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ADA v Allianz Insurance Ltd [2019] NSWDRS MR 079

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsRecover costs - physiotherapy report - whether the costs of the Physiotherapy Report are ‘reasonable and necessary’ - no entitlement to recover cost of report
Legislation citedMotor Accident Injuries Act 2017: Section 8.10; Schedule 2 (1) (aa)
Cases citedN/A
Text citedN/A
PartiesADA – Claimant
Allianz Australia Insurance 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 ADA
Insurer Allianz Australia Insurance Limited
Claim Number 37C000483
The Reviewable Decision
Decision-maker Sharmi Chatterjee
Date of decision November 2018
Nature of decision Recovery of costs and expenses
The Merit Review
Our Reference 10063402
Merit Reviewer Tajan Baba
Date of this Certificate March 2019

Merit Reviewier's Determination

This determination relates to a merit review matter about the recovery of costs and expenses which is a reviewable decision under Schedule 2(1)(aa) of the Motor Accident Injuries Act 2017 (“the Act”).

My determination of the Merit Review is as follows:

  • The reviewable decision is affirmed
  • o ADA is not entitled to recover the costs of the Physiotherapy Progress Report dated 10 November 2018 from the Insurer, pursuant to section 8.10 of the Act.

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


    Tajan Baba
    Merit Reviewer, Dispute Resolution Service

    Reasons for determination

    Background

    1. ADA was injured in a motor vehicle accident on 28 July 2018.

    2. The Insurer accepted ADA’s claim under the Motor Accidents Injuries Act 2017 (“the Act”) and has reimbursed the costs of ADA’s medical treatment related to the injury.

    3. There is a dispute between ADA and the Insurer in relation to the costs of a Physiotherapy Progress Report prepared by ADA’s treating physiotherapists, Complete Allied Health Care Pty Ltd, dated 10 November 2018 (“the Physiotherapy Report”). ADA seeks recovery of the costs of the report in the sum of $207.24 from the Insurer.

    4. On 8 October 2018, the Insurer advised ADA that it did not approve the costs of the Physiotherapy Report. On 26 November 2018, the Insurer issued a letter and email correspondence again advising the costs of the Physiotherapy Report were not approved.

    5. ADA sought an internal review of the Insurer’s decision in respect to the “denial of physiotherapist’s report writing dated 26 November 2018”. On internal review dated 10 December 2018, the Insurer affirmed the original decision.

    6. ADA lodged an application for merit review with the Dispute Resolution Service (“DRS”) on 20 December 2018. The application was accepted by the DRS.

    7. The Insurer’s decision to decline recovery of the costs of the Physiotherapy Report was made pursuant to section 8.10 of the Act. This is a reviewable decision under Schedule 2(1)(aa) of the Act.

    Documents and information

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

    9. 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 from 30 April 2018 (“the Guidelines”)

    c. Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”).

    Submissions

    10. ADA’s legal representatives, Stephen Young Lawyers, make the following submissions in the application for merit review:

    a.  Complete Allied Health Care Pty Ltd treating physiotherapist of the claimant, ADA issued a medical report commenting on the status of injury of the claimant and requested for payment. The payment was rejected on 26 November 2018.

    b.  On 27 November 2018, Stephen Young Lawyers, lodged an internal review against the decision to decline.

    c.  The request was made under the provisions of Clauses 3.24.1, 4.97.3, 6.6.6 and 8.10 of the Motor Accidents Guidelines 2017 No. 10.

    d.  On 10 December 2018, the Insurer issued a decision and advised that the internal review was not successful, they advised if we disagree with the decision, we can apply for DRS with SIRA.
    e.It is submitted that this application is made in accordance to Clause 1aa of Schedule of the Act.

    11.The Insurer makes the following submissions in its reply to ADA’s application:

    a. In addition to the following submissions, the Insurer relies upon the reasons set out in the internal review.

    b. The Insurer disputes that the Physiotherapy Report dated 10 November 2018 is compensable pursuant to the Act.

    c. The physiotherapist report is not compensable pursuant to section 3.24 of the Act:

    i) The Insurer notes at the outset that the physiotherapy provider was advised that a report was not required and not approved. The Insurer submits that this is a reasonable position to take given the report provided is entirely a restatement of the Allied Health Recovery Request. Essentially the physiotherapist has attempted to charge twice for the same service and is now being supported in that attempt by ADA’s legal representatives.
    ii) The Insurer further submits that the position taken by the Insurer is in accordance with SIRA guidance on this issue whereby it is noted that a report is only to be provided by an Allied Health Practitioner when requested by an insurer. The Insurer refers to the FAQs “Providing allied health services in the NSW CTP scheme – FAQs” where it is stated:
    What is my role in the CTP scheme?
    As a single allied health practitioner (eg physiotherapist, psychologist, chiropractor), your role includes:
    *Communicating and collaborating with key parties (for example, general practitioner, other allied health practitioners, case managers, rehabilitation providers and insurers) to achieve common goals.  

    *Providing further information to insurers upon request.
    iii) As such, the Insurer submits that the report is not a reasonable and necessary medical expense compensable under section 3.24 of the Act.

    d. The physiotherapist report is not compensable pursuant to section 8.10 of the Act:
    i) The Insurer notes that section 8.10 of the Act requires an insurer to reimburse a claimant for reasonable and necessary “other costs and expenses” as allowed by the Regulations. “Other costs and expenses” is defined to “include the cost of medical and other tests and reports”.
    ii) The Insurer submits that a physiotherapy report, which, as noted, is repetitive of the Allied Health Recovery Request, is not a reasonable and necessary medical report allowable under this provision. Rather the types of items referred to in the Regulations would include medico-legal reports provided by the claimant’s medical practitioners or other SIRA – authorised medical specialists.
    iii) However, even if a physiotherapist report was allowable under this provision, the Insurer submits that this particular report is not reasonable and necessary given it is a restatement of the Allied Health Recovery Request and is not an efficacious medico-legal report in respect of injury aetiology, treatment or diagnosis. It adds nothing further to the existing information on this claim contained in the multiple Allied Health Recovery Requests, the Certificates of Capacity and the diagnostic testing all already paid for by the insurer.

    Recovery of costs and expenses

    12. Section 8.10 of the Act provides:

    8.10 Recovery of costs and expenses in relation to claims for statutory benefits  
    (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).  …

    13. ADA is a recipient of treatment and care benefits under Part 3 of the Act. He is therefore a claimant for statutory benefits and is entitled, pursuant to section 8.10(1) of the Act, to seek recovery from the Insurer of “reasonable and necessary legal costs, and other costs and expenses, incurred … in connection with the claim”. This section further provides that “Other costs and expenses include the cost of medical and other tests and reports”. This would encompass the cost of the Physiotherapy Report subject to this dispute.

    14. DRS has jurisdiction to determine this dispute under Schedule 2(1)(aa) of the Act. This provision provides that the DRS has jurisdiction to determine:

    (aa) whether for the purposes of section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expense incurred by the claimant are reasonable and necessary.

    15. Section 8.10 and Schedule 2(1)(aa) of the Act both require that I determine whether the cost incurred for the Physiotherapy Report subject to this dispute is ‘reasonable and necessary’ such that ADA is entitled to recover this cost from the Insurer.

    16. In respect to subsection (2) of section 8.10 of the Act, the Regulation does not make provision for or with respect to fixing the maximum costs for the type of report subject to this dispute, including whether no costs and expenses are recoverable from an insurer in respect to reports of that type.

    17. The Insurer submits that the Physiotherapy Report is not a reasonable and necessary medical report allowable under section 8.10 as the types of items referred to in the Regulation would include medico-legal reports provided by the claimant’s medical practitioners or other SIRA – authorised medical specialists. It is not clear which provision of the Regulation the Insurer makes this submission on the basis of. On review of the Regulation, I do not consider it stipulates the types of reports under section 8.10 of the Act that recovery of costs is “allowable”.

    Issue in dispute

    18. The issue in dispute therefore is whether the cost of the Physiotherapy Report is ‘reasonable and necessary’.

    Evidence

    19. Complete Allied Health Care (“CAHC”) is ADA’s treating physiotherapist provider.

    20. On 5 September 2018 CAHC completed an Allied Health Recovery Request form providing an assessment of ADA’s current symptoms and capacity and a recovery plan in relation to physiotherapy treatment. The form sought approval for an ‘initial AHRR submission’ and ‘complex treatment’.

    21. CAHC subsequently issued a Physiotherapy Initial Report dated 15 September 2018 (“Initial Report”).

    22. CAHC completed a further Allied Health Recovery Request dated 6 October 2018 (“the Request Form”) and submitted it to the Insurer for approval of the costs of 8 physiotherapy sessions ($961.60), case communication ($207.24), report writing ($207.24) and case conferencing ($207.24).

    23. The Insurer responded in an email dated 8 October 2018, attaching the Request Form completed, indicating the request was ‘partially approved’ and providing the following comment in relation to what had been declined:  
    Case conferencing and report writing is not supported. Only 8 sessions of PT sessions approved.

    24. The Insurer also issued a letter to CAHC on the same day, 8 October 2018, stating:

    This letter is to inform you we have approved:
    -Further 8 sessions of physiotherapy @ 120.20 each = total $961.60
    Please note that the below service is not supported:
    -Case Communication PTA 012 - $207.24
    -Report Writing PTA $207.24

    25. On 10 November 2018, CAHC issued the Physiotherapy Report. This is the report ADA seeks to recover the costs of and which the Insurer has declined to make payment for.

    26. On 26 November 2018, the Insurer sent a further letter to CAHC of that date and in much the same terms as the letter dated 8 October 2016 (paragraph 24). The Insurer also sent an email to CAHC stating:
    Please refer to the attached AHRR-3 approval. please note we have supported for 8 sessions of physiotherapy ONLY. Please note we do not support report writing or case conferencing [sic].

    Reasons

    27. On the evidence before me, it appears that the there is a system in place between the Insurer and allied health practitioners in respect to the provision of treatment and care for claimants and the approval of the costs of such treatment. The information indicates that the allied health practitioner completes an Allied Health Recovery Request form outlining details in relation to the claimant’s diagnosis, symptoms, capacity…etc as well as what treatment is recommended and the cost of the treatment and costs of any associated correspondence, reports, case conference recommended.

    28. In this matter, CAHC completed an Allied Health Recovery Request form dated 5 September 2018. It appears that the Insurer approved the costs of the physiotherapy treatment requested and the Initial Report dated 15 September 2018.

    29. CAHC then submitted a further form, referred to as the Request Form above, for further physiotherapy treatment as well as other associated costs including report writing at the cost of $207.24. The Insurer completed its relevant section of the Request Form on 8 October 2018, clearly indicating that the request was only ‘partially approved’ and that the costs of report writing and case conferencing were not approved. In a letter of the same date to CAHC, the Insurer again advised that the costs of case communication and report writing were not supported.

    30. CAHC then proceeded to prepare and issue the Physiotherapy Report. The report is just over 1 page. The Insurer declined to make payment of the costs of the report on 26 November 2018.

    31. ADA submits that the report comments on the status of his injury.

    32. The Insurer submits that the Physiotherapy Report is a reinstatement of the Request Form and does not add anything further to the existing information.

    33. I accept ADA’s submission that the Physiotherapy Report comments on the status of his injury however I am not persuaded that this is sufficient to support that the report was ‘reasonable and necessary’.

    34. In assessing whether the costs of the Physiotherapy Report are ‘reasonable and necessary’, I do not consider that it was reasonable for CAHC to prepare the report given that the Insurer clearly advised through the correct procedure and in different forms of communication that the report was not required and it would not reimburse the costs of the report.

    35. Further, in respect to whether the report was necessary, I have perused the Physiotherapy Report and it does, as submitted by the Insurer, contain a lot of information that is repetitive of the information contained in CAHC’s Request Form and the Initial Report.

    36. I have also perused the Medical Assessment certificate of Dr Alan Home dated 4 February 2019 in respect to a separate dispute between the Insurer and ADA regarding minor injury and note that the Physiotherapy Report does not add any information or have any bearing on Dr Home’s assessment and the outcome of that certificate. In referring to the information he has considered, Dr Home states:

    I reviewed subsequent Physiotherapy Progress Reports dated 10 November 2018 and 17 November 2018 which document similar findings to those set out in the initial physiotherapy reports.

    37. On the information before me, the cost incurred for the Physiotherapy Report was neither reasonable or necessary.

    38.I find that the cost of the Physiotherapy Report incurred by ADA was not ‘reasonable and necessary’ such that he is entitled to recover the cost of the report from the Insurer pursuant to section 8.10 of the Act.

    Determination

    My determination of the Merit Review is as follows:

    • The reviewable decision is affirmed o ADA is not entitled to recover the costs of the Physiotherapy Progress Report dated 10 November 2018 from the Insurer, pursuant to section 8.10 of the Act.

    Tajan Baba
    Merit Reviewer, Dispute Resolution Service