Section 51 of the MAIA outlines an insurer’s statutory obligation to provide rehabilitation to injured claimants. It only arises when liability is admitted but the insurer can offer to provide rehabilitation without making an admission of liability. Such an offer is not deemed to be an admission of liability—s.51(2). If liability is admitted, and the claimant requests rehabilitation, the insurer is obliged to provide “reasonable and appropriate” rehabilitation.
An insurer can ask the Court to take into account the cost of the rehabilitation when assessing damages. Critically, notice of such must be provided to the claimant under s.51(4) including the cost of such and to what extent the assessment of damages is likely to be affected by the provision of rehabilitation services.
Relevantly, s.3(f) provides that one of the objects of the Act is to “promote and encourage, as far as practicable, the rehabilitation of claimants who sustained personal injury because of motor vehicle accidents.”
Rehabilitation includes the use of medical, psychological, physical, social, educational and vocational measures to restore physical or mental functions and to optimize the quality of life of a person who suffers the loss of impairment of physical or mental functions through personal injury.
The Motor Accident Insurance Commission issued Rehabilitation Standards in 2007 to ensure that insurers processes were aligned with the legislation. These should be carefully considered, noting that a balance is required between providing appropriate levels of rehabilitation and ongoing affordability of the scheme.
Especially in significant and catastrophic claims, it is important for the injuries to be identified and an action plan put in place. Quite often, rehabilitation measures will form the basis for the calculation of damages. For instance, if unsupervised carers are providing excessive or unnecessary hours of care, the costs will be magnified in the future to make very significant increases.
Often, difficulties arise when the parties attempt to agree on the specifics of a particular item, such as what type of vehicle or what modifications are necessary. Insurers are only obliged to pay what is reasonable, not what is ideal for the claimant.
Often, difficulties arise when the parties attempt to agree on the specifics of a particular item, such as what type of vehicle or what modifications are necessary. Insurers are only obliged to pay what is reasonable, not what is ideal for the claimant.
Similarly, the extent of an insurer’s liability to provide rehabilitation cannot exceed the extent of its common law liability to pay damages.
In the case of Rogers v Suncorp Metway Insurance [2013] QSC 230, the Plaintiff sustained severe brain damage. The solicitors proceeded with an Application for provision of a suitable motor vehicle, provision of access to sex workers and provision of a purpose built residence with 24 hour commercial care.
The most important issue was whether the provision of shared accommodation was appropriate, rather than a purpose built residence.
Investigations had raised concerns regarding the Plaintiff’s family, noting the Plaintiff had been provided with marijuana by family whilst in the BIRU and the Department of Child Safety had been involved with the Plaintiff’s daughter.
The Plaintiff’s solicitors withdrew the claim for the family to have full time care. They then conceded that provision of a motor vehicle was not required as such was available at the shared accommodation. MAIC had no objection to the access to sex workers.
Conditions were imposed regarding such access, with Boddice J finding that the care regime implemented by Suncorp was reasonable.
In Delaney v AAMI [2007] QSC 174, the insurer had attempted to impose conditions on the provision of rehabilitation services, proposing to only fund treatment provided by its proposed panel. Wilson J was critical of this approach noting that “the applicant’s rehabilitation needs seem to have been overshadowed by the respondent’s intransigent attitude that it will meet the costs only if the rehabilitation services are provided by persons it selects. This dictatorial attitude is inconsistent with the Legislature’s expressed intention to promote and encourage rehabilitation of injured persons and with the express provision in the Rehabilitation Standards which are binding on it that claimants be informed of their ability to exercise choice in the selection of an appropriately qualified and experienced service provider whose intervention is supported by the medical evidence.”
In the case of McKay v Suncorp Metway Insurance Limited, unreported,QSC No 2097/2009 the Claimant was unable to speak, feed herself or walk, with communication limited to eye and facial movements. She lived in an old double storey home in the Glasshouse Mountains. The applicant sought Orders that the claimant be cared for at home and proposed that the insurer modify the existing home and a purchase a vehicle which could accommodate her in the front passenger seat, rather than in a wheelchair in the back. During the hearing, Her Honour Atkinson J indicated that the claimant needed to be in her home and that a new home was required. Consent Orders were made consistent with Her Honour’s views.
These cases highlight the need to establish a rehabilitation regime early in the claim, ensuring the arrangements are fair and reasonable. Alternate dispute resolution should be attempted. Consideration should also be given to convening an early rehabilitation meeting with the relevant decision makers to identify provision of services.
