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AER v Allianz Australia Insurance Limited [2019] NSWDRS MR 121

Overview

Jurisdiction: Merit Review

Catchwords: Statutory benefits – travel expenses – transport modification – treatment and care – rehabilitation – cost effective – vocational ability – workplace modification

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 1.4, 3.1, 3.24, 6.5, 7.13, Schedule 2
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018
  • Work Health and Safety Act (NSW) 2011

Parties:

  • AER – Claimant
  • Allianz Australia Insurance Limited– Insurer

Disclaimer: This decision has been edited to remove all unique personal identification including the name of the claimant.

Merit review certificate

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Issued under section 7.31(4) of the Motor Accident Injuries Act 2017

The Claim:

  • Claimant: AER
  • Insurer: Allianz Australia Insurance Limited
  • Claim Number: 10093680

The Reviewable Decision:

  • Reviewable decision-maker: Marcus De Courtenay
  • Date of Reviewable decision: 26 March 2019
  • Nature of Reviewable decision:

The Merit Review:

  • Our Reference: 10093680
  • Merit Reviewer: Colin Stoten
  • Date of Merit Review Certificate: 13 June 2019

Merit Reviewer’s Determination

This determination relates to a merit review matter, which is a reviewable decision under Schedule 2(1)(i) of the Motor Accident Injuries Act 2017, about whether certain travel expenses are reasonable for the purposes of section 3.24(1)(a).

My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the following decision is made in substitution for the reviewable decision:
    • The Claimant is entitled to recover from the Insurer travel expenses of $6,403.00.
  • Effective Date: 13 June 2019.
  • Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $nil.

A brief statement of my reasons for this determination are attached to this certificate.

Colin Stoten

Merit Reviewer, Dispute Resolution Service

Merit Reviewer's Reasons for Determination

Background

1. This is an application made by the injured Claimant for reimbursement of airfares paid by her and said to be a consequence of injuries arising from the accident which occurred on 28 December 2018.

2. The amount claimed is $7,733 and relates to the purchase of a business airfare and the cancellation of an existing economy airfare in order for the Claimant to travel from Sydney to London and return in comfort.

3. The background to the dispute is that the Claimant had purchased an economy class airfare prior to her motor accident and which involved the Claimant travelling from Sydney to London on 22 January 2019. The Claimant says that she is a Production Manager for the XXXXX Theatre Company and the travel was essential for her to undertake her employment obligations as a Production Manager.

4. The Claimant says that as a result of the accident which involved injuries by way of a chip fracture to the right zygomatic process of the frontal bone, laceration of her right eyebrow, L1 burst fracture and abrasions to her right shoulder, bilateral knees and right thumb PIP, she was unable to cope with sitting upright in economy for the length of travel required to London and return.

5. The Claimant obtained and relies upon a medical certificate from her treating general practitioner, Dr Kate Bessey dated 9 January 2019 in which she says that as a result of the Claimant’s injuries and her need to travel to the UK on 22 January 2019 for work, she advised the Claimant that undertaking the journey by sitting upright would be detrimental to her recovery and to her health.

6. Dr Bessey was clearly of the view that the Claimant should travel to the UK in a seat which allows her to recline to 180°. I observe that this is understandable having regard to the serious fracture of L1, which occurred as a result of the accident.

7. The Claimant submitted a request for reimbursement of the additional airfare to Allianz on 24 January 2019, that is, two days after she had left Australia for London.

8. Allianz were of the view that the Claimant was not entitled to recover statutory benefits for the travel expenses claimed and relied upon s.3.24 of the Motor Accidents Injuries Act 2017 (“the Act”).

9. The Claimant sought a review of that determination and that review which occurred on 26 March 2019 reaffirmed the original decision of the Allianz Case Manager.

Documents and Information

1. I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submissions

Claimant's Submissions

10. The Claimant’s submissions are as follows:

(ii) s.3.24 of the Act entitles the Claimant to statutory benefits for treatment and care.

(i) s.3.1 of the Act entitles the Claimant to statutory benefits as a result of an injury from a motor accident.

11. The Claimant was and is employed as Production Manager with XXXXX Theatre  Company.

12. On 6 December 2018 the Claimant purchased an airline ticket to the UK for work purposes. The departure date for that booking was 22 January 2019.

13. The Claimant was injured on 28 December 2018 and suffered the injuries above referred to. In addition the Claimant was certified fit for restricted work only being four hours per day, five days per week.

14. The Claimant attended upon her treating general practitioner, Dr Bessey who prepared the report above referred to and recommending that she travel with the benefit of a seat which reclined to 180°.

15. The Claimant contacted her travel agent and discussed the cheapest option for her to travel with a requirement of a seat which reclined to 180° and obtained advice from her travel agent that the most cost effective manner was to cancel her existing fare with Qantas and book it through QATAR Airlines at a cost of $7,733.

16. The Claimant followed the advice of her GP and her travel agent and cancelled her existing economy booking and rebooked the business class booking as recommended.

17. The Insurer disputes the nature and reasonableness of the expense as being an expense for which it is liable to make payment or reimbursement.

18. The Claimant’s solicitors refer to the definition of treatment and care in s.1.4 of the Act and notes that the definition incorporates rehabilitation and home and transport modification; and workplace and educational facility modifications.

19. Furthermore, rehabilitation is defined in s.1.4 to include amongst other things, the process of enabling a person to attain and maintain their full physical, mental, social and vocational ability.

20. The submission is made that the method by which the Claimant is able to achieve her optimal capacity for engagement in vocational pursuits is a necessary part of treatment and care and rehabilitation because the Claimant, were it not for the purchase of the business class airfare, would have been unable to participate in work activities which had previously been agreed upon between the Claimant and her employer.

21. The Claimant’s solicitors also point to the objects of the Act which encourage early and appropriate treatment to achieve optimum recovery and to maximise their return to work.

22. Further reference is made in s.6.5 of the Act relating to the Claimant’s duty to minimise her losses and this is further referred to in s.5.68 of the Motor Accident Guidelines. There is also reference to publications on the SIRA website. In particular, reference is made to what is reasonable and necessary and it is referred to as being directly related to the injuries sustained in the accident; helping the insured person get back to their usual activities and be cost effective.

The Insurer’s Submissions

23. The Insurer says that firstly business class flights are not travel expenses related to the Claimant’s treatment and care in reliance upon s.3.24(1)(b) of the Act. It says that taking this subsection literally that the travel was not in order to obtain treatment and care for which statutory benefits are payable.

24. The Insurer disputes the characterisation of the business class flights as being a rehabilitation, home and transport modification, educational event and vocational training, or workplace and education facility modification.

25. The Insurer refers to SIRA Guides for CTP vocational support which provides guidance as to the relevant criteria to be considered in respect of rehabilitation pursuant to the subsections and definitions referred to.

26. In particular the Insurer says that such flights are not appropriate for the type of injury; not usable for a reasonable period of time; not cost effective; and such flights should be provided by the employer pursuant to its obligations under the Work Health and Safety Act 2011.

27. In respect of its submissions regarding the above, the Insurer says that the Claimant’s capacity for work at the time was restricted to five hours per day and the flight which she undertook was much greater than this and appears therefore to be entirely contrary to the indication of the Claimant’s capacity limited according to her treating doctors.

28. It is further said that requests for workplace modifications and equipment are to be used for reasonable period of time and solely or mainly for the use of the Claimant. The expense referred to, which is over $7,000 is not reasonable in order for the Claimant to attend her work duties for a period of one week.

29. It is further said that business class flights were not cost effective and points to the SIRA Guides which refer to reasonable cost or other alternatives having been explored and considered. The Insurer says that no such alternatives were explored and the Claimant acted without first consulting the Insurer in this regard.

30. The submission finally points to the fact that the business class flights ought to have been provided by the employer pursuant to its obligations under the Work Health and Safety Act 2011.

Legislation

2. In conducting my review I have considered the following legislation and guidelines:

  1. Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  2. Motor Accident Guidelines effective 13 July 2018 (“the Guidelines”)
  3. Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”)

Reasons

31. The Claimant was and is a production Manager with the XXXXX Theatre Company and was required to fly to London in the course of that employment.

32. Her flight to London had been arranged prior to the accident. The cost of that flight was met by the Claimant.

33. The Claimant was injured in the accident which occurred on 28 December 2018 and as a result was certified by her medical practitioner to be unfit to travel by air to London unless she was able to recline her seat to 180 degrees as required. Amongst her injuries was a burst fracture of L1.

34. The Claimant took advise from her travel agent as to the cheapest method of travel as recommended by her GP and after discussion the agent proposed the most cost effective method which the Claimant accepted and paid for. This required her to cancel her existing Qantas economy fare and rebook with Qatar Airlines a business class fare.

35. The original Qantas fare was $1330.00 and the Claimant was able to recover some of that fare when cancelled but was still out of pocket $850.00. The Qatar fare was $6,883.00. This meant that the total cost to the Claimant of the flight was $7,733.00 however the Claimant, if uninjured, would still have been liable to pay the original fare of $1,330, so that the additional expense incurred by her totalled $6,403.00.I consider the Claimant is entitled to recover that sum from the Insurer for the following reasons:

  1. Section 3.24 of the Act provides an entitlement to an injured Claimant to receive statutory benefits for treatment and care.
  2. Section 1.4 of the Act defines what is included under the umbrella of what is treatment and care and specifically refers to rehabilitation which is defined to include “the process of enabling….the person ……to maintain…..(b) full……vocational ability”.
  3. There appears to be no dispute as to the factual matters I have referred to in these reasons and in an ideal world the Insurer would have perhaps received notice of the Claimant’s intention before she flew out of Sydney on 22 January however the accident had occurred only 3-4 weeks before the flight and the Claimant was clearly still in recovery mode with little opportunity to seek legal advice and make a claim.
  4. The Insurer also says that it was the Claimant’s employer who is legally obliged to make payment not the Claimant. That may be so but the only evidence before me is that it was the Claimant who paid for the original airfare and who made the various travel amendments so she is entitled to pursue recovery from the Insurer.
  5. I do not accept the Insurer’s narrow interpretation of the Act and consider treatment includes rehabilitation which includes the process of enabling an injured person to maintain their full vocational ability. It would be no different in principle to an injured person who could no longer travel to work on public transport and as a result of injuries could only travel by taxi. It is the unusual nature of the claim and the expense of it which attracts scrutiny.
  6. The Insurer says the amount incurred is unreasonable however does not indicate how it is unreasonable in circumstances whereby the Claimant needed to travel to London for work purposes. The Claimant clearly holds a senior role as a production manager with a well known Theatre company and it was obviously necessary to travel because the booking was originally made well prior to the subject accident.

Legal Costs

36. This application is made pursuant to Schedule 2(1)(i) of the Act. Costs are payable pursuant to Schedule 1 of the MAI Regulations 2017. Costs of a merit review are only recoverable if the dispute concerns a regulated merit review matter. As a dispute about a treatment issue under section 3.24 is not o regulated merit review matter no costs are payable.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the following decision is made in substitution for the reviewable decision:
    • The Claimant is entitled to recover from the Insurer travel expenses of $6,403.00.
  • Effective Date: This determination takes effect on 13 June 2019.
  • Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $nil.

Colin Stoten
Merit Reviewer
Dispute Resolution Service