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AAN v NRMA Insurance Ltd [2018] NSWDRS MR 014

Jurisdiction: Merit reviews

Catchwords: Verification of expenses - Claimant;s legal costs - reasonable and necessary travel expenses - benefits payable - mechanism of quantum - reimbursement of travel expenses

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 3.24, 3.27, 6.27, 7.11, 7.12, 7.13, 7.28, Part 7, Div 7.5, Div 3.4, Schedule 2(1)
  • Motor Accident Guidelines 2017 4.001. 4.100, 4.101
  • Motor Accident Injuries Regulation 2017 (NSW) reg 33

Parties:

  • AAN – claimant
  • NRMA Insurance Ltd – insurer

Disclaimer: This decision has been edited to remove Unique Personal Identification information including the name of the claimant.

Merit Review Certificate

View the certificate

Issued under section 7.13(4) of the Motor Accident Injuries Act 2017

The Claim
Claimant AAN
Insurer NRMA Insurance
Claim Number NWRTP180022601
The Reviewable Decision
Reviewable decision‐maker Samuel Flood
Date of Reviewable decision 22 May 2018
Nature of Reviewable decision Verification of expenses
The Merit Review
Our Reference 10038148
Merit Reviewer Rachel Brittliff
Date of this Certificate 5 September 2018

Merit Reviewer's Determination

This determination relates to a merit review matter, which is a reviewable decision under Schedule 2(1)(k) of the Motor Accident Injuries Act 2017 (“the Act”), about verification of expenses. My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the decision is remitted to the Insurer for reconsideration in accordance with these directions:
  • o AAN’s expenses are to be verified by the Insurer in accordance with section 3.27 of the Act and guideline 4.101 of the Motor Accident Guidelines effective 13 July 2018.

  • Effective Date: This determination is effective from 22 May 2018.

  • Legal Costs: No direction is made in respect of legal costs. Should a dispute as to costs arise, it may be separately referred to the Dispute Resolution Service (“the Authority”) for review.

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

    Rachel Brittliff
    Merit Reviewer, Dispute Resolution Service

    Reasons for decision

    Background

    1. AAN has referred a matter in relation to a claim for reasonable and necessary travel expenses under section 3.24(1)(b) of the Motor Accidents Injuries Act 2017 (“the Act”).

    2. AAN submitted a claim for travel related expenses to the Insurer on 11 May 2018. The claim was for reimbursement of travel at the rate of $0.66 per km travelled to treatment related appointments.

    3. The Insurer reimbursed AAN at the rate of $0.55 per km and informed AAN’s legal representative on 22 May 2018 that the reimbursement would be made within a week from that date.

    4. AAN’s legal representative disputed the rate at which the reimbursement was made and ultimately lodged an application for internal review with the Insurer. The application was received by the Insurer on 19 June 2018.

    5. On 22 June 2018, the Insurer wrote to AAN’s legal representative by email and informed them that they declined to conduct an internal review of the decision in relation to AAN’s travel expenses as it did not consider that the matter was a merit review matter in accordance with Schedule 2 of the Act.

    6. The Authority received AAN’s application for merit review on 6 July 2018. The application has been referred to the Authority in accordance with section 7.11(2) of the Act and has been made within the prescribed time frames.

    7. On 28 August 2018 the Authority wrote to the parties and asked for further submissions in relation to the nature of the dispute and the sections of the Act under which the matter could be determined.

    8. Following this correspondence, the Insurer indicated that it had made a payment to AAN of the difference between the initial reimbursement and the amount claimed. It requested that AAN withdraw her application for merit review.

    9. AAN’s legal representative confirmed on 2 September 2018 that AAN wished for the matter to be reviewed by the Authority.

    Documents and information

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

    Submissions

    11. The following submissions are made on behalf of AAN by her legal representative:

    • She has submitted a claim for reimbursement at $0.66 per km as prescribed under the legislation. The Insurer has only reimbursed her $0.55 per km.
    • She has been reimbursed the amount of $767.84 since she made the claim.
    • She lodged an application for internal review which was not undertaken by the Insurer.


    12. In reply the Insurer has submitted:

    • The Authority does not have jurisdiction to determine the matter as it falls outside of Schedule 2 of the Act.
    • It has declined to conduct an internal review in the matter as outlined in the internal review certificate dated 22 June 2018.
    • If it is found that the Authority has jurisdiction to review the matter, it submits that regulation 33 of the Motor Accident Regulation 2017 (“the Regulation”) prescribes a travel rate which applies to:
      (a) Attending a medical assessment under Division 7.5 of the Act,
      (b) Attending a medical or other health related examination, a rehabilitation assessment, an assessment to determine functional and vocational capacity or any other assessment under section 6.27 of the Act.

    Sections 6.27 and 7.28 of the Act apply to medical assessments and examinations only. Section 6.27(5) of the Act specifically outlines that the rates are applicable to the assessment or examination as prescribed by the parent section and therefore applies solely to the circumstances outlined within the section:

    A claimant must comply with any request by the insurer:

    • to undergo a medical or other health related examination by one or more health practitioners nominated by the insurer, or
    • to undergo a rehabilitation assessment or an assessment to determine attendant care needs by a qualified person nominated by the insurer, or
    • to undergo an assessment to determine functional and vocational capacity (including pre-accident or post-accident earning capacity) by a qualified person nominated by the insurer, or
    • to undergo an assessment in accordance with the Motor Accident Guidelines, not being in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.

    (2) Any such examination or assessment is at the cost of the insurer. The claimant decline to undergo the examination or assessment unless the insurer pays the claimant a reasonable sum to meet the reasonable and necessary costs and expenses incurred by the claimant in connection with the examination or assessment.

    • As the claimed expenses related to travel to and from treatment and not an assessment or examination, the rate prescribed within section 33 of the regulations is not applicable.
    • It is therefore its submission that the matter is not reviewable by the Authority as it does not fall under Schedule 2 of the Act.
    • Alternatively regulation 33 of the Regulation for the calculation of private motor vehicle travel expenses for attendance at medical or other assessments or examinations is not applicable in this matter.

    13. In response to a request for further submissions from the merit reviewer, AAN’s legal representative made the following submissions:

    • A common-sense approach would be favoured (to that set out by the reviewer) when calculating the travel cost to the claimant. Although section 6.27(5) and 7.28(5) of the Act relate to MAS Assessments, the claimant notes that the cost of petrol remains the same, and it would be illogical to allow a lesser amount simply due to the destination of the claimant.
    • The Insurer has agreed that the travel expenses were reasonable and has been prepared to pay $0.55. There is no argument as to whether the travel is reasonable or not. There is no argument as to whether the evidence of travel expenses provided by the claimant was insufficient.
    • The dispute arises purely as to whether $0.55 or $0.66 is appropriate or reasonable. Given the Regulation stipulates $0.66 is appropriate to attend a medical assessment, consistency would suggest that the same amount would be similarly appropriate for other reasonable travel expenses.
    • The claimant respectfully notes that to allow less than $0.66, would promote inconsistency and general confusion as to calculating travel expenses. Any diversion from $0.66 would be inherently unjust and arbitrary.
    • The objects of the Act include; to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.
    • The claimant submits that the rate of $0.66 is appropriate. This amount is clearly reasonable as it is referred to in the Regulation. In the interest of consistency and the appearance of justice, the claimant submits this amount should be provided.

    14. In response to a later request from the Insurer to withdraw the application for merit review, AAN has indicated through her legal representative that she wishes for the review to go ahead and that she considers that there is a reviewable decision to be determined.

    15. In reply the Insurer submits:

    • It requests that AAN withdraw her application as it has reimbursed the amount requested for travel.
    • It confirms that statutory benefits were payable for the treatment to which the travel related.
    • It confirms that travel expenses have been reimbursed for treatment for which invoices have been paid.
    • The scale cost is not applicable in this matter as it is not a reviewable matter by the Authority as it falls outside the jurisdiction as prescribed by Schedule 2 of the Act.
    • Alternatively, there is no dispute as it has agreed to reimburse the costs of travel in accordance with AAN’s request.

    Legislation

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

    ● Motor Accident Injuries Act 2017 (NSW) (“the Act”)
    ● Motor Accident Guidelines effective 13 July 2018 (“the Guidelines”)
    ● Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”)

    Jurisdiction of the Authority

    17. In accordance with section 3.24(1)(b) of the Act, AAN is entitled to:

    “Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable”.

    18. Section 3.27 of the Act stipulates:

    (1) No statutory benefits are payable under this division (Division 3.4) for expenses unless the expenses are properly verified in accordance with the Motor Accident Guidelines.
    (2) The Motor Accident Guidelines may make provision for how expenses for treatment and care are to be verified including verification that:
    a. The expenses have been incurred, and
    b. The treatment and care has been provided, and
    c. The treatment and care relates to the injury in respect of which statutory benefits are payable.

    19. The matter referred by AAN relates to the benefits payable under Division 3.4 of the Act for expenses.

    20. Statutory benefits are not payable for expenses unless they have been properly verified in accordance with the Guidelines. The matter that has been referred to the Authority relates to the quantum of expenses reimbursed to AAN.

    21. In order to determine a matter in relation to quantum of expenses to be paid in relation to travel for treatment and care, section 3.27 of the Act requires that consideration be given to whether the expenses have been verified.

    22. Schedule 2 of the Act stipulates:

    The following matters are declared to be merit review matters for the purposes of Part 7: (k) whether expenses have been properly verified for the purposes of section 3.27 (verification expenses).

    23. I am satisfied that the matter referred by AAN is a verification expenses matter and is a merit review matter for the purpose of Part 7 of the Act.

    24. The Insurer submits that, if the matter is a merit review matter, the Authority must not proceed with a review as the money requested by AAN as reimbursement for her travel expenses has now been reimbursed in full. The Insurer maintains that as the reimbursement has been made there is not remaining dispute and that the Authority therefore lacks the jurisdiction to proceed.

    25. The Authority is given powers under sections 7.12(1) and (2) of the Act to arrange for a merit reviewer to conduct a review of a reviewable decision as follows:

    (1) A claimant may apply to the Dispute Resolution Service in accordance with the Motor Accident Guidelines for a review of a reviewable decision under this Division (a merit review).
    (2) The Dispute Resolution Service is to arrange for the merit review application to be dealt with by a merit reviewer.

    26. Section 7.13 sets out the requirements for the determination of merit review application as follows:

    (1) In determining a merit review application, the merit reviewer is to decide what the correct and preferable decision is having regard to the material then before the reviewer, including the following:
    (a) any relevant factual material,
    (b) any applicable written or unwritten law.
    (2) For that purpose, the merit reviewer may exercise all of the functions that are conferred or imposed by or under this or any other Act on the insurer.

    27. AAN, who is the claimant, has applied to the Authority for a merit review of a decision that I have found to be a reviewable decision. The Act does not require that there is a dispute between the parties but that a reviewable decision has been referred to the Authority for a merit review.

    28. While I agree with the Insurer that in most cases, deciding a matter that is no longer in dispute between the parties, is not desirable, in this case, there remains a question as to the correct and preferable method for making payment where a claim for travel expenses is made in relation to treatment of an injured person.

    29. I accept that the quantum in this matter is settled between the parties, however, the mechanism by which the quantum was determined is not clear from the correspondence of the Insurer and AAN wishes for the merit review to proceed.

    30. I am satisfied that the words of the Act grant the power for me to proceed in this matter as there is a reviewable decision before me that has been referred in accordance with the requirements of the Act.

    Verification of expenses

    31. An injured person is entitled to payment of statutory benefits in accordance with section 3.24 of the Act benefits for:

    (b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable.

    32. Section 3.24(2) states:

    (2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.

    33. The Insurer has confirmed that the treatment and care to which the claimed travel relates was reasonable and necessary and that it has paid the costs of such treatment and care in accordance with section 3.24(1) of the 1987 Act.

    34. Section 3.27 of the Act stipulates the requirements that must be met before statutory benefits for expenses are payable in accordance with Division 3.4 of the Act as follows:

    (1) No statutory benefits are payable under this Division for expenses unless the expenses are properly verified in accordance with the Motor Accident Guidelines.
    (2) The Motor Accident Guidelines may make provision for how expenses for treatment and care are to be verified including verification that:
    (a) the expenses have been incurred, and
    (b) the treatment and care has been provided, and
    (c) the treatment and care relates to the injury in respect of which statutory benefits are payable.

    35. AAN’s legal representative has submitted that a “common sense” approach should be applied to the reimbursement of her travel expenses and that, despite having a detailed mechanism set out in the Act and Guidelines for determining the amount of any expenses to be reimbursed to AAN, the Authority should prefer an approach in which a merit reviewer substitutes a personal discretion and allows the application of an amount set out in the Regulation that is clearly directed to a separate and unrelated part of the Act.

    36. As noted earlier, the Act requires that I decide what is correct and preferable in this matter, having regard to the material that is before me including any factual material and any written or unwritten law (my emphasis).

    37. The Act stipulates that in matters relating to travel and accommodation expenses the Guidelines may make provision for how expenses for treatment and care are to be verified. There is no provision for the Regulation to make any such provision. As subordinate legislation, the Regulation has power only where such power is granted under the Act. Accordingly there is no power for the Regulation to make any provision in the case of verification and payment of travel and accommodation expenses in relation to treatment and care statutory benefits.

    38. Guideline 4.101 of the Guidelines clearly sets out the requirements for the verification of expenses, where a claim for expenses is made by the claimant, for the purpose of section 3.27 of the Act as follows:

    These provisions [4.100] do not apply to reimbursement for treatment and/or expenses to the claimant. These expenses should be reimbursed to the claimant by the insurer on provision of a receipt confirming the expenses incurred, where the insurer has provided pre-approval and/or the expenses are reasonable and necessary. Insurers should request details of regular service providers to establish direct billing and reimbursement between the insurer and provider to reduce the financial burden on the claimant.

    39. It is clear that for AAN to claim expenses for travel, that a receipt is required to verify actual costs incurred in attendance upon treating practitioners. It is for the Insurer in this case to decide what type of receipt would be appropriate, however, I note that the use of the word “receipt” is more specific than the use of the word “evidence” for example and that it would appear that travel records to which an amount is applied to arrive at a rate of payment is unlikely to satisfy the criteria. Records of actual expenditure on petrol coupled with such logs are more likely to be in accordance with the intention of the Guidelines.

    40. I find that the verification of AAN’s travel expenses in relation to her treatment and care should be conducted in accordance with section 3.27 of the Act and 4.101 of the Guideline.

    41. I therefore set aside the original decision of the Insurer and remit the matter to them in accordance with my findings above.

    Legal costs

    42. The matter of legal costs may be referred separately for determination if required.

    Determination

    The reviewable decision is set aside and the decision is remitted to the Insurer for reconsideration in accordance with these directions:

    • AAN’s expenses are to be verified by the Insurer in accordance with section 3.27 of the Act and guideline 4.101 of the Motor Accident Guidelines effective 13 July 2018.
    • Effective Date: This determination is effective from 22 May 2018.

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

    Rachel Brittliff
    Merit Reviewer
    Dispute Resolution Service