1. Mr Mantakul and the claimant's mother attended the first preliminary conference and Mr Crampton appeared for the insurer. Discussion took place about whether the matter was a medical assessment matter or a claims assessment matter and whether the claim for travel was a statutory benefit or part of the common law claim.
2. Ms Anita Phothisenh, the claimant's mother was present at the teleconference and advised that she and the claimant lived on Smithfield Road at Edensor Park and the claimant attended a primary school at Mount Pritchard. She said that before the accident she had been catching the bus with her daughter, but they were now catching Ubers which the claimant's mother was paying for.
3. In the light of the potential overlap with Miss Phothisenh's damages claim, the claimant's appointed representative was encouraged to discuss the matter with the claimant's legal representatives Gerard Malouf and Partners. Directions were made for further evidence and final submissions, and another teleconference date was set.

1. The claimant lodged submissions dated 17 March 2025 and says:

(a) the claimant is entitled to statutory benefits for treatment and care and travel associated with such treatment and care under s 3.24 [4];

(b) treatment and care is defined to include rehabilitation as well as education [5];

(c) the definition of rehabilitation is cited [6];

(d) the ability to obtain an education is a means to obtain maximum independent living, full physical, mental, social and vocational ability, and full inclusion and participation in life. Rehabilitation does not have a medical basis [7];

(e) education is not defined in the Act or the Regulation and is not restricted and travel to and from school is part of the claimant's education [7] and [8];

(f) travel to and from school would be covered by the definitions of both rehabilitation and education and are therefore treatment and care [9], [14] and [15];

(g) if not a statutory benefit, then the cost of travelling to and from school would be a form of damages under s 4.5(1)(b) [10]-[12], and

(h) the claimant's treatment providers say that the claimant had difficulties walking and getting on and off a public bus [13].

1. Mr Mantakul disclosed at the third preliminary conference that these submissions were written by the claimant's solicitors and not him.

1. The insurer lodged submissions on 17 April 2025 and says:

(a) the insurer agrees the matter is a miscellaneous claims assessment matter under Schedule 2(3)(n)[1];

(b) the travel expenses in issue fall within the definition of "rehabilitation" in the MAI Act. After citing at [3] the definition, the insurer relies on a decision of Fowler v Youi Pty Limited (Fowler)[7] where I had said that rehabilitation is a process that has a beginning and an end. The insurer says in this case the process of rehabilitation ended before 9 September 2024 when the insurer declined to pay further Uber expenses [4];

(c) the insurer refers at [6] to the Kairros case conference summary of 2 July 2024, at [5] the 23 July 2024 report of Ms Trotter, at [8] the further case conference report and at [9] Dr Pham's 14 August 2024 certificate;

(d) the insurer submits at [9] that as of 14 August 2024, the claimant's rehabilitation in relation to her travel to and from school was complete and her entitlements to expenses related to that travel was concluded;

(e) if there is a dispute about whether the claimant needs further rehabilitation of her ability to travel to and from school by private car as opposed to public transport, that is a medical assessment matter [10];

(f) the insurer refers at [11] to the surgery on 1 October 2024, the case conference on 11 February 2025 [12] and at [13] to the rehabilitation case closure report of 12 February 2025 and says that the claimant's overall rehabilitation ceased as of 11 February 2025;

(g) the insurer says at [15]-[16] that travel expenses beyond 14 August 2025 are not reasonable and necessary in the circumstances and not related to the injury caused by the accident, and

(h) the insurer submits that the travel expenses incurred in getting to and from school are not travel expenses incurred in order to obtain treatment [17]. The insurer says at [19] that while education is listed in s 1.4 as one of the types of treatment and care in the definition, the claimant's school-based education is not a form of treatment and is not a statutory benefit payable by the insurer and therefore travel to it is not permitted by s 3.24(1)(b) or (c) [20].

1. A second preliminary conference was scheduled for Monday 2 June 2025 at 10.30am. At some stage during the preceding weekend, Mr Mantakul sent a message to the Commission advising that the claimant and her mother were delayed in Laos and would not be available. I excused them from attending and advised the preliminary conference would proceed.
2. At 10.30am there was no appearance by Mr Mantakul. The matter was discussed with the insurer's representative (Mr Crampton). I confirmed receipt of the additional documents and advised I was of the view that the matter was ready for assessment and could be determined on the papers. Mr Crampton agreed with that preliminary view.
3. I issued directions for a response and final submissions from the claimant and determined I would issue the decision on or before 17 June 2025. Mr Mantakul contacted the Commission agreeing the matter was ready for assessment and could be assessed on the papers.
4. After commencing writing these reasons two things became apparent:

(a) the insurer had previously approved private transport to and from school and elsewhere on the basis that transport assistance was a form of "attendant care service" and this issue had not been raised by the insurer or by Mr Mantakul in the proceedings, and

(b) the list of travel expenses claimed now provided by the insurer was extensive and it was unclear what had been paid and what had not been paid and therefore what precisely was in dispute.

1. A third teleconference was scheduled and was attended by the claimant's mother, Mr Mantakul and Mr Crampton. The following matters were discussed:

(a) the claimant's appointed representative had not provided accounts and receipts for travel to and from school after 9 September 2024 (when the insurer denied the claim) but maintained that travel to and from school by private transport after that date was necessary in the light of the claimant's injuries;

(b) the claimant's legal representative drafted the submissions dated 17 March 2025. Mr Mantakul said he did not know a great deal about the scheme and did not know about attendant care services and relied on the solicitor's advice;

(c) the insurer had approved previous requests for private transport services to and from school in internal review decisions dated 10 April and 8 July 2024 on the basis transport services were a form of attendant care;

(d) the insurer maintained that the expenses related to travel to and from school were not a form of attendant care or personal assistance services, and

(e) the expenses claimed and paid were a form of rehabilitation expense at the time but the expenses incurred after 9 September 2024 were not payable because the claimant's rehabilitation had ceased at that time.

1. The question of the insurer's costs was also discussed.

1. The claimant's mother has provided a statement dated 24 September 2024. This provides details of the motor accident, her daughter's injuries and disabilities, the treatment regime, treatment providers, and confirms a claim is made for economic loss and non-economic loss.
2. The statement provides no information about the issues in dispute but does suggest the claimant "cannot run, jump or walk properly". Ms Phothisenh says her daughter has pain in her body, wakes up crying and cannot walk more than 10 minutes and lies down after sitting for 15 minutes due to back pain. She says her daughter cannot do many activities in the playground and window shops sitting on the couch at the shopping mall as she cannot do much walking.
3. Ms Calisura, physiotherapist at Liverpool Hospital provided a "to whom it may concern" letter dated 25 January 2024.[8] She says:

(a) the claimant sustained a right sided femoral fracture and has been under the care of Dr Athreya with her next follow-up in May;

(b) she was due to start Kindergarten shortly and "she is not limited from participating in any activities";

(c) the claimant's mother was concerned about her daughter's walking and how she would manage at school and said Angelina limped when she gets tired;

(d) the claimant had a regular gait and had "slight in-toeing of her right leg" which was not interfering with function, she could manage stairs and move from the floor to standing and sitting without issue. She could jump and needed assistance to hop on her right leg, and

(e) she had "below age-appropriate catching, throwing and kicking skills".

1. Ms Calisura recommended an intense block of weekly physiotherapy for the first term of school followed by monthly check-ins.
2. Ms Gokeh, occupational therapy student on behalf of Ms Nowland, senior rehabilitation consultant (and occupational therapist) at Kairros[9] provided an activities of daily living report to the insurer on 13 February 2024. The claimant's mother and Mr Mantakul reported the claimant had personality and behavioural changes, with nightmares and she had skin issues.
3. The claimant was at this time not taking any medication and she was attending kindergarten.
4. The claimant was living with her mother, grandmother, 17-year-old brother and 15-year-old sister. She was dependent on her mother to go out due to her age. Before the accident it was said that the claimant accompanied her mother on shopping trips and that her aunt gave them a lift. Now they were catching Ubers with a car seat as the aunt was no longer available. The claimant's mother and Mr Mantakul expressed the view Angelina "cannot use public transport as they cannot guarantee she will get a seat and will not be able to stand for the distance to and from school due to her femoral fracture."
5. Ms Nowland wrote to Ms Calisura about the claimant's travel to and from school and Ms Calisura is reported as having responded on 13 February 2024 as follows:

"I agree with you that Angelina is quite independent and has great mobility to get around herself. In terms of being able to stand [on] public transport, I would actually be more concerned with her falling over rather than the endurance needed to stand for the whole duration (at least that what I assumed from your email).

I am definitely supportive of her use for public transport and will assess how her dynamic and static balance is, in a simulated public transport environment to ensure that she is safe for use. I will let you know how she goes."

1. Ms Nowland recommended the claimant be assessed and then commence utilising public transport with her mother.
2. Dr Pham, general practitioner (GP), has provided a medical certificate dated 26 March 2024[10] which says:

"Miss Angelina is in recovering stage of bilateral-femur facture, sustained in an MVA on 18 July 2023.

Angelina still needs to have further follow up and treatment and Children Hospital.

Currently Angelina is still suffering from walking long distances, she experiences bilateral leg pain when walking more than 10 metres.

I think she should have supported transport such as taxi, or uber when visiting doctor or hospital."

1. Ms Cameron, rehabilitation consultant at Kairros, wrote to the insurer after the case conference with Dr Pham.[11] The claimant was carried out of the appointment but sat through it independently. Ms Cameron notes the claimant's mother's complaints of Angelina not being the same, requests to be carried, her legs were tired, and she had more night terrors.
2. Dr Pham is reported to have said she would not sign off on a return to bus transport if the claimant's mother was uncomfortable with it but suggested she consider one or two days a week. The claimant's mother said she would be open to a gradual return to public transport after the Westmead review on 2 July 2024. The treating doctor supported obtaining an occupational therapist's assessment.
3. On 2 July 2024, another case conference occurred at Westmead and Ms Cameron reported to the insurer by email.[12] The claimant was observed to walk independently. The claimant's mother reported her daughter had reported the onset of lower back pain and had time off school. Dr Athreya did not participate but is reported to have said there was no concern and the fracture was healed. Surgery was discussed to remove the hardware, and the onset of back pain did not concern him.
4. It is reported that:

"He indicated that normal bumps, falls and play were not a concern. The [nominated treating surgeon] was in support of OT assessment to clear Angelina to catch the bus."

1. Ms Trotter's assessment of the task of travelling independently by bus to school is dated 23 July 2024[13]. She states that the purpose of the assessment:

"...was to determine Ms Angelina Phothisenh's ability to independently complete all tasks required to allow her to safely and age appropriately-independently catch the bus to/from school as required. Given Ms Phothisenh's young age (5 years old), she would not be catching the bus independently irrespective of her injury."

1. The method of assessment involved her accompanying the claimant and her mother on the usual bus journey and analysing her physical and cognitive skills. She observed:

(a) the claimant walked with her mother to the bus stop crossing a "very busy road";

(b) the route was about 300 m taking a "short cut" through a Buddhist temple;

(c) the claimant's mother waited with the claimant and identified the bus;

(d) no concerns were raised or reported as they transferred onto and then off the bus;

(e) the claimant's mother tapped on and off with an Opal card;

(f) no concerns were raised or reported as they moved to find a vacant seat or as they moved to get off the bus;

(g) the claimant's mother was encouraged to ask the bus driver for assistance if a seat could not be found;

(h) the claimant's mother was able to identify the correct stop to get off at, and

(i) the school was 120 m from the bus stop to the front gate and 50 m from the gate to where the claimant waits for her class.

1. The claimant reported no pain at the beginning or during travel but her leg was "a little bit sore" by the time they arrived at school.
2. Ms Trotter says:

"Education was provided regarding slight pain not being a significant reason to cease an activity, given otherwise good technique and nil other concerns being observed. Education regarding Ms Phothisenh's increase in walking capacity/tolerance being linked to increased functional trials of walking tasks as Ms Phothisenh continues to gain strength and confidence."

1. Ms Trotter concluded that Angelina was able to "physically catch the bus to school as required, with her usual supervision due to her age."
2. A further case conference occurred on 14 August 2024 and Ms Trotter reported to the claims officer by email[14] saying that the claimant voices no concerns, but her mother said her daughter could not play sports or do certain activities as usual. The report says:

"During the case conference, Dr Pham acknowledged my travel assessment report, and my conclusion (with support from the NTS) that there were no physical restrictions to Angelina returning to bus travel with her usual level of supervision.

Dr Pham asked Mum Anita what she thought about this. Anita advised she still feels that bus travel is unsafe and Angelina requires an Uber to/from school 5 days a week, and to the shops on the weekend.

Dr Pham then provided her medical opinion that there are no physical restrictions for Angelina, as she has healed from the previous fracture. This means Angelina should return to all her usual activities like other kids her age, including the ability to catch the bus with her usual supervision.

Anita continued to disagree that this was safe for Angelina, and Dr Pham advised Anita to take this up with her lawyers if she wanted, but that she would support a lifting of any restrictions for travel (with nil physical restrictions remaining in any capacity) for Angelina."

1. Dr Athreya, orthopaedic surgeon has written a "to whom it may concern" letter dated 2 September 2024.[15] The full text of the letter is:

"This is a support letter to state that Angelina still experiences pain and discomfort when walking long distances, including taking public transport and walking to and from school and to medical appointments. She would benefit from private transport to minimise the distance she has to walk."

1. In the GP notes on 11 September 2024[16], the claimant's mother took Angelina to see Dr Pham who records "Angelina had a fall in the bus - bruise to a knee last Monday 9 September 2024 (the mother had a photo of the bruise) - reassured that the injured skin will heal, no specific medication is needed."
2. The claimant had surgery on 1 October 2024 at Westmead Private Hospital to remove the surgical hardware from her left and right femurs.[17]
3. Dr Athreya provided a report to Dr Pham on 16 October 2024,[18] two weeks after the surgery and says:

(a) the claimant was reviewed with her mother and grandmother;

(b) she was in no pain, the wounds had healed, and she had a normal gait pattern;

(c) she required a short course of physiotherapy as "muscles were accessed to remove the plate", and

(d) she could return to normal activities but no organized contact sports for six weeks.

1. The claimant's mother was concerned about her daughter's forehead scar and a referral to a plastic surgeon was provided.
2. On 11 February 2025, Dr Pham wrote a medical certificate[19] which says:

"Today I have consulted Mis Angelina Phothisenh with her mother in present.

Angelina has recovered well from the last operation in October 2024. She has been reviewed post op by Dr Prasad Athreya - the orthopaedic specialist.

Angelina can now resume normal school activities but was advised to avoid organized contact sport."

1. On 12 February 2025, Ms Khan a rehabilitation counsellor with Kairros wrote a "return to life closure report"[20] ending the involvement of Kairros in the claimant's rehabilitation. This report summarises the activities and notes in particular:

(a) that the claimant has recovered well and has been certified by her GP to resume normal school activities avoiding contact sports;

(b) that the claimant can take public transport to and from school with her mother;

(c) has no mood issues and reported "occasional back soreness ...[which was] bearable and reduced with rest", and

(d) has been advised that a plastic surgeon would not consider revising the scar until the claimant was older

1. A report from Dr Courtenay dated 16 February 2025 was obtained at the request of the insurer and the claimant's solicitors Gerard Malouf and Partners. The claimant attended Dr Courtenay's rooms in North Sydney on 12 February 2025. This report addresses whole person impairment (WPI). It is unfortunate that the opportunity was not taken, at that time, to obtain an independent opinion from Dr Courtenay about the matters in dispute in the current proceedings.
2. The claimant was now in first class at school. There are some obvious errors in this report. The claimant was seven, not six as stated by the doctor and she had her surgery to remove the hardware in October 2024 not October 2023 as stated by this doctor.
3. He observes that "young children tend to do extraordinarily well from very significant injuries and Angelina is no different."
4. He advises the claimant not to participate in heavy sports. She said she plays handball but not soccer. He notes "she gets some ache in her legs at time according to her mother and she does get some aching in her low back at times."
5. He advised the claimant to keep away from "the more strenuous activities for fear of potential restructure" although as it was 16 months since the hardware was removed further fracture was relevantly unlikely. It was of course not 16 months since the surgery, only four months.
6. On examination he noted the claimant's scarring. He says she did not walk with a limp but that her mother reported "she walks a little differently". Dr Courtenay says, "she was quite mobile and active and agile". Both legs were of equal length, her hip movement was excellent on both sides. There was no problem with either knees, feet or ankles. In terms of her back "she had no limitation and had normal hyper flexibility of a child of that age."
7. Dr Courtenay expressed the opinion there was no more treatment necessary but that her leg lengths should be measured to ensure there was no difference due to the location of the left leg fracture. He assessed impairment at 6%.

PRELIMINARY ISSUES AS TO POWER AND JURISDICTION

1. After the second preliminary conference, the insurer provided an additional bundle of documents which included several typed lists of expenses. On each list, the Uber driver is identified by name, with a mobile phone number and the passenger's name stated as Angelina Phothisenh. Each list is signed and dated and the signature on the list appears to be the same signature as the one on a series of paper "rent receipts", "cash receipts" and "receipts", photographs of which have also been provided. These paper receipts indicate that the claimant's mother Anita has paid for a service and a business number appears and the annotation "Uber private" is marked on the receipt.
2. No issue has been raised by the insurer about whether the expenses claimed have been verified in accordance with s 3.27 and the relevant part of the Motor Accident Guidelines. Any dispute about that is of course a merit review matter and not a matter for me to determine.
3. Some of these expenses are said to be in respect of attending a doctor, others relate to trips to hospital including "waiting time" and some relate to the claimant's 2.5km trip to school and back. The cost of the trips to school are claimed at $50 plus $20 for waiting time, trips to the Westfield Shopping Centre at Liverpool are listed with a $70 fee. The most expensive trip was in the sum of $300 on 12 February 2025 to see a doctor at "Northshore". This may be the trip to Dr Courtenay and if so is an expense associated with a medico-legal examination and not a treatment expense. The list includes a trip to Mascot airport on 9 April 2024 and the return trip on 21 May 2024 ($100 each way) which was the subject of an earlier dispute (resolved at the internal review stage).
4. The per kilometer charge is stated on the lists to be $6.00 which I understand is nearly twice the current regulated Sydney taxi fare and well over the private car charge of $0.66 per km chargeable under the Motor Accident Injuries Regulation 2017 when an injured person attends a medical examination or assessment.
5. No issue has been raised by the insurer about whether the cost of these private Uber rides is reasonable or not. Any dispute about cost would also be a Merit Review Matter and not a matter for me to determine at the current time.
6. The lists of expenses claimed can be summarised as follows.

(a) from 4 April 2024 to 27 May 2024 - 11 trips totaling $690;

(b) from 28 May 2024 to 12 June 2024 - 13 trips totaling $690;

(c) from 13 June 2024 to 11 July 2024 - 24 trips totaling $1,480;

(d) from 2 July 2024 to 2 January 2025 - 13 trips totaling $1,400;

(e) from 6 July 2024 to 12 August 2024 - 21 trips totaling $1,320;

(f) from 11 July 2024 to 18 February 2025 - 6 trips totaling $780, and

(g) from 8 January 2025 to 12 March 2025 - 6 trips totaling $480;

1. The total of all of these expenses is $6,840.
2. In submissions dated 17 June 2025, the insurer says it has paid the sum of $10,950 in private transport assistance expenses from 30 September 2023 to 12 March 2025 which suggests there are receipts and lists of expenses not provided to the Commission.
3. AAMI's legal representative clarified in these latest submissions, and at the third teleconference that the scope of the dispute in the current proceedings is the claimant's travel to and from school by private transport from 9 September 2024 to date. The insurer says there has been no claim made by the claimant for travel elsewhere by private transport (for example to Westfield Shopping Centre) and that the insurer has continued to fund the claimant's travel to medical appointments by private transport since 9 September 2024.

1. The claimant's application indicated the dispute referred was a miscellaneous claims assessment matter about the reimbursement of travel expenses. The proceedings were allocated to me as a Member of the Commission and a Merit Reviewer because it was unclear precisely what was in dispute, or what was the most appropriate pathway for the resolution of the dispute.
2. The insurer has now clarified its arguments and says that the claimant's travel to and from school by private Uber vehicle is not a form of treatment and care, and therefore the expenses of that travel are not payable by the insurer as a statutory benefit under Division 3.4 of the MAI Act.
3. As has been explained in paragraphs 20 - 22 above, Parliament has, within Schedule 2 of the MAI Act, fragmented decision making in respect of disputes about treatment and care between:

(a) Medical Assessors who determine whether treatment and care is reasonable and necessary and related to the accident, and

(b) Merit Reviewers who determine amongst other things, whether the cost of treatment and care is reasonable and whether expenses have been properly verified.

1. The dispute in the current proceedings does not, at this stage, concern the cost of treatment or a medical assessment issue about treatment. The real issue in dispute between the parties is more fundamental than either of those things and concerns whether what Miss Phothisenh is claiming is a form of treatment and care and whether the insurer has a liability to pay for it.
2. The Commission has, under s 24 of the Personal Injury Commission Act 2020 (PIC Act), "the jurisdiction and functions that may be conferred or imposed on it by or under this Act ... or any other legislation" (such as the MAI Act). Membership of the Commission is stated in s 8 as including the President (and Deputy Presidents) and Members (principal, senior and general). The Commission, in accordance with s 31(1) "is to be constituted by one or more Division members of the Commission Division to which the function of dealing with the proceedings is allocated."
3. Medical Assessors and Merit Reviewers are identified in ss 32 and 33 as "decision makers" and are not members of the Commission and the Commission is not constituted by them. Medical Assessors and Merit Reviewers have limited and defined powers under the PIC Act and the MAI Act. In my view Medical Assessors and Merit Reviewers do not have inherent or incidental power to determine matters outside the scope of the specific dispute they have power to determine as listed in Schedule 2(1) or (2) of the MAI Act and they do not have power to determine something which a Member of the Commission has power to determine.
4. Whether a claimed service or support is a form of "treatment and care" within the statutory definition is not specifically declared as either a merit review, medical assessment or miscellaneous claims assessment matter. However, Schedule 2(3)(n) provides a Member of the Commission with power to determine "any issue of liability for a claim, or part of a claim, for statutory benefits, not otherwise specified in this schedule". Whether a treatment and care expense claimed as a statutory benefit is payable by the insurer is, in my view a dispute about the insurer's liability for that claimed statutory benefit. Because such a dispute is not specified elsewhere, it follows that a dispute about whether a claimed service or support is a form of "treatment and care" is a dispute about liability for a claim for statutory (treatment and care) benefits and is therefore a matter for a Member to determine and it is not a matter for a Merit Reviewer or Medical Assessor to determine as part of the dispute specified for them in the schedule.
5. If Medical Assessors and Merit Reviewers had an inherent or incidental power to determine whether some thing or some service claimed is or is not "treatment and care" within the jurisdiction then that could lead to inconsistent decision-making. A Medical Assessor might determine some disputed support or service is not a form of treatment or care while the Merit Reviewer might determine that it is. Both decisions could then be the subject of applications for review by a panel of three[21]. Having a Member make the decision about whether the disputed thing or service is a form of "treatment and care" provides a decision which binds the parties and then guides both the Medical Assessor and the Merit Reviewer in their decision-making.
6. I am therefore satisfied that the dispute in this case about whether the transport assistance provided to the claimant to and from school after 9 September 2024 is a matter which I can and should determine as a Member of the Commission and in accordance with Schedule 2(3)(n) of the MAI Act.

What is the appropriate pathway for resolution of this dispute?

1. The fragmentation of treatment disputes presents case management complications for the Commission because there is no order prescribed in the MAI Act (or the PIC Act or its Rules) for which dispute should be determined first. As the PIC Act has at its core the "guiding principle"[22] of facilitating the "just, quick and cost effective" resolution of disputes, this suggests in a treatment dispute involving both medical issues and cost issues, that the medical assessment should proceed first as there is no need for a Merit Reviewer to determine the cost of something that may not be reasonable and necessary or that might be unrelated to the accident-caused injuries. Similarly, if there is a dispute about treatment and a dispute about whether the claimant is wholly or mostly at fault, the fault dispute may need to be heard first as it would be a waste of the Commission's resources for a Medical Assessor to determine that a claimant's treatment is reasonable and necessary and related to the injuries if the claimant is found to be wholly or mostly at fault and therefore the insurer has no liability to pay for any treatment in any event.
2. In a dispute such as the one before me where there is a dispute about whether the claimant's transport services to and from school are a form of treatment and care, to me the logical and cost-effective order of dispute resolution would be:

(a) the Member determines whether the treatment in dispute is a form of treatment and care within the definition - if it is not - that is the end of the matter, and no further dispute resolution is required;

(b) if the disputed treatment is found to come within the statutory definition and there is a dispute about whether it is reasonable and necessary and related to the injuries caused by the accident, then the Member refers that matter for medical assessment pursuant to s 7.20(1)(b), and

(c) if the Medical Assessor allows the treatment and there remains a dispute about the cost of the allowed treatment, then that dispute will proceed either by way of another application by the claimant or, if the Member holds a dual appointment, the member can "change hats" and determine that dispute in their role as a Merit Reviewer.

1. This is not a dispute about whether Angelina can travel to school on her own or whether she should be travelling to school on her own. She is seven years of age and the insurer's rehabilitation adviser (Ms Trotter) acknowledges that at the time she assessed the claimant, Angelina still needed to travel with her mother regardless of whether that was in a bus or train or by a private ride share (Uber). The claimant's elder siblings apparently were accompanied to school on public transport at the same age.
2. The dispute I am determining is whether the transport assistance she is provided or to be provided with (being transport assistance to and from school), is a form of treatment within the meaning of s 1.6.

Is attendance at school a type of treatment and care?

1. The claimant submits that the definition of treatment and care includes "education" and that therefore school is a form of treatment. The claimant also submits that school is part of the claimant's rehabilitation as her education enables the claimant to obtain maximum independent living, full physical, social and vocational ability and full inclusion and participation in life.
2. While education is recognised as a form of treatment, it is included in the phrase "education and vocational training." The principles of statutory interpretation suggest the words "and vocational training" cannot be ignored when considering the meaning of the word "education". The phrase "education and vocational training" is, in the context of a scheme for compensation and benefits following a motor accident, a phrase covering additional or extra education and training required as a result of that injury. In Angelina's case, she attends school not because of her injuries but because she is required by law, to attend school and obtain an education. The word "education" in the phrases "education and vocational training" in my view is about some education other than or on top of the claimant's usual education. For example, if the claimant had a head injury and required additional tutoring at a different and specialised school as a result of the head injury, that education would likely come within the meaning of the phrase "education and vocational training."
3. In the circumstances of Miss Phothisenh's case, her compulsory education at a local primary school is not provided as part of her recovery and is not a form of rehabilitation for the injuries sustained in the accident. She goes to school, not because she needs to as part of her recovery or rehabilitation plan, but because she has to, in order to learn what the state of NSW requires her to learn between the age of 5 and 17.
4. As the claimant's attendance at school is not a form of treatment, any dispute about the transport assistance for her travel to and from school is not a dispute under s 3.24(1)(b) about the "reasonable and necessary travel .... expenses incurred ... in order to obtain treatment and care for which statutory benefits are payable."

Is the travel to school a form of rehabilitation and therefore treatment and care?

1. The submissions from both the claimant and the insurer assert that transport to and from school is a form of rehabilitation within the statutory definition. Section 1.4 defines "rehabilitation" as follows

"... the process of enabling or attempting to enable the person to attain and maintain -

(a) the maximum level of independent living, and

(b) full physical, mental, social and vocational ability, and

(c) full inclusion and participation in all aspects of life."

1. In the case of Fowler, I said this about the definition of "rehabilitation."

"[194] The insurer says if the term 'rehabilitation' is given a wide meaning then everything in the list in the definition of treatment and care could be a form of rehabilitation and would not need to be mentioned separately.

[195] I note the definition of rehabilitation, 'means the process of ...'. By referring to a 'process', the definition is in my view already very wide and does capture may of the other things listed in the definition of treatment and care. Aids and appliances, prostheses, modifications to home, transport, workplace and educational facilities are items or things which are certainly part of a process of rehabilitation.

[196] But the ordinary meaning of the term 'process' implies a beginning and an end. An injured person's rehabilitation does not go on forever. At some stage, Mr Fowler will reach a point where his injuries have stabilised and he cannot gain any further use of his legs or strength in his upper body and mentally he has come to terms with his disability and pain levels. There will come a time when he has reached the maximum level of independent living he can achieve, he is working full-time hours or the most hours he can work, and he has returned to all aspects of his previous life albeit in a wheelchair. As has been foreshadowed in the medical evidence, Mr Fowler will have continuing needs to maintain the maximum level of living and ability, but they may no longer be provided as part of the process of rehabilitation."

1. In order for this seven-year-old claimant to attain and maintain full inclusion in and participation at home and school (her educational life), her rehabilitation plan would have included, if necessary the modification of her school so she could physically get onto the school grounds and into her classroom. Getting her to school and home again would also be a part of this rehabilitation and her inclusion in her educational life. If she could not get to school or could not get into school, the insurer may have had to consider home schooling as part of Angelina's rehabilitation plan. I agree with the parties that how Angelina gets to school is a part of her rehabilitation and therefore a form of treatment within the definition and it would appear the reason for AAMI paying for the transport assistance up to 9 September 2024.
2. The insurer however argues that the process of the claimant's rehabilitation, in relation to her ability to travel to and from school by private car, ended at some stage before 9 September 2024. The insurer says that by 9 September 2024 the claimant was able to fully engage with school life without transport assistance, when she was certified fit to travel to and form school by the mode of transport she took before her accident.
3. In my view, if the transport services provided to the claimant, in the past was a form of rehabilitation (and therefore treatment), whether that form of rehabilitation and treatment is still needed is, in my view a medical assessment matter. There is a medical dispute about whether transport services provided after 9 September 2024 (as a form of rehabilitation) are reasonable and necessary and related to the injury caused by the accident.

Is travel to school by private Uber a transport modification?

1. The definition of treatment and care includes "home and transport modification". This has, in the past, referred to the cost of modifying a home or vehicle to accommodate a person's injury and would cover things such as grab rails in a bathroom or ramps facilitating easy access into the home. An adult who used to drive before the accident would be entitled to the cost of hand controls on the steering wheel if they were paralysed and could no longer use foot pedals in their car.
2. In the case of Fowler a dispute arose about whether the claimant was entitled, in his statutory benefits claim, to a completely new car as opposed to the cost of modifying the new car he needed, because his pre-accident car could not be sufficiently modified to enable the claimant to travel independently. In that decision I said:

"[186] The question remains whether the words 'transport modification' goes beyond the alterations done to a vehicle to make them fit for the claimant's purposes or whether they permit the change or alteration of the type of vehicle itself [emphasis added]. I agree with the claimant's concession that if the term used in the definition was 'vehicle modification' the answer to the question would be more obvious. When the other modifications mentioned in the definition are considered: modification to the claimant's workplace; modification to the claimant's educational facility, and modification to the claimant's home, they are all existing things that need to be modified, as in altered or changed. Modifying the claimant's workplace for example would not extend to finding the claimant a new job. Modifying the claimant's home would clearly encompass the work done to the claimant's home (including bathroom, kitchen and carport building works) but I do not think that 'home modification' could extend to modifying the home, as in purchasing a new one, because the pre-accident one cannot be modified.

[187] In my view transport modification means modification (as in change or alteration) to the transport the claimant was using at the time of his accident to accommodate his injuries ..."

1. The issue addressed in Mr Fowler's case was the modification of the type of vehicle he could independently drive (a Pajero with no wheelchair stowage to a Kia with a wheelchair loader) not modification of his existing vehicle (the Pajero). In Ms Phothisenh's case, she is seeking to modify the mode of transport she takes to school from public (bus travel) to private (Uber or taxi).
2. If the phrase "home and vehicle modification" was used in the definition of treatment and care (as opposed to home and transport modification), that phrase would not assist Miss Phothisenh who is not seeking to modify a particular vehicle she takes to school, but the way in which she gets to school. The phrase I have to consider is "home and transport modification". The phrase includes for example the words "home" not house. House has a limited meaning and is a specific type of home whereas home is a wider concept encompassing all forms of housing including apartments and caravans. Parliament has chosen the specific words "home and transport modification" for the purposes of identifying the type of treatment, care, support or service that is claimable as a no-fault statutory benefit. In my view, the word "transport" is wider that the word "vehicle" and encompasses vehicles as well as other forms of conveyance.
3. Following the reasoning from Fowler above, because of her injuries, the claimant has had to modify, as in alter or change, the way she got to school and the type or mode of transport she took from public to private. Because of her age she has needed transport assistance to get to school and, the provision of a different form of transport assistance which is, in my view, a form of treatment and care within the definition.
4. It follows therefore that if there is a dispute about whether the claimant can take public transport after 9 September 2024 or whether she needs private transport assistance, that is a medical dispute that can be the subject of a medical assessment matter to be determined at the Commission.

Is taking a child to school an attendant care service?

1. Two previous claims for the expenses of the private Uber driver were made, disputed but resolved by the insurer on internal review. Both internal reviewers determined the matter on the basis that driving the claimant to various places (including school) was a form of attendant care service and therefore a type of treatment and care within the definition.
2. Mr Mantakul, the claimant's appointed representative, was unaware that he could raise this argument at the Commission. In AAMI's submissions this argument is not mentioned and there is no suggestion from AAMI that its two internal reviewers were mistaken in their decisions. AAMI was offered the opportunity at the third preliminary conference to address this issue but did not.
3. The phrase "attendant care services" is defined in s 1.4 as "services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services."
4. In the case of BLI v Allianz Australia Insurance Limited[23], when dealing with a dispute about whether painting the exterior of a weatherboard home was an attendant care service, I said this at [72]:

"Both the claimant and the insurer have submitted that there is a difference between everyday tasks and tasks that are done every day. I agree with the claimant's submission that the word "everyday" used in the definition of attendant care is not restricted to tasks that are done every day. BLI's example of lawn mowing is a good example. Lawn mowing is an everyday activity in that it is a usual or commonplace activity, but domestic lawns do not need to be mown every day. The insurer suggested spot painting would be an everyday or mundane task but that painting the whole of the claimant's home was not a usual or commonplace activity."

1. I found at [75] in that case that "the painting work that was proposed was a major undertaking, a significant project and not something that would ordinarily be contemplated by the phrase 'everyday tasks.'"
2. Taking a child to school is not something that is done every day, but it is an everyday task, as in a usual, common place or routine task, that a parent or carer undertakes until the child is of an age when they can safely get to school themselves.
3. The definition gives four examples of what might be attendant care services but that is not an exhaustive list due to the word "includes (for example)". But if a service does come within one of the examples, then clearly it would be a form of attendant care service and therefore a type of treatment and care.
4. Taking a seven-year-old child to school is clearly not nursing, home maintenance or domestic services. Domestic services would be services of a domestic nature such as cleaning, cooking, washing and bed making.
5. Taking a young child to school is, in my view, a form of personal assistance required because of the claimant's age. Angelina cannot go to school herself and needs transport assistance to get there. The claimant's mother would have been performing that personal assistance (transporting her daughter to school) regardless of whether Angelina had been injured in the accident or not. But the changed transport services are also a form (a different form) of personal assistance. That difference (private transport Uber assistance) is therefore a form of treatment and care provided to Miss Phothisenh because of her injury.
6. Whether this different form of attendant care service (private transport Uber assistance) to and from school after 9 September 2024 is reasonable and necessary in the circumstances or related to the injuries caused by the accident is therefore a medical assessment matter that requires assessment by a Medical Assessor.

1. As I am satisfied that transport services are a form of treatment and care, there is clearly a medical dispute between the parties about:

"Whether private transport services provided to the claimant (to and from school) after 9 September 2024 are reasonable and necessary and related to the injuries caused by the accident, and

Whether private transport services to be provided to the claimant (to and from school) after the medical assessment are related to the injuries caused by the accident and if so, for how long will they be reasonable and necessary."

1. These are matters for a Medical Assessor to determine. Therefore, under s 7.20(1)(b) I refer the above medical disputes for medical assessment. I request the Commission arrange for the disputes to be dealt with by one or more Medical Assessors and direct the insurer to upload a single bundle of the relevant documents, as well as a copy of these reasons in order to facilitate the quick and cost-effective resolution of the disputes.
2. If there remains a dispute about the cost of the transport services, then that is a matter for a Merit Reviewer to determine at the conclusion of the medical assessment process.
3. I note the insurer made a request for an order for costs beyond the regulated fees pursuant to s 8.3(4) of the MAI Act. I confirmed with the claimant that this was not an order for costs made against the claimant and the claimant is not required to pay any costs. This is simply an order that would permit AAMI's lawyers to recover costs from AAMI beyond the regulated amounts provided for in the Motor Accident Injuries Regulation. The insurer was represented throughout the course of this dispute and I have been assisted by their submissions. The issue in this matter was novel and complex and required three preliminary conferences. In my view the insurer should be entitled to costs beyond the regulated fee.
4. While Gerard Malouf and Partners may have drafted the claimant's submissions, they have not appeared or otherwise assisted the Commission and therefore it is not appropriate to award any costs in favour of the claimant.

[1] Although Anita made the claim, Angelina will be referred to as the claimant in these reasons.

[2] Gerard Malouf and Partners have provided assistance to the claimant's appointed representative in the current proceedings but have not appeared in them.

[3] Page 11 of the insurer's initial bundle.

[5] A third internal review decision was referred to. Dated 20 August 2024 this decision supported (and overturned the original decision) the referral to Spinal Surgeon Dr Kulkari to investigate the claimant's back pain.

[6] A copy of this internal review decision is found at page 38 of the insurer's initial bundle.

[7] [2025] NSWPIC 82 at [196].

[9] Page 16 of the insurer's additional bundle. Kairros Pty Limited appears to be a rehabilitation provider and co-ordinator retained by the insurer. It will be referred to simply as Kairros in this decision.

[11] The email is at page 29 of the insurer's additional bundle.

[12] Page 31 of the insurer's additional bundle.

[14] Page 33 of the insurer's additional bundle.

[16] Page 50 of the insurer's additional bundle.

[17] The operation report and discharge summary is at page 34 of the insurer's initial bundle.

[18] Page 32 of the insurer's initial bundle.

[19] Page 37 of the insurer's additional bundle.

[20] Page 38 of the insurer's additional bundle of documents.

[21] Under s 7.15 for merit review matters or s 7.26 for medical assessment matters.

[22] Section 42,

[23] [2024] NSWPIC 436.