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AGE v CIC Allianz Insurance Limited [2019] NSWDRS MR 161

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Merit Review
CatchwordsMedical dispute – minor injury – statutory benefits – medical assessment – legal costs – reasonable and necessary costs – physiotherapy progress report – allied health practitioner
Legislation citedMotor Accident Injuries Act 2017 (NSW) ss 1.3(2)(a), 1.3(2)(b), 7.13(4), 8.3, 8.10, Schedule 2 clause 1 (aa)
Motor Accident Injuries Amendment Regulation 2017 reg 10(d)
Cases cited N/A
Text cited N/A
Parties AGE – Claimant
CIC Allianz Insurance Limited – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Merit Review Certificate

Reasons for Determination

Background

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

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

3.   There is a dispute between AGE and the Insurer in relation to the costs of a Physiotherapy Progress Report prepared by AGE’s treating physiotherapists, Complete Allied Health Care Pty Ltd, dated 19 June 2018 (“the Physiotherapy Report”). AGE 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.   AGE 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.   AGE lodged an application for merit review with the Dispute Resolution Service (“DRS”) on on 8 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.

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”).

10.   AGE’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 AGE as the report was relied upon to understand progress of AGE’s recovery and health. Should the report not be allowed, it may hinder the understanding of the case of the insurer, AGE 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 AGE’s application:

a.   The Insurer disputes that the physiotherapy report dated 19 June 2019 is compensable pursuant to the Act as it is not reasonable and necessary.

b.   AGE’s physiotherapist, Complete Allied Health Care, submitted an Allied Health Recovery Request dated 15 May 2019.

c.   The physiotherapist was advised that the request was partially approved and that no approval was granted for report writing.

d.   physiotherapist then provided a report regardless and has sought to invoice the cost of this to the Insurer.

e.   The provider was advised that the report is not compensable as it was explicitly not approved.

f.   AGE’s solicitors are now attempting to seek the costs of the report as a legal expense under section 8.10 of the Act.

g.   The Insurer notes that section 8.10 of the Act requires an insurer to reimburse AGE 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”.

h.   AGE has made submissions that the report is compensable on the basis that AGE “relied on the report to understand progress of their recovery and health”.

i.   The Insurer notes at the outset that the physiotherapy provider was advised that a report was not required and not approved.

j.  ; The Insurer submits that this is a reasonable position to take given the report provided is entirely a restatement of the Allied Health Recovery Requests. Essentially, the physiotherapist has attempted to charge twice for the same service and is now being supported in that attempt by the AGE’s legal representatives.

k.   The sections “Summary of Assessment Findings” and “Current Functional Capacity” in the report is drawn wholly, if not identical with, “Current Signs and Symptoms” in the Allied Health Recovery Requests.

l.   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 (online) “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.

m.  The Insurer submits that the report is not reasonable and necessary given it is a restatement of the Allied Health Recovery Request and is not an efficacious medicolegal 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.

n.    As such, the Insurer submits that the report is not a reasonable and necessary legal cost compensable under section 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 claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).

13.   AGE 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 determine whether the cost incurred for the Physiotherapy Report subject to this dispute is ‘reasonable and necessary’ such that AGE 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 AGE’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 8 physiotherapy sessions (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 that 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 19 June 2019, despite the Insurer not providing approval for the costs of the report. It appears an invoice 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.   AGE’s legal representatives appear to have re-sent the invoice to the Insurer and requested payment sometime in June or July 2019. There is an email before me from the Insurer to AGE’ legal representatives dated 8 July 2019 in which the Insurer responds:

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 as well as what treatment is recommended and the cost of the treatment and 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 dated 21 May 2019. The Insurer subsequently completed section 7 of the form and clearly indicated that the request was ‘partially approved’, providing approval for 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. The report is just over 1 page.

25.   AGE 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, AGE 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 is a reinstatement of the Request Form and does not add anything further to the existing information on the claim. It is submitted that the report is not an efficacious medicolegal report in respect of injury aetiology, treatment or diagnosis. The Insurer also refers to SIRA guidance material online in the form of FAQs titled “Providing allied health services in the NSW CTP scheme – FAQs” and emphasises that further information is only to be provided upon request from the insurer.

27.   I acknowledge AGE’s submission that the Physiotherapy Report may include some information which may be useful in respect AGE’ 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 AGE were ‘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, and supported by the FAQs the Insurer refers to above, that the approval is the insurer’s decision and allied health providers should not expect to have costs of services reimbursed where an insurer has clearly declined to approve costs.

30.   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 the Request Form.

31.   AGE’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 information was required or needed to be cleared up or the dispute or legal proceedings that the report was required for.

32.   AGE’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 or necessary.

34.   I find that the cost of the Physiotherapy Report incurred by AGE 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  AGE is not entitled to recover the costs of the Physiotherapy Progress Report dated 19 June 2019 from the Insurer, pursuant to section 8.10 of the Act.

Tajan Baba
Merit Reviewer, Dispute Resolution Service