Warner v Insurance Australia Limited t/as NRMA Insurance (No 1)
[2023] NSWPICMP 334
•18 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Warner v Insurance Australia Limited t/as NRMA Insurance (No 1) [2023] NSWPICMP 334 |
| CLAIMANT: | Kevin Warner |
INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 18 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of treatment disputes and claimant’s application for review under section 7.26; claimant knocked off moped in June 2019 fracturing L1, L3 and coccyx; four separate treatment disputes referred for assessment in original proceedings; one referred to another Medical Assessor (broken CPAP machine); three disputes referred to Medical Assessor (MA) Harrington who determined new mattress was related and reasonable and necessary but home modifications and lymphatic massage machine not related and not reasonable and necessary; preliminary issue about what was the subject of the review application and what had been allowed through to the Panel; claimant’s application for review did not challenge the new mattress assessment; insurer did not apply for review of that decision; Held – panel determined it had no power to review the new mattress assessment; consideration of section 7.17; 7.26(5); Wood v NRMA and section 42 of the Personal Injury Commission Act 2000; completion of home renovations commenced before the accident was not treatment within the meaning of section 1.4 and not “for the injured person” within the meaning of section 3.24(1); hire or purchase of a massage machine needed to treat claimant’s wife’s lymphoedema; before accident claimant provided massage services to her gratuitously; panel found massage machine not treatment “for the injured person” within the meaning of section 3.24(1) and section 3.26 did not apply as this was not domestic services being provided but health or nursing services; disputes about section 3.26 are a merit review matter not a medical assessment matter in accordance with schedule 2; certificates of MA Harrington concerning home modifications and lymphatic massage machine revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: · Revokes the certificate of Medical Assessor Harrington dated 31 October 2022 with regards to the medical assessment matters concerning the claimed home modifications (shed, paving and tiling). · Revokes the certificate of Medical Assessor Harrington dated 31 October 2022 with regards to the medical assessment matters concerning the hiring or purchase of a lymphatic massage machine. |
STATEMENT OF REASONS
INTRODUCTION
Kevin Warner was involved in a motor accident on 14 June 2019. He was stationary on his moped, wearing a helmet when he was rear ended by another vehicle.
Mr Warner, who was 66 at the time of the accident says he injured his neck and back in the accident, sustaining fractures at L1 and L3 and to his coccyx.
Mr Warner made a claim for statutory benefits against NRMA, the insurer of the vehicle that he says caused his accident. NRMA accepted liability and has paid some statutory benefits.
Five separate disputes about treatment have arisen in connection with the claim and Mr Warner has, through his solicitors, referred those disputes to the Personal Injury Commission (the Commission) for assessment in two separate applications, one lodged in 2021 and the other in 2022.
The Commission opened a file (proceedings numbered M10395945/21) in respect of the following four medical assessment matters:
(i) a new mattress;
(ii) home modifications;
(iii) a lymphatic massage machine, and
(iv) replacement of a continuous positive airway pressure (CPAP) machine.
The dispute about the replacement of the broken CPAP machine was referred to Medical Assessor Grainge for assessment and the remaining three disputes from this application were referred to Medical Assessor Harrington.
The Commission opened a second file (proceedings numbered M10529585/22), concerning Mr Warner’s referral to a rehabilitation specialist. An application for review in respect of those proceedings is the subject of separate proceedings and another determination.
On 31 October 2022 Medical Assessor Harrington determined the disputes he was asked to assess. The claimant lodged this application for review (the Review) in respect of the Medical Assessor’s decisions concerning home modifications and the lymphatic massage machine.
On 21 December 2022, a delegate of the President determined that there was reasonable cause to suspect a material error in the assessment and allowed the Review to proceed. The President then convened this Review Panel (the Panel) to conduct, in accordance with s 7.26 of the Motor Accident Injuries Act2017 (the MAI Act), the Review.
LEGISLATIVE FRAMEWORK
General matters
Mr Warner’s claim is governed by the provisions of 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 eligible persons under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
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 –
…
(c) 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.”
The phrase “treatment and care”, is defined in s 1.6 of the MAI Act as meaning:
“(a) medical treatment (including pharmaceuticals),
(b) dental treatment,
(c) rehabilitation,
(d) ambulance transportation,
(e) respite care,
(f) attendant care services,
(g) aids and appliances,
(h) prostheses,
(i) education and vocational training,
(j) home and transport modification,
(k) workplace and educational facility modifications,
(l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,
but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”
Section 1.4 also defines “attendant care services” as “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”. Domestic services are not defined in this section but are defined in s 3.26(5) in the context of gratuitous services “services of a domestic nature”.
Section 3.26 is headed “Statutory benefits for loss of capacity to provide gratuitous domestic services” and provides as follows:
“(1) An injured person is entitled to statutory benefits under this Division for the reasonable expenses incurred after the motor accident in employing a person to provide domestic services to the claimant’s dependants, but only if—
(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in this section—the claimant provided the services to those dependants before the motor accident, and
(b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and
(c) there is a reasonable expectation that, but for the claimant’s injury, the claimant would have provided the services to the claimant’s dependants for at least 6 hours per week and for a period of at least 6 consecutive months, and
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.
Statutory benefits are not so payable if the domestic services provided after the motor accident are provided gratuitously.”
Section 3.25 says:
“(1) No statutory benefits are payable under this Division for expenses incurred in connection with the provision of gratuitous attendant care services.
(2) In this section—
gratuitous attendant care services means attendant care services provided to an injured person for which the injured person has not paid and is not liable to pay.”
Dispute resolution
Chapter 7 of the MAI Act provides for the assessment of disputes by merit reviewers and Members of the Commission. Division 7.5 of the MAI Act provides for medical assessments by Medical Assessors of the Commission including provisions relevant to an original medical assessment such as Medical Assessor Harrington’s, further medical assessments and the review of medical assessments by this Panel.[2]
[2] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
As set out in [5] and [8] above, Medical Assessor Harrington was asked to assess disputes about four types of treatment. At the conclusion of his assessment of those four disputes he issued a single document comprising:
(a) certification in matter number M10395945/21 as follows:
(i)the new mattress “treatment” relates to the injury caused by the accident, is reasonable and necessary and will assist the recovery of the injured person, “if his old mattress was detrimental to his recovery”;
(ii)the home modifications “treatment” is not related to the injuries caused by the accident, is not reasonable and necessary and will not assist the recovery of the injured person, and
(iii)the lymphatic massage machine “treatment” is not related to the injuries caused by the accident, is not reasonable and necessary and will not assist Mr Warner’s recovery.
(b) certification in matter number M10529585/22, and
(c) a statement setting out the Medical Assessor’s reasons for the decisions contained in the certificates.
As part of his assessment of the four disputes, Medical Assessor Harrington examined the claimant on 26 October 2022. Mr Warner was at the time 69 years of age. The Medical Assessor takes a history of the accident noting the claimant was stationary on his moped when he was rear-ended, his scooter was knocked out from under him, and he landed on the bonnet of the car. He was wearing a helmet and protective clothing.
The claimant says he was taken to hospital where an L1 compression fracture was found and after discharge, further fractures of the L3 transverse process and coccyx were found.
Mr Warner says he was placed in a brace, reviewed by his general practitioner (GP) and saw a neurosurgeon. He had outpatient rehabilitation and said he was basically housebound for two years due to his ongoing back pain and neurological symptoms.
Mr Warner complained of neck pain with reduced movement. He did a bit of gardening and could do some light housework. He goes sailing but cannot do all of the things that need to be done on the boat. He reported pins and needles in his ulnar three fingers and numbness of both big toes but no other radicular symptoms.
He reported his wife has chronic lymphedema and before the accident he used to massage her legs. He now uses a lymphatic massage machine because he can no longer do it.
There were no neurological symptoms or signs of radiculopathy when he was examined.
Medical Assessor Harrington determined:
“It is my opinion that the treatment to date (physiotherapy and rehabilitation etc) is reasonable and necessary in the circumstances. I do not believe further treatment is required, including a further referral to a rehabilitation specialist.
I do not believe home modications are reasonable and necessary as a result of Mr Warner’s injuries causally related to the subject motor accident.
He tells me that he and his wife have purchased a portable massage machine to help his wife’s lymphatic drainage. I do not believe this is reasonable and necessary for Mr Warner’s injuries caused by the subject motor accident.
A new mattress may be considered reasonable and necessary if it has been assessed that his previous mattress did not provide adequate lumbar support and was detrimental to his recovery.
Given the tiemframe and rehabilitation to date, I do not believe Mr Warner requires a referral to a rehabilitation specialist.”
ISSUES IN DISPUTE
The claimant’s submissions
The claimant summarises the findings of Medical Assessor Harrington with regards to his decision that a new mattress is related to the injuries and reasonable and necessary. The claimant does not point to any errors in that determination.
The claimant says in respect of the other disputed treatment that:
(a) the Medical Assessor failed to consider or take into account the relevant legislation and the definitions of attendant care which is a type of treatment;
(b) the Medical Assessor summarised the insurer’s submissions but does not explain his reasoning and has not considered the definition of treatment at all;
(c) the purchase of the massage machine and the home modifications are “everyday” expenses included in the non-exhaustive list in s 1.4 of the MAI Act;
(d) Dr Laycock and Dr Holford state the claimant has been providing massage services for his wife for many years and no longer does so due to his injuries;
(e) the claimant’s home modifications were commenced before the accident, but the claimant was unable to complete them because of his injuries and Dr Holford supports this;
(f) the claimant provided the massage services to his wife gratuitously and the purchase of the machine is not “gratuitous” and therefore falls within ss 3.24 and 3.26 of the MAI Act;
(g) if the claimant continued to provide the massage and was required to complete the home modifications, this would not assist with his recovery;
(h) Mr Warner’s wife comes within the definition of a dependent in s 3.27 of the MAI Act;
(i) the guidelines do not prohibit or limit these expenses;
(j) the Medical Assessor has misconceived the difference between attendant care services and treatment and care and has erred because he should have found the treatment came within the definition, and
(k) the treating practitioners support the need for the services.
The insurer’s submissions
The insurer submits[3] that the Medical Assessor noted the submissions from both parties and has not decided that the treatment and aids requested do not fall within the statutory definition of treatment and care.
[3] The submissions are dated 8 December 2022. The paragraphs are not numbers which makes referencing the submissions somewhat problematic.
The insurer says the Medical Assessor has considered the injuries, noted the conservative treatment and finds that was had been provided to date was reasonable and necessary. The insurer notes the assessor recounts the claimant’s evidence that his injuries and condition have stabilised and finds that no further treatment is needed. The insurer says the Medical Assessor has explained his reasons.
The insurer says the lymphatic massage machine is not treatment for the claimant’s injuries but for his wife’s condition, and that the Medical Assessor was required to assess the claimant’s treatment and care needs and not his lack of capacity to provide gratuitous services to his wife.
The insurer says the Medical Assessor has referred to the claimant’s treatment by Dr Holford and Dr Laycock and that therefore Medical Assessor Harrington must have read the medical reports.
CONSIDERATION OF THE ISSUES
Were s 3.28(1) certificates required?
For each medical assessment matter referred to him (mattress, home modifications, equipment purchase and rehabilitation referral) Medical Assessor Harrington certified in accordance with s 7.23(1) three things:
(a) whether each treatment was or was not related to the injuries caused by the accident;
(b) whether each treatment was or was not reasonable and necessary in the circumstances, and
(c) whether “for the purposes of s 3.28 … treatment … provided to the injured person will improve the recovery of the injured person”.
The Panel has been provided with a copy of the original application for medical assessment. It does not disclose that any disputes were referred to the Commission about whether, for the purposes of s 3.28 of the MAI Act, the treatment would improve Mr Warner’s recovery. This is not surprising because Mr Warner has sustained three fractures to his spine and clearly has non-minor, non-threshold injuries.
Section 3.28(3) and the issue of the improvement of recovery is only relevant to persons whose statutory benefits have ceased because they have minor or threshold injuries.[4] The parties have, in communication with the Panel, agreed that there was never an issue about s 3.28(3) in these proceedings and the insurer says that Medical Assessor Harrington’s certifications in respect of the s 3.28(3) medical assessment matter should be revoked. The claimant is silent on this.
[4] And who were injured before 1 April 2023.
The Panel notes that while the repeal of s 3.28(3) does not apply to Mr Warner’s accident and claim[5], the repeal of the provision concerning the resolution of s 3.28(3) disputes does apply.[6] As a result, the Panel is of the view it has no power to interfere with the certificate issued by Medical Assessor Harrington under s 3.28(3). This certificate was, at the time he issued it, a certification of a medical assessment matter declared as such in Schedule 2(2)(c) of the MAI Act. The provision in the schedule has been repealed without any saving provision.
Is the “mattress” matter before the Commission?
[5] The Motor Accident Injuries Amendment Act 2022 [23] repeals s 3.28(3). Amendment [23] is included in Schedule 4 of the MAI Act, Part 7, cl 15 and only applies to accident occurring after 1 April 2023.
[6] Motor Accident Injuries Amendment Act 2022 [47] repeals Schedule 2, cl 2(c). Amendment [47] comes within Schedule 4 of the MAI Act, Part 7, cl 14 and applies to motor accidents occurring, claims made and proceedings pending before 1 April 2023.
Relevant provisions of the MAI Act
The term “medical assessment” is defined in s 7.17 as the “assessment of a medical assessment matter”. Section 7.17 also defines a “medical dispute” as a dispute between a claimant and an insurer about a “medical assessment matter”.[7]
[7] It also includes within the definition an issue about a medical assessment matter that arises in court proceedings or claims assessments.
Schedule 2(2) of the MAI Act declares five matters to be “medical assessment matters for the purposes of Part 7” including:
“…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 (Entitlement to statutory benefits for treatment and care)”.
A dispute that arises between a claimant and an insurer about a medical assessment matter may be dealt with by the insurer under Division 7.3 of the MAI Act on internal review and may then be referred to the Commission for assessment in accordance with Division 7.5 of the MAI Act.
Section 7.26 concerns the review of medical assessments, such as Medical Assessor Harrington’s by a review panel. Noting the definition of “medical assessment” from s 7.17, this section therefore provides as follows:
“(1) A claimant or an insurer may apply to the President to refer a medical assessment [of a medical assessment matter] under this Division by a single medical assessor to a review panel for review.
(2) An application for the referral of a medical assessment [of a medical assessment matter] to a review panel may be made only on the grounds that the assessment [of the medical assessment matter the subject of the application] was incorrect in a material respect.
(3) …
(4) …
(5) The President is to arrange for the medical assessment [of a medical assessment matter] to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment [of a medical assessment matter] was incorrect in a material respect having regard to the particulars set out in the application.
(5A) …
(6) The review of a medical assessment [of a medical assessment matter] is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment [of the medical assessment matter] is concerned.
(6A) …
(7) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.
(8) …
(9) Section 7.23 (Status of medical assessments) applies to any new certificate or new combined certificate issued under this section.
(10) …”
Is there a dispute about the “mattress” matter?
The claimant has not included particulars (within the meaning of s 7.26(5)), in either of his applications for Review, about any errors in Medical Assessor Harrington’s decision concerning the “mattress”.
The insurer has not lodged an application for review in respect of the “mattress” medical assessment matter alleging that Medical Assessor Harrington’s determination of it contains a material error.
The President’s delegate’s decision does not mention the mattress or indicate that the medical assessment matter concerning the mattress has been referred to the Panel.
The Panel is not therefore of the view that the medical assessment matter concerning the new mattress is under review and the parties have been advised that the Panel will not be considering it.
The Panel is of the view that this is consistent with the decision of Justice Wright in Wood v Insurance Australia Group Limited trading as NRMA Insurance[8] that Medical Assessors (and by extension Review Panels) need only assess what is disputed between the parties. In Mr Warner’s case, neither he nor the insurer have lodged an application for review disputing the decision made by Medical Assessor Harrington of the “mattress” medical assessment matter. The “mattress” medical assessment matter therefore was not disputed and should not be reviewed by this Panel.
[8] [2022] NSWSC 1290 at [50].
This is also consistent with s 42 of the Personal Injury Commission Act2020 which requires medical assessors (and review Panels) to resolve the “real issues in the proceedings” and the Panel is of the view this means the issues in dispute between the parties. As neither party has identified an error in the decision about the mattress in their application or reply, it was not a matter in dispute before the President’s delegate. As the Panel obtains its power to Review a medical assessment matter from the President’s delegate and as the delegate was not required to consider the “mattress” medical assessment matter it follows that the Panel has no power to consider it.
The dispute about the mattress is just one “medical assessment matter” out of four assessed by Medical Assessor Harrington. It was assessed in a joint examination and after a joint consideration of the evidence and certified in a joint decision document however, the certificate of assessment of that one medical assessment matter is not under review and therefore is not to be considered by this Panel.
Are the “home modifications” treatment?
The insurer’s letter of 4 February 2021 declined to undertake an internal review of the insurer’s decision to decline to pay for the home modifications on the basis that this was not treatment and care within the definition in s 1.4 of the MAI Act. No further explanation or reasons were provided.
The claimant submits that the definition of treatment includes home modifications and that therefore there is power to determine it. The claimant says the definition of “everyday expenses” in s 1.4 “gives examples of what may constitute everyday expenses but is not an exhaustive list”. There is no definition in s 1.4 of “everyday expenses” as asserted by the claimant. There is a definition of “treatment and care” which provides an exhaustive list. Only those things listed, come within the meaning of the phrase “treatment and care”. The section does not use the word “include” or “including” which would suggest a non-exhaustive list.
Section 1.4 does contain a non-exhaustive list of the type of services contemplated by the phrase “attendant care services” because it uses the words “and includes (for example)” services which provide assistance to injured persons for “everyday tasks”.
The claimant argues that home modifications including finishing a partly built shed, paving and tiling is treatment and therefore reasonable and necessary and related to his lumbar spine injury. The claimant’s letter to NRMA dated 14 December 2020 and his submissions explain that the claimant had intended to construct and complete the shed with his own labour but could not do so because of his injuries. The claimant said the driveway had been excavated before the accident and was prepared for the laying of pavers and he had to employ someone to do that work because he could not do it.
Section 3.24 provides that an injured person is entitled to statutory benefits for expenses incurred in providing treatment and care “for the injured person”. Section 1.4 defines treatment and care to include “home and transport modifications”. When those two sections are read together, the Panel is of the view that Mr Warner is entitled to statutory benefits for the provision of home modifications undertaken for him to alleviate or address physical limitations and restrictions caused by his injuries.
Statutory benefits for modifying a home “for an injured person” would usually cover the provision of grab rails in bathrooms or ramps at the front or back door to improve accessibility to an existing home. Home modifications are undertaken because of and for the injured person’s injuries. Completing renovations commenced before the accident but which were unable to be completed because the claimant could not do so is not, in the Panel’s view treating the claimant’s injuries or providing treatment for him and his injuries.
It may be that the cost of these works is something that would sound in damages for economic loss in a common law claim and in accordance with s 4.5(1)(b) of the MAI Act but that is not a matter for this Panel to decide.
The Panel is therefore of the view that the dispute between Mr Warner and his insurer about “home modifications” listed by the claimant is not a dispute about treatment and therefore not a medical assessment matter declared as such under Schedule 2(1). Medical Assessor Harrington and this Panel therefore have no power to determine the dispute.
Did Medical Assessor Harrington have power to determine the massage machine dispute?
Section 3.24(1) provides that a person injured in a motor accident is entitled to statutory benefits for expenses incurred in connection with providing treatment and care “for the injured person”. The insurer says that the purchase of a lymphatic massage machine is not treatment for a medical condition caused by the accident and suffered by the claimant, but treatment for his wife’s medical condition. The claimant accepts this but says that before the accident the claimant was providing this massage himself on a gratuitous basis. The claimant argues that this is care and assistance contemplated by s 3.26.
Section 3.26 does say that statutory benefits are available for the “loss of capacity to provide gratuitous domestic services”. The claimant has asserted (with support from his GP) that he has lost the capacity to provide gratuitous massage services to his wife. He says his wife is a “dependent” within the meaning of s 3.26(5)(a)(i) and that he is entitled to statutory benefits for what he can do longer do for her.
The Panel is of the view that s 3.26 does not apply to the lymphatic massage machine for the following reasons:
(a) the definition of attendant care services in s 1.4 distinguishes between personal assistance services, nursing services, home maintenance services and domestic services;
(b) section 3.26(5) defines gratuitous domestic services as “services of a domestic nature” which have been provided gratuitously. Domestic services that are paid for would therefore be services of a domestic nature that have been or are to be paid for;
(c) the claimant’s provision of massage to his wife is not a service of a domestic nature. The Panel considers the phrase “domestic services” would include services such as cooking, cleaning or laundry. The claimant’s gratuitous massage of his wife’s limbs is more aligned to therapeutic or nursing services that he provides for her medical condition, and
(d) section 3.26(1) says that a person is entitled to benefits under this section for the reasonable costs of “employing a person” to provide the services. Mr Warner has not employed person to massage his wife’s limbs, but he has purchased a machine to provide the massage.
In any event, even if this massage service came within the definition of “services of a domestic nature”, the determination of a dispute about s 3.26 benefits is not a declared medical assessment matter under Schedule 2(2) of the MAI Act. Disputes about whether statutory benefits are payable under s 3.26 are declared to be a merit review matter under Schedule 2(1)(j) and are to be determined in accordance with Division 7.4 by a merit reviewer and not a medical assessor.
FINDINGS AND CONCLUSION
The Panel has found that the new bed and mattress dispute is not before the Panel. The Panel is not therefore confirming or revoking the certification of that medical assessment matter.
The Panel finds that the home modification (shed, paving and tiling) is not treatment within the statutory definition and therefore Medical Assessor Harrington had no power to determine it. It follows therefore that Medical Assessor Harrington’s certifications of that medical assessment matter must be revoked.
A dispute about statutory benefits under s 3.26 is not a declared medical assessment matter but is a declared merit review matter. The Panel finds that Medical Assessor Harrington had no power under Schedule 2 of the MAI Act to determine the dispute about whether statutory benefits were payable in respect of the purchase of the lymphatic massage machine. His certificates concerning that medical assessment matter will also be revoked.
3
1
0