AAM v AAMI Ltd
[2021] NSWPICMR 3
•9 March 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | AAM v AAMI Ltd [2021] NSWPICMR 3 |
| APPLICANT: | AAM |
| RESPONDENT: | AAMI Ltd |
| MERIT REVIEWER: | Michael Sofoulis |
| DATE OF DECISION: | 9 March 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review - whether the cost of treatment and care provided to the claimant is reasonable under section 3.24(1)(a) of the Motor Accident Injuries Act 2017; purchased Norflex Tablets at a cost of $42.99; muscle relaxant; soft tissue injuries; pre-existing age-related condition; long-standing history of neck pain; unusual persisting mechanical pain in the left occipital region; Held- reviewable decision set aside; claimant is entitled to the reasonable cost of statutory benefits for treatment expenses. |
| DETERMINATIONS MADE: | 1. The reviewable decision is: i) set aside and the following decision is made in substitution for the reviewable decision: ii) The claimant is entitled to recover from the Insurer the treatment expense of $42.99. 2. This decision takes effect on 10 March 2020. 3. The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $Nil. |
Statement of Reasons
Background
There is a dispute between AAM and the Insurer about whether the cost of treatment and care provided is reasonable for the purposes of section 3.24(1)(a) of the Act,
The claimant was injured in a motor vehicle accident on 8 March 2018.
The claimant lodged an Application for personal injury benefits on 1 June 2018.
At date of accident the claimant was employed as an Administration Manager for XXX Retail.
On 29 June 2018 the insurer issued a “Liability Notice – Benefits up to 26 weeks” which stated the claimant would receive statutory benefits for up to 26 weeks.
On 18 December 2020 the insurer issued a “Liability Notice – Benefits after 26 weeks” which stated the claimant was entitled to receive statutory benefits beyond 26 weeks because she had sustained a non-minor injury.
On 15 December 2020 the claimant purchased Norflex Tablets at a cost of $42.99.
On 16 December 2020 the claimant provided a copy of a receipt for the Norflex to the insurer and requested reimbursement of this treatment expense.
On 16 December 2020 the insurer wrote to the claimant and formally declined to reimburse this treatment expense. The insurer wrote:
“We received the receipt for Norflex $42.99. We note that this medication is used for muscle relaxant. The request is not pre-approved medication and not related to the injuries sustained in the motor vehicle accident. Therefore will not be reimbursed. Any expense incurred for treatment and care which was not pre-approved by our office may not be covered under your statutory benefit application and will be returned to you for payment.”
10. On 16 December 2020 the claimant’s solicitor requested an Internal Review of the insurer’s decision to decline reimbursement of this treatment expense.
11. The insurer conducted an Internal Review and issued a Certificate of Determination on 23 December 2020 affirming the original decision.
12. The claimant disputes the insurer’s decision and lodged an application for Merit Review with the Dispute Resolution Service on or about 17 February 2021.
13. The application for Merit Review was lodged in accordance with s7.12(1) of the Act and the Motor Accident Guidelines.
Submissions
14.The claimant’s submissions in support of her application for Merit Review are summarised below:
15.The claimant submits that her injuries, disabilities and impairments, as a result of the motor accident, are ongoing and she is taking such steps, as recommended by her treatment providers, to mitigate her damages.
16.The claimant further submits that the medication in dispute has been prescribed to her as a direct result of the motor accident.
17.The insurer’s submissions in reply are summarised below:
18.The insurer submits that Norflex is not considered to be reasonable and necessary treatment or related to injuries suffered in the subject accident and the request for reimbursement was therefore denied.
19.The Statement of Reasons – Internal Review dated 23 December 2020 stated: “The writer notes that Norflex tablets are used for the management of pain and as a muscle relaxant. In light of your long-standing History of Neck pain and Dr Keller’s professional opinion with respect to the regression of your motor accident related symptoms with the passage of time. The writer considers that your soft tissue injuries should have settled, and that any ongoing symptomology is likely related to your pre-existing age-related condition. Accordingly, the writer is unable to correlate the use of Norflex with any ongoing muscle tension or pain as a result of the subject motor vehicle accident, especially in the absence of any clear medical rationale from your GP or specialist.
20.The insurer’s submissions dated 23 February 2021 state: “Norflex tablets are used for the management of pain as a muscle relaxant. The insurer notes that the claimant has had a long-standing history of neck pain which has been documented throughout the medical evidence received by the insurer. Further, the insurer refers to Dr Andrew Keller, Occupational Physician who reported the claimant’s symptomology arising as a result of the subject motor vehicle accident had regressed with the passage of time and treatment received to date, and, the ongoing symptomology was likely related to the claimant’s pre-existing age-related condition which cannot be attributed to the motor vehicle accident.”
21.The insurer further submits: “Therefore, the insurer submits in the absence of any clear medical rational from the claimant’s treating GP or Specialist there is no evidence to indicate that the use of Norflex for ongoing muscle tension or pain is related to the soft tissue injuries sustained as a result of the subject motor vehicle accident.”
Reasons
22.There is a dispute between the claimant and the insurer as to whether treatment and care provided to the claimant is reasonable for the purposes of section 3.24 (1)(a) – (Entitlement to statutory benefits for treatment and care).
23.Pursuant to section 3.24(2) the insurer has declined to reimburse a treatment expense incurred by the claimant on the basis that the treatment is not reasonable or necessary or related to the injuries sustained in the subject accident.
24. Section 3.24 of the Motor Accident Injuries Act 2017 deals with an entitlement to statutory benefits as follows:
3.24 ENTITLEMENT TO STATUTORY BENEFITS FOR TREATMENT AND CARE
(1) An injured person is entitled to statutory benefits for the following expenses
(“treatment and care expenses" ) incurred in connection with providing treatment and care for the injured person--
(a) the reasonable cost of treatment and care,(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
25. Treatment and care is broadly defined in section 1.4 of the Act and includes:
(a) medical treatment (including pharmaceuticals),
(b) dental treatment,
(c) rehabilitation,
(d) ambulance transportation,
(e) respite care,
(f) attendant care services,
(g) aids and appliances,
(h) prostheses,
(i) education and vocational training,
(j) home and transport modification,
(k) workplace and educational facility modifications,
(l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition.
26.There is no dispute that the treatment expense claimed is ‘treatment’ as defined by section 1.4.
27.The insurer relies on two propositions in relation to the reviewable decision. The first is that the claimant’s soft tissue injuries should have settled and the second is that any ongoing symptomology is likely to be related to pre-existing age-related conditions.
28.The insurer refers to the opinion of Dr Keller, Occupational Physician and his report dated 30 July 2019 in support of the above propositions. Under the heading “Presenting Complaint” Dr Keller noted the claimant reporting “constant occipital pain.” In relation to future treatment Dr Keller expressed the opinion that “In the long term it is my opinion that the effects of the subject accident will wane and her treatments going forward will become more and more related to her age and not the effects of the subject accident.”
29.On 18 May 2020, at the request of the insurer the claimant’s GP Dr Danigowda provided a report. Dr Danigowda reported: “AAM developed chronic neck pain following a motor vehicle accident on 8 March 2018. She has been tried with numerous medications for the relief of pain. She has been seen by multiple specialists including pain specialists for management of chronic pain. Currently she is taking narcotics and anti-inflammatory medications for the pain management. It is providing partial relief to perform some daily activities. It has slightly improved quality of daily living as well.”
30.At the insurer’s request the claimant was examined by Dr John O’Neill, Neurologist. In his report dated 13 July 2020 the claimant told Dr O’Neill that her only complaint “was constant localised pain and she pointed to the region of her left lower occiput.” Under the heading “Conclusions” Dr O’Neill stated: “The mechanism for current pain has not been elucidated but I found Ms Gibbons to be genuine in presentation and I accept that she has had an unusual persisting mechanical pain in the left occipital region which is aggravated by neck movement and which has been constant since the MVA of 11/3/18 (sic).” In relation to future treatment Dr O’Neill expressed the opinion that it “will simply depend on the use of analgesic medication as required and as prescribed by Ms Gibbons’ GP.”
31.On 15 December 2020 the claimant sent an email to the insurer regarding the Norflex medication. She wrote: “This is directly because of the car accident. The pain has got so bad that my doctor has had to give me this new prescription to sell (sic) with the pain as the other medication is not enough.”
32.I make no findings with respect to the medical evidence. Any determination as to whether any specific treatment, including the use of Norflex, is reasonable and necessary or related to the injuries sustained in the subject accident can only be determined by a suitably qualified medical assessor.
33.The only question I have been asked to address is whether the cost of treatment and care provided to the claimant is reasonable for the purposes of section 3.24(1)(a) of the Act.
34.In making my decision I have considered the Objects of the Act. Specifically, section 1.3(2)(a) and (b) which I have produced below:
(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,
(b)to provide early and ongoing financial support for persons injured in motor accidents,
I’m satisfied that the claimant is entitled to the reasonable cost of statutory benefits for treatment expenses incurred by the claimant. I find that the sum of $42.99 is a reasonable cost of the treatment provided for the purposes of section 3.24(1)(a) of the Act.
Conclusion
35. The reviewable decision is:
i) set aside and the following decision is made in substitution for the reviewable decision:
ii) The claimant is entitled to recover from the insurer the treatment expense of $42.99.
36. This decision takes effect on 10 March 2020.
37.The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $Nil.
Legislation and Guidelines
38.In making this decision, I have considered the following:
· The application, reply and supporting documentation
· Motor Accident Injuries Act2017 (NSW) (the Act)
· Motor Accident Guidelines
· Personal Injury Commission Rules 2021
· Motor Accident Injuries Regulation 2017
Michael Sofoulis
Merit Reviewer
Personal Injury Commission
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