesis/retropulsion of the posterosuperior aspect of the L4 vertebral body relative to L3 measuring 3mm.
Vertebral body heights within the remainder of the spine maintained.
Intervertebral disc heights within the cervical spine are maintained.
There is pelvic retroversion:
·Pelvic incidence – 61 degrees.
·Sacral slope – 27 degrees.
·Pelvic tilt – 34 degrees.
Kyphosis L1/S1 – 10 degrees.
Marked positive sagittal balance: SVA measures 182mm.
Positive coronal balance: C7-CSL lies 81 mm to the right of the midline at level of S1.
Overall sagittal spine-pelvic alignment is imbalanced with compensatory mechanisms by pelvic retroversion and knee flexion (13 degrees).
With the patient standing, the right acetabulum lies 3 mm superior relative to the left.”
Medico-legal assessments
Dr Uthum Dias, occupational physician
Dr Dias assessed the claimant and provided a report dated 16 October 2020. He reported she has continued to suffer from debilitating symptoms of lower back pain, stiffness and discomfort and associated pins and needles radiating down both legs. She also suffered from tension headaches, fatigue and psychological comorbidity because of the accident.
Dr Dias reported Ms Villanueva can undertake self-care activities but has to pace herself.
He reported Ms Villanueva lived with her two older sisters and relies on them to perform all the cooking and domestic cleaning duties at their home. She is also unable to do grocery shopping.
Dr Dias reported Ms Villanueva walked with a stiff antalgic gait pattern relying on a four pronged walking stick. He described “a bent kyphotic posture” and noted she sat throughout the history taking component of the assessment leaning forward indicating significant discomfort in her lumbar spine.
Dr Dias diagnosed an acute closed head injury and soft tissue injuries to the left shoulder, left elbow, right and left hips, both legs and both feet and toes. He also reported:
“Ms Villanueva suffers from chronic severe lower back pain, stiffness and discomfort with an associated chronic right L5 radiculopathy and an associated L3/L4 anterolisthesis (grade 1 – 5mm) secondary to an acute severe L4 crush fracture with a (52% loss of vertebral body height) and secondary significant focal lumbar kyphoscoliosis.”
He reported as a result of her lower back pain Ms Villanueva:
“…had to rely on her sisters to perform all the cooking and domestic cleaning duties at their home. … She has also not been able to perform grocery shopping duties on a consistent basis since the subject incident and relies upon her older sisters to perform grocery shopping tasks.”
Dr Dias concluded Ms Villanueva had required approximately eight hours of domestic assistance per week on a regular basis over the previous 23 months and was likely to continue to require approximately seven hours of domestic assistance per week on an indefinite basis.
Dr John Bosanquet, orthopaedic surgeon
Dr Bosanquet assessed the claimant and provided a report dated 29 October 2020. He reported Ms Villanueva lived with her two sisters and was not doing any cooking or cleaning. He reported prior to the accident Ms Villanueva provided her share of domestic duties.
On examination he reported:
“This revealed a very wasted and frail woman, measuring approximately 150cm and weighing around 45kg. She was flexed to at least 45º and walked slowly. She had a marked kyphosis and a scoliosis to the right. Thus, her lumbar spine movements were restricted. Lying on the couch, her straight leg raise on both sides was to 60º. There was no deficit in her lower limbs and her reflexes were present. She was tender over the L4 spinous process where there was a kyphotic prominence.”
Dr Bosanquet concluded Ms Villanueva’s restrictions were difficulty with prolonged sitting or standing and driving distances. He reported she required assistance with activities of cleaning, shopping, cooking, and washing and would require assistance in the future. He specifically stated she would require assistance with vacuuming, dusting, cleaning the bathroom, washing, and hanging out the washing and noted the assistance would be required for the long term.
Dr Graham Vickery, psychiatrist
Dr Vickery assessed the claimant and provided a report dated 9 August 2021. He reported any incapacity in functioning with respect to personal care, domestic assistance and home/garden maintenance tasks was due to her physical injuries and not her psychological injury arising from the accident.
Vocational Capacity Centre, Vocational assessment report, 2 December 2021
Dr Matthews Hendricks undertook an assessment of the claimant’s vocational potential. In undertaking this assessment Mr Hendricks reported the following limited tolerances: sitting – up to 30 minutes, she needs to lean forward and have a special cushion to sit for this period of time; standing – up to 10 minutes; driving – up to 10 minutes; walking – up to one block with the assistance of a four-pronged walking stick.
The assessment was undertaken from a psychological perspective and did not take into consideration any evaluation of Ms Villanueva’s physical limitations.
Medical Assessments
Medical Assessor Ian Cameron, 3 July 2021
Medical Assessor Cameron assessed the claimant on 22 June 2021 and provided a certificate dated 3 July 2021.
He concluded soft tissue injury to the toes, feet, legs, left elbow, left shoulder, hips, head, cervical spine, and thoracic spine had resolved.
He assessed 20% whole person impairment (WPI) in respect of the L4 compression fracture of the lumbar spine caused by the accident. He assessed 0% WPI in respect of scarring.
Medical Assessor Doron Samuell 31 August 2021
Medical Assessor Samuell assessed the claimant on 19 August 2021 and provided a certificate dated 31 August 2021. He certified the claimant had sustained post-traumatic stress disorder caused by the accident resulting in a WPI of 26%.
0