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AFK v Allianz Australia Insurance Limited [2019] NSWDRS MR 162

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMerit Review
CatchwordsPhysiotherapy progress report – reasonable and necessary costs – statutory benefits – medical treatment – allied health practitioner
Legislation citedMotor Accidents Injury Act (NSW) ss 1.3(2)(a), 1.3(2)(b), 7.13(4), 8.10(1), 8.10(2), Schedule 2 clause 1 (aa)
Motor Accident Injuries Regulation 2017 reg 10(d), Schedule 1 Clause 2(1)
Motor Accident Guidelines 2017 (as amended on 15 January 2019) cl 7.18.1, 7.18.6
Cases cited

N/A

Text citedN/A
Parties AFK - 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

Reasons for Determination

Background

1.   AFK was injured in a motor vehicle accident on 22 May 2018.

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

3.   There is a dispute between AFK and the Insurer in relation to the costs of a Physiotherapy Progress Report prepared by AFK’s treating physiotherapists, Complete Allied Health Care Pty Ltd, dated 18 June 2019 (“the Physiotherapy Report”). AFK seeks recovery of the costs of the report in the sum of $211.20 from the Insurer.

4.   The Insurer declined to make payment of the costs of the Physiotherapy Report on 8 July 2019(“the reviewable decision”).

5.   AFK did not request an internal review by the Insurer of the reviewable decision and I note that clause 10(d) of the Regulations excludes disputes arising under section 8.10 of the Act from the requirement of internal review.

6.   AFK lodged an application for merit review with the Dispute Resolution Service (“DRS”) on 9 July 2019. 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.

Legislation

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”).

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

a.   The application is made in accordance with section 1(aa) of Schedule 2 of the Act.

b.   The Physiotherapy Report is to provide assistance with and enhancement towards the understanding of the case. It will not be reasonable and necessary for the costs and expenditure incurred to be made liable towards AFK as the report was relied upon to understand progress of AFK’s recovery and health. Should the report not be allowed, it may hinder the understanding of the case of the insurer, AFK and their legal representatives and treatment providers. The cost has also incurred within the liable period of the insurer therefore the cost and expenditure is reasonable and necessary.

c.   Pursuant to clause 7.276 of the Guidelines and section 1.3 of the Act, it is contended that an officer for DRS shall exercise a discretion that would best promote the objects of the Act. It is submitted that the below subclauses of clause 1.3 of the Act may be applicable:

(2)(a)   to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities,

(2)(b)  to provide early and ongoing financial support for persons injured in motor accidents,

d.   It is believed that DRS should exercise discretion to accept a request for this application, consistent with section 1.3 of the Act, as it is believed that the exercise of that discretion would best promote the objects of the Act in all the circumstances of the claim.

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

a.   The Insurer does not agree that the Complete Allied Health Care invoice dated 19 June 2019 for Physiotherapy Report writing is compensable under section 8.10 the Act.

b.   In addition to the below submissions, the Insurer relies upon the Certificate of determination – Internal Review dated 18 July 2019.

c.   The treatment provider, Complete Allied Health Care sent an allied health recovery request to the Insurer on 15 May 2019 requesting 9 sessions of physiotherapy as well as case conferencing and report writing.

d.   The Insurer completed the relevant section of the request form on 21 May 2019 advising the provider that the treatment plan was partially approved and indicated that “No approval granted for PTA012”. PTA012 is the maximum physiotherapy fee for “Case conference Report writing (only when requested by the insurer)”.

e.   The Insurer made payment to Complete Allied Health Care for the cost of the allied health recovery request completed on 15 May 2019. The Insurer then sent an email on 8 July 2019 expressly declining to make payment for the costs of the physiotherapy report dated 18 June 2019.

f.   The Insurer submits that the costs of the physiotherapy report is not ‘reasonable and necessary’ and therefore submits that the AFK is not entitled to recover the cost of it from the Insurer.

g.   Under s 8.10 of the Act and Schedule 2(1)(aa) of the Act, the merit reviewer must determine whether the costs incurred for the physiotherapy report is both ‘reasonable’ and ‘necessary’ to entitle AFK to to recover this cost from the Insurer.

h.   In relation to whether the expense of the physiotherapy report is ‘reasonable’, it is submitted that it was not reasonable for Complete Allied Health Care to prepare the report given the Insurer had clearly advised them on 21 May 2019 that payment for report writing was not approved.

i.   In relation to whether the expense of the Physiotherapy Report is ‘necessary’, it is submitted that it clearly was not. In this regard, the Insurer submits that the physiotherapy report dated 18 June 2019 has merely transposed the information from previous allied health recovery requests including request dated 15 May 2019. The report provides no additional information from the information provided in the allied health recovery request. Therefore, the request for payment for the physiotherapy report is essentially an attempt from the physiotherapist with the support of the AFK’s legal representative to charge twice for the same service.

j.   For the above reasons, the Insurer submits that the cost of the physiotherapy report dated 18 June 2019 is neither reasonable nor necessary and therefore AFK should not be entitled to recover the cost of this from the Insurer pursuant to 8.10 of the Act.

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 the claimany under this section (including any matters for which no costs and expenses are recoverable from the insurer).

13.   AFK is a recipient of treatment and care benefits under Part 3 of the Act. She 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”. The section provides that “other costs and expenses include the cost of medical and other tests and reports”. This encompasses the cost of the Physiotherapy Report subject to this dispute.

14.   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 for reports of that type.

15.   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.

Issue in dispute

16.   Section 8.10 and Schedule 2(1)(aa) of the Act both require that I decide whether the cost incurred for the Physiotherapy Report subject to this dispute is ‘reasonable and necessary’ such that AFK is entitled to recover the cost of the report from the Insurer. This is the issue in dispute I am required to determine.

Reasons

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

18.   CAHC completed an Allied Health Recovery Request on 15 May 2019 (“the Request Form”) and submitted it to the Insurer for approval of the costs of 9 physiotherapy sessions (OAS003 & PTA005), case communication (PTA012), report writing (PTA012) and case conferencing (PTA012).

19.   The Insurer completed the ‘Section 7: Insurer decision’ section of the Request Form on 21 May 2019, indicating that the request was ‘partially approved’ and noted:

Please note injuries do not meet the criteria for complex treatment. 2 areas only approved PTA004. No approval granted for PTA012

20.   CAHC proceeded to prepare the report dated 18 June 2019. It appears an invoice (invoice no. xxxxx) was then issued to the Insurer for the costs of the report, which the Insurer did not make payment of. I do not have a copy of the invoice before me.

21.   On 8 July 2019, the Insurer sent an email to CAHC stating:

Please be advised that Allianz is unable to pay the attached invoice for report writing of $211.20 as this was not approved or requested by Allianz. Please refer to note on the Allied Health Recovery request sent to you on the 21/05/2019 advising non-approval of report writing.

22.   On the information before me, there appears to be a system in place between insurers and allied health providers in respect to the provision of treatment and care and the approval of the costs of such treatment. The information indicates that the allied health provider completes an Allied Health Recovery Request form outlining details in relation to the injured person’s diagnosis, symptoms, capacity…etc. The form also outlines what treatment is recommended, and the cost of the treatment and costs of any associated correspondence, reports, case conference that are recommended. The Insurer then completes the final section of the form, section 7, indicating their decision in response to the request.

23.   In this matter, CAHC completed an Allied Health Recovery Request form. The Insurer subsequently completed section 7 of the form and clearly indicated that the request was ‘partially approved’, providing approval for the physiotherapy treatment sessions and clearly stating that approval for “PTA012” (case communication, report writing, and case conferencing) was not granted.

24.   CAHC then proceeded to prepare and issue the Physiotherapy Report despite the Insurer not providing approval for the costs of the report. The report is just over 1 page.

25.   AFK submits that the report is necessary for “enhancement towards the understanding of the case” and she should not bear the costs of the report because it was relied upon to understand progress of her recovery and health. It is submitted that if the report was not allowed, “it may hinder the understanding of the case of the insurer, claimant and their legal representatives and treatment providers”.

26.   The Insurer submits that the costs of the Physiotherapy Report was explicitly not approved and the report merely transposes the information in the Request Form and previous allied health recovery requests and does not add anything additional to the existing information on the claim.

27.   I acknowledge AFK’s submission that the Physiotherapy Report may include some information which may be useful in respect to AFK’s health and recovery however I am not persuaded that this is sufficient to support that the report was ‘reasonable and necessary’.

28.   In assessing whether the costs of the Physiotherapy Report incurred by AFK was ‘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 form and procedure that the report was not required and it would not reimburse the costs of the report.

29.   CAHC submitted a request form and the Insurer completed the relevant Insurer Decision section. It is clear from this that the approval to reimburse costs of what has been requested is at the Insurer’s discretion and claimants should not expect to have costs of services reimbursed where an insurer has clearly declined to approve costs, where reasonable of course.

30.   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 the Request Form.

31.   AFK’s legal representatives make a number of general submissions about why the report was necessary but it is not clear in what way the report would actually assist the understanding of the parties and how the report not being issued would “hinder” the understanding of the parties. It is not clear what medical information was required or needed to be clarified or the dispute or legal proceedings that the report was required for. I note that the medical dispute in relation to minor injury had been resolved/finalised earlier in the year.

32.   AFK’s legal representatives submit that allowing the costs of the report would best promote the objects of the Act and reference is made to the objects outlined at section 1.3(2)(a) and (b) of the Act, in respect to encouraging early and appropriate treatment and care and early and ongoing financial support. Again, it is not clear why the report was necessary such that financial support from the Insurer would best promote the objects of the Act. I note that the Insurer approved the costs of the physiotherapy treatment sessions.

33.   On the information before me, the costs incurred for the Physiotherapy Report were neither reasonable nor necessary.

34.   I find that the cost of the Physiotherapy Report incurred by AFK was not ‘reasonable and necessary’ such that she 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  AFK is not entitled to recover the costs of the Physiotherapy Progress Report dated 18 June 2019 from the Insurer, pursuant to section 8.10 of the Act.

Tajan Baba
Merit Reviewer, Dispute Resolution Service