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ACY v GIO Insurance Ltd [2019] NSWDRS MR 077

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsSuspension of weekly payments – reinstatement backdated to date of suspension-Medicare Authority - legal costs –exceptional circumstances – statutory basis – sufficient reasons
Legislation citedMotor Accident Injuries Act 2017: Sections 3.14, 8.3, 8.10(4)(b), Schedule 1
Motor Accident Injuries Regulation 2017
Cases citedN/A
Text citedN/A
PartiesACY – Claimant
GIO General Limited - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification 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 ACY
Insurer GIO
Claim Number 75C000653
The Reviewable Decision
Reviewable decision-maker GIO
Date of Reviewable decision 21 December 2018
Nature of Reviewable decision Suspension of weekly payments
The Merit Review
Our Reference 10074060
Merit Reviewer Katherine Ruschen
Date of Merit Review Certificate 11 February 2019

Merit Reviewer’s Determination

This determination relates to a merit review matter, which is a reviewable decision under Schedule 2(1)(d) of the Motor Accident Injuries Act 2017, about whether the Insurer is entitled to suspend payment of statutory benefits under section 3.14(2) of the Act or on some alternative basis, because the Claimant has not provided his authority for the Insurer to obtain his Medicare records.

My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the following decision is made in substitution for the reviewable decision: 
    o  The Insurer is to reinstate weekly payments of statutory benefits pursuant to its decision to accept liability for same on 4 September 2018, with such reinstatement to be backdated to the date of suspension of payments on 17 January 2019.
  • Effective Date: This determination takes effect on 11 February 2019.
  • Legal Costs: The Claimant is entitled to recover reasonable and necessary legal costs from the Insurer pursuant to section 8.10(4)(b) of the Act to be assessed in accordance with the Motor Accident Injuries Regulation 2017.

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

Katherine Ruschen
Merit Reviewer, Dispute Resolution Service

Reasons for determination

Background

1. There is a dispute between the Claimant and the Insurer regarding the suspension of weekly payments of statutory benefits pursuant to section 3.14(2) of the Motor Accidents Injuries Act 2017 (“the Act”) or otherwise, on the basis the Claimant has not provided his Medicare Authority.

2. The Claimant was injured in a motor vehicle accident on 23 May 2018 and on 26 June 2018 the Insurer accepted liability for statutory benefits during the first 26 weeks after the accident.

3. On 24 July 2018 the insurer asked the Claimant to provide his Medicare Authority.

4. On 4 September 2018 the Insurer determined the Claimant’s injuries were non-minor as per Section 1.6 of the Act and also admitted liability for statutory benefits following the first 26 weeks after the accident, in the absence of the Claimant’s Medicare Authority.

5. The Insurer subsequently repeated the request for a Medicare Authority.

6. On 21 December 2018 the Insurer wrote to the Claimant stating it was not satisfied the Claimant’s current incapacity was causally related to the subject motor vehicle accident and advised that unless the Claimant provided his Medicare Authority, statutory payments would cease on 17 January 2019. That decision is in dispute.

7. The matter has not been the subject of an internal review, as this was declined by the Insurer.

Documents and information

8. I have considered the documents provided in the application and the reply and the further information and submissions provided by the parties after a teleconference on 21 January 2019.

Submissions

9. The Insurer submits it is not required to continue weekly payments for statutory benefits until such time that it is established that the Claimant’s current incapacity for work is causally related to the subject accident. The Insurer submits that the request for the Claimant to execute a Medicare Authority is a reasonable request in circumstances where it says medical causation has not been established. It is unclear whether the Insurer submits in the alternative that the Claimant has an obligation to execute a Medicare Authority under section 3.14(1) of the Act.

10. The Claimant submits that medical causation has already been determined by the Insurer when it determined the Claimant’s injuries were non-minor and accepted liability for statutory benefits beyond 26 weeks on 4 September 2018. The Claimant submits the Insurer’s decision to suspend payments on 21 December 2018 is not based on any additional or new medical evidence and that there is no medical opinion disputing causation. The Claimant further submits that section 3.14(1) does not encompass Medicare, as Medicare is not a treatment or service provider. Lastly, the Claimant says the Insurer’s decision of 21 December 2018 failed to identify any statutory basis for the decision, including that it failed to state it relied on section 3.14.

Legislation

11. In conducting my Review I have considered the following legislation and guidelines:

a. Motor Accident Injuries Act 2017 (NSW) (“the Act”)
b. Motor Accident Guidelines effective 13 July 2018 (“the Guidelines”)
c. Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”)

12. The Claimant suffered injuries in a motor vehicle accident on 23 May 2018. This included injury to his right index and middle fingers, but that injury does not appear to be relevant to the Claimant’s current incapacity for work. The injury in issue is injury to the lower back and sciatica in the left leg.

13. The Claimant disclosed a prior right-hand injury, but did not disclose any relevant back or left leg injury in his claim form.

14. In regard to the lower back injury and left leg sciatica, being the injury the subject of this dispute, the Claimant says several hours after the accident he woke up with shooting pain from his lower back down to his left leg and a dull, nagging pain along his lower back.

15. The Claimant attended Dr B Abdual Rahman, General Practitioner, the day after the accident, on 24 May 2018 and has continued to be treated by Dr Rahman. Dr Rahman considered the Claimant’s injury to be consistent with the subject motor vehicle accident and has continued to certify the Claimant unfit for his usual occupation. Dr Rahman has been consistent in his diagnosis of L5/S1 disc protrusion and sciatica.

16. Dr Rahman referred the Claimant to Mr Mikulic for chiropractic and exercise physiology treatment. It appears Mr Mikulic agrees with Dr Rahman’s diagnosis and further agrees the injury is causally related to the subject accident.

17. A Lumbosacral Spine CT on 24 May 2018 indicated the Claimant’s pain could be the result of compression of the left L5 nerve root at the exit foraminal due to disc injury at L5/S1.

18. On 5 July 2018 an MRI Lumber Spine showed mature bilateral pars interarticulares defects; resultant Grade 1 (8mm) anterolisthesis of L5 on S1; resultant generalised disc bulge and some disc uncovering contracting and distorting the exiting left L5 nerve root in the neural exit foramen.

19. The Claimant was referred to Dr Reddy, neurosurgeon, for opinion on the nerve root irritation indicated in the CT and MRI scans. It appears Dr Reddy is also of the view the Claimant’s injury is consistent with the subject accident.

20. Whilst the Insurer appears to make complaint that it has not received consultative reports from Dr Rahman and/or Dr Reddy the Insurer is in possession of two reports of Dr Reddy dated 6 August 2018 and 4 September 2018. The Insurer is also in receipt of clinical records from Miranda Medical Centre (Dr Rahman) and from Engadine Healthcare. The insurer says it is not in possession of any pre-motor vehicle accident clinical notes, but this statement would appear to be incorrect, as the Engadine Healthcare records include records that pre-date the subject accident.

21. There does not appear to be any evidence in the Engadine Healthcare records of a prior relevant back injury or any history of sciatica. Whilst the Claimant consulted this practice in June 2015 for “right leg strain from running, lumber strain” an ultrasound on 8 June 2015 appears to confirm a muscle injury and there is no evidence to suggest disc injury or sciatica, or any persisting back problems thereafter.

22. The Insurer says there was “reported history of sciatica, following the subject motor vehicle accident”. Dr Rahman’s notes indicate the Claimant consulted him on 28 May 2018 for “sciatic pain” following a history of “l5s1 disc protrusion possibly impinging on nerves as per ct…”. I do not read anything in Dr Rahman’s notes or the balance of the available medical evidence which could infer the Claimant reported having a history prior to the subject accident of sciatica. I do not accept there is any current evidence of a relevant pre-accident injury.

23. The Insurer is of the opinion the extent of the Claimant’s condition “is disproportional to the minimal damage the Claimant’s vehicle incurred and the severity of the overall nature of the accident”. I do not accept that this opinion has any proper basis. Nor do I consider I am able to express any view on the severity of the accident and nature of the vehicle damage in comparison to the Claimant’s injuries based on photographs that are said to show minimal vehicle damage and the Claimant’s description of the accident. Neither the Insurer or I are qualified to express any such opinion. In my view, this is a matter for expert evidence.

24. The Insurer submits “it is unlikely the Claimant incurred such multilevel Lumber Spine issues, as demonstrated in the radiology findings” as a result of the subject accident. I am also unable to accept this proposition absent any expert evidence to support it. This is also a matter for expert medical opinion, which has not been offered by the Insurer in support of its position.

25. The Insurer also submits that because the bilateral pars defect was concluded to be “mature” in the MRI of the Lumber Spine it is therefore not attributable to the subject accident. In my view, this is again a matter for expert medical opinion.

26. I would further observe that this is not a matter where any of the Claimant’s treating doctors have expressed a view that the Claimant’s injury is disproportionate to the circumstances of the accident or indeed, that they are unable to find a clinical basis for the Claimant’s pain. The opinions of the Claimant’s treating doctors are not challenged by any expert medical evidence.

27. I agree with the Claimant’s submission that medical causation as it relates to the injury itself was established when the Insurer accepted liability for payment of statutory benefits for the first 26 week period and again, on 4 September 2018 for the following 26 weeks. It is difficult to understand how the Insurer now seeks to review or alter this earlier decision in circumstances where there is no new evidence. As noted above, the diagnosis and opinion of the Claimant’s treating doctors has been consistent to date.

28. Whilst the Insurer disputes “medical causation” in the context of the Claimant’s current capacity for work, the Insurer has not sought to establish that the Claimant’s current incapacity is the result of some injury other than the injury the subject of the Insurer’s acceptance of liability on 4 September 2018. Nor has the Insurer sought to establish that the Claimant’s condition has improved such that he has regained a capacity for work. These are distinct issues from the issue of whether the principle diagnosis of L5/S1 disc protrusion and left leg sciatica is causally related to the subject accident.

29. If the Insurer wishes to challenge the position that the Claimant’s L5/S1 disc protrusion and sciatica continues to produce an incapacity for work, it may do so through an updated capacity assessment report and/or expert medical assessment. However, whether the L5/S1 disc protrusion and sciatica has sufficiently resolved such that the Claimant now has a capacity for work is a separate issue to whether that injury was caused by the subject accident in the first place. The latter has already been determined in the Insurer’s 4 September 2018 decision to accept liability. The former might be challenged by an updated capacity assessment report and/or expert medical evidence. It would not, however, be assisted by a Medicare Authority.

30. The Insurer has not produced any updated capacity assessment report or expert medial opinion to support the contention that the Claimant’s current capacity is unrelated to the L5/S1 injury. The Insurer already accepted that injury as being causally related to the subject accident when it accepted liability on 4 September 2018. Accordingly, I find there is no basis on the evidence before me for the Claimant’s statutory benefits to cease on the basis medical causation is not established. Payments should therefore be reinstated pursuant to the Insurer’s acceptance of liability dated 4 September 2018.
Medicare Authority

31. The Insurer does not appear to rely on section 3.14(1) as a basis to compel the Claimant to provide a Medicare Authority. In any event, I agree with the Claimant’s submission that this section is restricted to treatment and service providers and does not extend to Medicare.

32. Rather, the Insurer considers the request for a Medicare Authority to be reasonable in circumstances where medical causation has not been established.  However, as I have found above that medical causation is established on the current evidence, I do not consider the request for a Medicare Authority to be reasonable for this purpose. If the Insurer seeks to challenge that the Claimant’s current capacity is causally related to the subject injury it should undertake an updated capacity assessment and seek expert medical opinion.

33. That stated, the Insurer’s position appears to be that it has made many efforts to obtain further information from the Claimant’s treating doctors querying a pre-accident history of lumbar spine/sciatica issues, medical opinion about the onset of symptomology, as well as current clinical presentation pertaining directly to the motor vehicle accident. As noted above, however, there are treating doctor reports and clinical notes addressing most, if not all of these issues. There are also clinical records of Engadine Healthcare which pre-date the subject accident. In any event, a Medicare Authority would not provide further information of the type the Insurer says it has attempted to obtain from the Claimant’s treating doctors. It would simply produce a list of past Medicare benefits, which would not contain sufficient information upon which the Insurer could reasonably make any decision on “medical causation” or capacity for work.

34. Whilst there may be some cases in which a Medicare Authority might assist matters in issue and might be a reasonable request, I do not think this is one of those cases at the present point in time.

35. Of course, the Claimant has continuing obligations under section 3.14(1) of the Act to authorise his treatment and other services providers to give the Insurer information regarding the treatment or services provided or his condition or treatment relevant to the subject injury. If the Insurer’s complaint is that the Claimant’s treatment providers have not yet provided the information regarding treatment of the Claimant’s condition that has been requested then the Insurer can exercise its rights under section 3.14. However, the Insurer has not articulated the information it says is outstanding and, in any event, this is not a matter currently before me for determination. Whilst it would appear the parties agree further information is required to enable the Insurer to conduct an internal review regarding payment of further treatment expenses, including surgery, that is a separate matter to the matter at hand, which is in relation to weekly payments of statutory benefits.

36. I do not consider the Claimant is required to provide a Medicare Authority under section 3.14 of the Act. Nor do I consider there is otherwise a reasonable basis upon which the Insurer can make this request at this point in time. Even if the request were reasonable, there must be a statutory basis for the Insurer’s suspension of weekly payments and the Insurer has not identified any statutory basis for its decision to suspend payments dated 21 December 2018.

Legal costs

37. The Claimant seeks legal costs pursuant to section 8.10(4) on the basis there are exceptional circumstances.

38. The exceptional circumstances are said to include that the Insurer failed to identify a statutory basis for its decision to suspend payments; that the insurer failed to justify its request for the Medicare Authority when asked by the Claimant, prior to suspending payments; that the Insurer failed to conduct an internal review; that the Insurer erroneously relied on section 3.14 in its Reply and did not previously rely on that section; that the Insurer failed to provide the medical evidence it was obliged to provide under the Guidelines and that the Insurer’s conduct was unreasonable.

39. Section 8.3 of the Act relevantly provides that:

(1)  The regulations may make provision for or with respect to the following:
(a) Fixing maximum costs for legal services provided to a claimant or to an insurer in any motor accidents matter,
(b) Fixing maximum costs for matters that are not legal services but are related to proceedings in any motor accidents matter (for example, expenses for investigations for witnesses or for medical reports),
(c) Declaring that no costs are payable for any such legal services or other matters of a kind specified in the regulations.
(4) An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Dispute Resolution Service.

40. Section 8.10 of the Act deals with recovery of costs and expenses in relation to claims for statutory benefits and provides that:

(1) A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2) The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Dispute Resolution Service.
(4) The Dispute Resolution Service can permit payment of legal costs incurred by a claimant but only if satisfied that:
(a) the claimant is under a legal disability, or
(b) exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
(5) An insurer is not entitled to recover from a claimant for statutory benefits any legal costs, or other costs and expenses, of the insurer in relation to the claim.

41. Schedule 1, Part 1 Subsection 2 deals with regulated merit review matters. The matter before me is not a specified regulated merit review.

42. Accordingly, costs will only be payable if permitted by the DRS pursuant to section 8.10(4)(b) of the Act. The question is whether there are exceptional circumstances that justify the payment of legal costs incurred by the Clamant.

43. The Insurer made a significant decision for the Claimant on 21 December 2018, without identifying any statutory basis that would allow it to make the decision. The insurer declined an internal review. The Insurer’s position varied somewhat between its decision of 21 December 2018, its Reply and submissions made following the teleconference on 21 January 2019. Prior to the submissions received following the 21 January 2019 teleconference it was difficult to understand the Insurer’s true position and what evidence it relied on for its fundamental proposition that medical causation had not been established. The Insurer’s ultimate position is based on speculative opinion, which the Insurer is not qualified to make. The Insurer has not made any attempt to obtain expert medical opinion to support its position. Given the significant impact of the Insurer’s decision of 21 December 2018 and the Insurer’s failure to properly identify a statutory basis or otherwise articulate sufficient reasons for its decision (other than to say it required a Medicare Authority) I consider it understandable and justified that the Claimant sought legal assistance.

44. I am satisfied that exceptional circumstances exist in this matter that justify the payment of legal costs to the Claimant. Accordingly, I determine that pursuant to section 8.10(1) the Claimant is entitled to recover from the insurer her reasonable and necessary legal costs incurred by the Claimant in connection with her application to the DRS to resolve this dispute.

Determination

My determination of the Merit Review is as follows:

  • The reviewable decision is set aside and the following decision is made in substitution for the reviewable decision:
    o The Insurer is to reinstate weekly payments of statutory benefits pursuant to its decision to accept liability for same on 4 September 2018, with such reinstatement to be backdated to the date of suspension of payments on 17 January 2019.
  • Effective Date: This determination takes effect on 11 February 2019.
  • Legal Costs: The Claimant is entitled to recover reasonable and necessary legal costs from the Insurer pursuant to section 8.10(4)(b) of the Act to be assessed in accordance with the Motor Accident Injuries Regulation 2017

Katherine Ruschen
Merit Reviewer, Dispute Resolution Service