If injured in a road accident, the TAC has an obligation to pay for reasonable and accident-related medical and other expenses, including treatment for physical therapy and for psychological injuries. Here we look at what happens when the TAC reduces or ceases funding for treatment expenses, how these decisions can be challenged and how Courts and Tribunals have defined “reasonable medical treatment” in TAC claims.
The TAC scheme is designed to ensure that people injured in motor vehicle accidents are entitled to a range of benefits, no matter whose fault the accident was. Some of these benefits are ongoing even after the injured person obtains lump sum compensation from the TAC.
Under section 60 of the Transport Accident, a person is entitled to have TAC pay for “medical and like benefits” for as long as the costs are “reasonable” and “related” to the accident.
The range of benefits is broad and along with your regular treating doctor expenses, can include the cost of:
- ambulance services;
- surgical and dental costs;
- home and care modifications;
- transportation costs;
- nursing and hospital care;
- childcare; and
- attendant care.
Some of these items will be used rarely by injured TAC claimants, while others such as physical therapy and counselling costs can be ongoing for months or years.
Despite this, the law does not require the TAC to pay for treatment indefinitely. Here we look at what happens when the TAC ceases or reduces physical or psychological treatment on the basis that it is no longer reasonable.
1. What to do if the TAC determines that the physical therapy or psychological treatment you require is no longer “reasonable”?
The first thing to do if the TAC states that it will be ceasing or reducing your medical benefits is to ask for the decision in writing.
From there, it is important to understand that you only have 12 months from the date of receiving any TAC decision to formerly challenge the decision. If you do not dispute the decision within that period, your right to receive the contested medical benefit is lost.
We can assist you to appeal a decision made by the TAC to cease or reduce any of your medical treatments. We generally offer to assist without charging our clients legal fees – meaning that you are not out of pocket for successfully challenging a decision made by the TAC about your medical benefits. For free advice, call 1300 383 825.
2. The case of Russell
The case of Russell vs Transport Accident Commission remains the critical case regarding what constitutes “reasonable” treatment under the TAC scheme. In that case the TAC ceased paying for osteopathic and psychological treatment on the basis that Mr Russell was no longer getting improvement from the treatment. The TAC determined the treatment requirement was no longer reasonable.
The TAC is not legally required to pay for physical or psychological therapy forever.
Justice Harper found that for treatment to be necessary there must be a measurable, objective benefit. He noted that treatment must produce more than a temporary palliative effect (i.e. temporary relief from pain) and stated that the prevention of deterioration of a person’s condition may be reasonable in certain circumstances, the physical and/or psychological treatment can’t be just producing a “holding pattern” stating that:
“In Mr Russell’s case it is, I think, clear on the evidence that the benefits obtained by him from both the osteopathic and the psychological treatment were not measurable. The evidence was that there was no measurable clinical evidence of improved mobility as a result of the osteopathic treatment. The evidence also was that there was no measurable benefit from the psychological treatment.
Indeed, whereas in 1999 and 2000 the psychologists reported Mr Russell as expressing the view that there was light at the end of the tunnel, treatment since then has at best prevented deterioration in Mr Russell’s condition rather than improving it. It may well be in appropriate circumstances that the prevention of deterioration is entirely appropriate. Here, however, the treatment seems to be directed to no more than a temporary holding pattern.”
3. Key cases following Russell
Since the case of Russell, there have been a number of other Court and Tribunal decisions examining whether or not further treatment should be considered “reasonable” by the TAC.
The TAC was found to be required to fund further physiotherapy for an ankle injury where pain relief from treatment was temporary, and where months of past treatment had shown no measurable gain.
The TAC was not liable to pay for a protein supplement for a catastrophically injured man where there was insufficient evidence of the benefit of the supplement.
A TAC decision to cease psychiatric treatment was overturned and replaced with a decision to allow a further 15 sessions per year for 2 years, with a review of the need for treatment to follow.
An injured person was allowed a further 18 sessions of chiropractic treatment. Despite having received “an enormous amount” of treatment, the Tribunal noted improvement in the last 12 months in his condition (and deterioration in the absence of treatment). The Tribunal stated:
“Nevertheless, my primary reason for arriving at the conclusion which I have is that I accept the evidence of Theodoulis that the treatment is of a real benefit to him, assisting in the alleviation of pain, increasing his mobility, and enabling him to continue, without interruption, in the workforce.”
4. When should the TAC’s decisions be challenged?
It is important to understand that a decision from the TAC to cease (or reduce) treatment does not need to be the end of the matter.
The TAC has strong systems to allow disputes and appeals of its decisions, which can often result in a decision being revoked or changed.
Where the TAC is ceasing payment for treatment that you and your treater believe is benefitting you, or where you may need further rehabilitation following surgery in the future, you should consider disputing the TAC’s decision.
To challenge a TAC decision to cease funding for physical or psychological treatment, you need strong support from your treating doctors and from your legal team to prove:
- that there is a specific treatment plan with specific goals, geared towards objective measurable benefits/outcomes;
- that further treatment is likely to:
- do more than relieve pain or temporarily abate symptoms;
- produce an objective improvement;
- assist you to improve functional capacity (for instance to allow you to drive or get back to work); and
- at the very least, prevent functional deterioration or clinical deterioration.
If you’re unhappy with a decision that the TAC has made about your medical benefits (or any other issues to do with your TAC claim), you should speak to a lawyer and get advice to see whether the decision can be challenged.
At Polaris, we provide free initial advice and we can act for you, at no cost to you, if you need to challenge a TAC decision to stop or reduce your benefits.