AAI Limited t/as AAMI v Wang
[2023] NSWPICMR 29
•18 May 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | AAI Limited t/as AAMI v Wang [2023] NSWPICMR 29 |
| ClaimanT: | Suorong Wang |
| Insurer: | AAI Limited t/as AAMI |
| Merit Reviewer: | Katherine Ruschen |
| DATE OF DECISION: | 18 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute about payment of reasonable and necessary other costs and expenses under Part 8; whether medico-legal report fees subject to a maximum amount payable; whether interpreter fees reasonable and necessary; sections 8.10 and 8.4, Schedule 2(1)(aa); Clauses 20, 22, 27 and 28, Schedule 1(1) of the Motor Accident Injuries Regulation 2017; Held – the reviewable decision is set aside. |
| Determinations made: | CERTIFICATE OF DETERMINATION Issued under section 7.13(4) of the DETERMINATION The reviewable decision is about the amount of other costs and expenses incurred by the claimant that are payable under Part 8 of the Motor Accident Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(aa) of the MAI Act. 1. The reviewable decision is set aside and: (a) the insurer is to pay the maximum sum of $1,660.16 (16 monetary units) for Dr Davis’ fee in respect of the report of Dr Davis dated 29 October 2020; (b) if satisfied the cost is reasonable and necessary, the insurer is to pay $184.80 for interpreter fees in respect of the assessment of Dr Davis on 28 October 2020; (c) if the insurer is not satisfied the interpreter cost is reasonable and necessary on the information currently available the insurer is to immediately make further enquiry with a view to determining whether the cost is reasonable and necessary, and (d) payment of the above is subject to production of invoices by the claimant to the insurer, if the insurer is not already in receipt of the invoices. 2. The claimant’s entitlement to costs of this merit review is nil. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Suorong Wang (the claimant) and the insurer about the amount of other costs and expenses incurred by the claimant that are payable under Part 8 of the MAI Act.
The claimant was involved in a motor accident on 27 February 2018.
There have been medical disputes between the parties.
According to the claimant, on 26 July 2019 the insurer refused to agree to obtain a “joint” medico-legal assessment and report by Dr John Davis.
On 9 August 2019, the claimant requested an internal review of the insurer’s decision to refuse a joint medico-legal assessment and report.
It is not clear whether the insurer conducted an internal review. The issue of whether there should be a joint report is the subject of a separate miscellaneous claims assessment dispute.
The claimant has provided an invoice from Dr John Davis dated 21 August 2019 in the sum of $1,796.30 inclusive of GST.
The claimant’s documents do not appear to include any report in respect of the 21 August 2019 invoice nor any invoice for interpreter fees incurred on or about 21 August 2019.
The claimant’s documents include a report of Dr Davis dated 29 October 2020 in respect of an assessment of the claimant on 28 October 2020. The report states the claimant was accompanied by an interpreter on 28 October 2020.
I do not appear to have been provided with an invoice for the report of Dr Davis dated 29 October 2020. Documents indicate the claimant claims $2,090 for a report of Dr Davis. As this figure differs from the invoice dated 21 August 2019, I infer the costs in issue are the costs of Dr Davis’ report of 29 October 2020 and not any earlier report.
The documents indicate the claimant claims $184.80 for an interpreter to accompany them to the assessment by Dr Davis on 28 October 2020. I do not appear to have been provided with a copy of the relevant invoice.
The claimant has requested a merit review of the insurer’s decision to decline payment of Dr Davis’ report fee in the full amount of $2,090 together with the interpreter’s fee.
It is unclear whether the claimant sought an internal review in respect of the costs of Dr Davis’ report of 29 October 2020. However, this is a merit review about whether the costs in question are reasonable and necessary under s 8.10 of the MAI Act. Pursuant to cl 10(d) of the Motor Accident Injuries Regulation 2017 (the Regulation) an internal review is not required before making an application for a merit review in relation to whether costs are reasonable and necessary under s 8.10 of the MAI Act. I therefore have jurisdiction to determine the dispute under Schedule 2(1)(aa) regardless of whether there has ben an internal review.
SUBMISSIONS
The claimant is legally represented. Something must be said about the way in which the claimant has presented his case for the purpose of this merit review in the context of legal representation.
The claimant has provided in excess of 3,400 pages of documents. The majority of these documents are not relevant to this merit review.
The claimant also has on foot an application for:
(a) a miscellaneous claims assessment in which it is understood the claimant seeks orders from the Personal Injury Commission (Commission) for a joint expert medical report, and
(b) a medical assessment as to whether treatment in connection with referral to a neurosurgeon is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of s 3.24.
It is also difficult to see how all of the 3,400 pages of documents could be relevant to these other two disputes.
This merit review is about the discreet issue of whether the costs of Dr Davis’ report are reasonable and necessary. The claimant has made no effort to identify which documents he relies on in this merit review in the 3,400 pages of documents provided. Indeed, the claimant’s submissions do not address the issues in dispute in this merit review at all and focus only on the medical dispute.
The application for a merit review also does little to assist in so far as this merit review is concerned. It simply states the following in respect of the requested outcome:
“Whether for the purposes of section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant for IME with Dr John Davis are reasonable and necessary…For the purposes of section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant for IME with Dr John Davis are reasonable and necessary”.
The claimant’s approach to this merit review, including by providing over 3,400 pages of documents with no consideration as to relevance, is inconsistent with the obligations of the claimant and their solicitor under the guiding principle in s 42 of the Personal Injury Commission Act 2020 (PIC Act).
The insurer submits the costs of Dr Davis’ report are capped under Sch 2, cl 28 of the Regulation and the maximum amount payable by the insurer is 16 monetary units for a medical examination (where both parties have not jointly agreed to the appointment of the specialist). The insurer submits the maximum amount payable for Dr Davis' report is therefore $1,660.16.
There does not appear to be any dispute that the costs of Dr Davis’ report are reasonable and necessary. The dispute appears to be limited to whether the claimant is entitled to the whole of the cost of Dr Davis’ report said to be $2,090 or whether the insurer’s liability to pay the costs of the report is capped at 16 monetary units.
CONSIDERATION
The legislation
Section 8.10 of the MAI Act provides:
“(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 Commission.
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that--
(a) the claimant is a person under legal incapacity, 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”.
Under s 8.10 “legal” costs are regulated such that only legal costs permitted by the Regulation are payable by the insurer (s 8.10(3)). Other costs and expenses that is, other than legal costs, incurred by the claimant in connection with the claim are payable under s 8.10 if they are reasonable and necessary subject to subsection 8.10(2) and s 8.4 of the MAI Act.
Sub-section 8.10(2) provisions for the fixing of maximum amounts payable for other costs and expenses by the Regulation.
Section 8.4 of the MAI Act applies specifically to other costs and expenses in the nature of medico-legal costs and relevantly provides:
(1) The regulations may make provision for or with respect to fixing maximum fees for the provision by health practitioners of the following services--
(a) …,
(b) provision of any medical report for use in the assessment of a claim under Division 7.6, in a medical assessment by a medical assessor under Division 7.5 or in a merit review under Division 7.4,
(c) ….
(2) A health practitioner is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed under this section for the provision of the service.
(3) …
Division 3 of the Regulation pertains to medico-legal fees and expert witnesses.
Clause 27 of Division 3 of the Regulation states Division 3 applies in respect of fees for the provision of medical reports, and appearances as witnesses, by health practitioners.
Dr Davis is a medical expert who has provided a medico-legal report in connection with the claim. Section 8.4 of the MAI Act and Division 3 of the Regulation therefore apply to Dr Davis’ fee.
Clause 28(1) of Division 3 of the Regulation provides the following in relation to costs and expenses that fall under s 8.4 of the MAI Act that is, medico-legal costs:
“(1) The maximum fees for providing a service specified in Schedule 2 in relation to any motor accident are the fees set out in that Schedule for that service, except as otherwise provided by this Part.”
For the purpose of cl 28(1) of the Regulation Schedule 2 of the Regulation relevantly provides, at item 7:
7 Report made by a specialist who has not previously treated the patient (where both parties have not jointly agreed to the appointment of the specialist)-- (a) if an examination of the patient is not required 12 monetary units (b) if an examination of the patient is required 16 monetary units
The report of Dr Davis was not jointly agreed by the parties therefore item 7, as set out above applies.
An examination of the claimant formed part of Dr Davis’ report. Accordingly, pursuant to s 8.10(2) of the MAI Act, clause 28(1) of the Regulation and Schedule 2 of the Regulation the maximum amount payable by the insurer for Dr Davis’ fee is 16 monetary units.
Interpreter fees
The interpreter fee falls into the category of other costs and expenses but is not regulated by cl 28 of the Regulation. Pursuant to clause 20 of the Regulation interpreter fees are not regulated costs such that there is no cap/fixed amount payable. That said, the cost must still be reasonable and necessary under s 8.10.
I have not been provided with any information by the claimant upon which I could assess whether the cost of an interpreter in connection with Dr Davis’ appointment was both reasonable and necessary. Nor have I been provided with the invoice. Dr Davis simply records in his report that an interpreter was present. He does not indicate whether it was necessary to conduct the assessment through the interpreter. Accordingly, I am unable to determine whether this cost is payable by the insurer. If the insurer is not satisfied the cost is reasonable and necessary, they are to make enquiry in this regard and pay the invoice amount of $184.80, if satisfied the cost is reasonable and necessary.
Costs of this merit review
The claimant’s submissions indicate the claimant also claims costs of this merit review.
Pursuant to s 8.10(3) the claimant is only entitled to costs of this merit review if they are permitted by the Regulation. Permitted costs are set out in Schedule 1, cl 1 of the Regulation. A merit review under Schedule 2(1)(aa) of the MAI Act is not listed in Schedule 1(1) of the Regulation. Accordingly, costs of a merit review are not costs permitted by the Regulation and are therefore not recoverable by the claimant. Accordingly, the claimant’s entitlement to costs of this merit review is nil.
In so far as the claimant also claims costs of the other disputes on foot being a miscellaneous claims assessment and a medical assessment, any claim for costs is premature as it is understood those disputes have not yet been determined. Until the disputes have been determined the extent to which the claimant has incurred reasonable and necessary costs cannot be assessed. That said, in so far as the miscellaneous claims assessment is concerned it would appear the claimant has no entitlement to recover costs of that dispute in any event for similar reasons that there is no entitlement to costs of this merit review. Costs of the type of miscellaneous assessment sought by the claimant do not appear to be permitted by Schedule 1(3) of the Regulation.
CONCLUSION
This merit review has proceeded on the basis the dispute is in relation to the sum of $2,090 incurred by the claimant as a fee for Dr Davis’ report dated 29 October 2020 and the sum of $184.80 for an interpreter to attend the assessment with Dr Davis on 28 October 2020.
If the insurer does not have a copy of the invoices in respect of the above a request should be made to the claimant immediately for the provision of same. If such request is made the claimant is to immediately provide the invoices to the insurer.
For the reasons set out above, the claimant’s entitlement to payment of Dr Davis’ fee by the insurer is capped at 16 monetary units that is, $1,660.16.
The interpreter fee is payable by the insurer in the sum of $184.80 provided it was reasonable and necessary for the claimant to be accompanied by an interpreter for the assessment with Dr Davis on 28 October 2020 (if the insurer is not satisfied it was reasonable and necessary the insurer may make an enquiry, for example with Dr Davis, in order to be satisfied the cost was reasonable and necessary).
Accordingly, the reviewable decision is set aside and:
(a) the insurer is to pay the maximum sum of $1,660.16 (16 monetary units) for Dr Davis’ fee in respect of the report of Dr Davis dated 29 October 2020;
(b) if satisfied the cost is reasonable and necessary, the insurer is to pay $184.80 for interpreter fees in respect of the assessment of Dr Davis on 28 October 2020;
(c) if the insurer is not satisfied the interpreter cost is reasonable and necessary on the information currently available the insurer is to immediately make further enquiry with a view to determining whether the cost is reasonable and necessary, and
(d) payment of the above is subject to production of invoices by the claimant to the insurer, if the insurer is not already in receipt of the invoices.
The claimant’s entitlement to costs of this merit review is nil.
LEGISLATION AND GUIDLINES
In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines,
· the Regulation, and
· the PIC Act.
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