If you have been seriously injured in a road accident that was not your fault and if you have current medical and ongoing rehabilitation needs, the lodgement of a CTP claim can be and often is critical to secure funding for current and ongoing medical and rehabilitation needs
Section 51 of the Motor Accident Insurance Act 1994 (the MAIA) creates a statutory obligation on the CTP insurer to provide rehabilitation services.
A CTP insurer can and often will provide or offer to fund rehabilitation services prior to making an admission of liability. However, the statutory obligation to provide or fund rehabilitation services is only enforceable by an injured person after an admission of liability has been provided.
In the vast majority but not all CTP claims, liability or negligence is admitted by the CTP insurer.
People who are injured in road accidents are often unaware or uncertain about what the words ‘rehabilitation services’ means or what is able to be claimed from the CTP Insurer.
There is no absolute defined list of what is able to be claimed or sought as funding from a CTP Insurer, however, the case law in Queensland has allowed injured people to obtain funding for some or all of the following services:
- Medical treatment such as doctor visits including medical specialists, surgery, hospital fees and regardless of any funding from Medicare Australia or any private health insurer;
- Allied health care treatment such as physiotherapy, occupational therapy, speech therapy;
- Domestic assistance such as house cleaning, pool cleaning, yard services, nanny services;
- Rehabilitation Case Manager; and
- House modifications
In many CTP claims such as claims for whiplash and soft-tissue injuries, the funding for rehabilitation services might be limited to GP visits, physiotherapy, diagnostic imaging for x-ray, CT scans and/or MRI and psychology services if the injured person is suffering from accident-related driving or traffic phobia or PTSD. The process of seeking and obtaining funding for these services will involve either providing receipts to the CTP insurer and seeking reimbursement or obtaining a treatment plan from the proposed service provider and sending the treatment plan to the CTP insurer and making a request for funding under section 51 of the MAIA.
Once a request for funding has been made under section 51 of the MAIA, the CTP insurer has 10 days to provide a decision as to whether to accept or reject the funding request.
It is entirely up to the injured person who they wish to see for treatment in terms of their GP, medical specialist or allied health care provider. CTP Insurers often will propose treatment providers with whom they have a relationship, however, an injured person is under no obligation whatsoever to accept the service provider who is proposed or nominated by the CTP Insurer.
It is often best to discuss referrals with your treating GP for referrals for any other medical treatment or allied health care.
For road accidents which involve serious, major or catastrophic injuries, requests for funding for rehabilitation services can be the subject of debate and litigation and despite the CTP Insurer’s statutory obligation to provide rehabilitation services.
The writer was recently involved in such as case which ended up being determined in the Supreme Court of Queensland. The outcome of the case was highly favourable to my clients and was hard fought by the CTP Insurer – Suncorp Insurance. The case citation is McIntyre & Anor v. AAI Ltd [2021] QSC 251. The link to the decision is here: https://www.queenslandjudgments.com.au/caselaw/qsc/2021/251/pdf-view
The case relates to a family of four who were on a trip from the Gold Coast to Far North Queensland for a family holiday when a reckless and careless driver driving in the opposite direction overtook a semi-trailer when it was unsafe to do so causing a head-on collision with a combined force of approximately 200km/h. The driver of the vehicle at fault and his passenger both died at the scene. The innocent family of four survived with the parents in the front of the vehicle most seriously injured but all four passengers were injured.
As a consequence of both parents being seriously injured, and with the two children in the rear of the vehicle being young twin boys, a significant and wide range of rehabilitation services was required and particularly due to both parents being injured.
In many CTP claims involving serious or catastrophic injuries, it is often the case that the injured person will be significantly cared for by their spouse or another family member or friend. In this particular case, with both parents being seriously injured and with young children to care for, the impact of the accident and the consequences of the injuries on all four members of the family was profound and continues. A wide range of ‘rehabilitation services’ was required including medical treatment, rehabilitation services, domestic care and assistance.
As decision of Justice Davis reflects, Suncorp Insurance declined to fund a wide range of rehabilitation services which the court considered to be reasonable and appropriate. Suncorp Insurance was ordered to pay the costs of the hearing and in relation to one of the applicants, Suncorp Insurance was ordered to pay the costs of the hearing on the indemnity basis.
The writer hopes that the outcome in McIntyre and the significant costs order that Suncorp Insurance was ordered to pay will cause or create some change internally so that funding for rehabilitation services does not require judicial intervention into the future but time will tell.
A difficulty can arise when weighing up the costs of applying to the court for orders pursuant to section 51 of the MAIA as compared to the actual cost of the rehabilitation services. If the funding issues are likely to persist for a period of time and particularly a lengthy period of time and if there request for funding was at all times reasonable, an application to the court can be viable and worthwhile but the evidence in support of the application needs to be reasonable and compelling with the funding decision of the insurer unreasonable in the circumstances.
An important takeaway from the decision in McIntyre and with respect to funding for rehabilitation services generally is for injured people not to simply accept a refusal to fund by a CTP Insurer as being the end of the matter. The CTP Insurer is not the final arbiter or Judge on what is reasonable or not. The writer has observed many funding decisions in which funding has been initially rejected by the CTP Insurer and then reversed after some legal advocacy through correspondence or after filing the necessary court application. Another takeaway is for injured people to always know and understand that they have the right to determine or chose who they wish to appoint as their rehabilitation case managers, rehabilitation providers, doctors, medical specialists, physiotherapists, exercise physiologist and the like. It is not for the CTP Insurers to appoint who they wish or might like to provide the treatment with the enticement that funding won’t be an issue if they are able to appoint who they wish or who they have confidence in.
