AAZ v NRMA Insurance Ltd
[2021] NSWPICMR 13
•26 May 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | AAZ v NRMA Insurance Ltd [2021] NSWPICMR 13 |
| APPLICANT: | AAZ |
| RESPONDENT: | NRMA Insurance Ltd |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 26 May 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- whether the treatment and care is reasonable and necessary or relates to the injury under section 3.24(2) of the Motor Accident Injuries Act 2017; dispute is about causation; treatment not causally related to injury sustained; Schedule 2 limits merit reviews to the cost of treatment and care; do not have jurisdiction; Held- make an application for a medical assessment; not a merit review matter; application dismissed as no jurisdiction. |
| DETERMINATIONS MADE: | 1. A dispute under section 3.24(2) as to whether the treatment and care provided to AAZ is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident is not a merit review matter under Schedule 2 of the Act. 2. Accordingly, this merit review application is dismissed on the basis I do not have jurisdiction to determine the matter. |
Background
There is a dispute between AAZ and the Insurer about whether the cost of treatment and care provided to AAZ is reasonable and necessary in the circumstances, or related to the motor accident, for the purposes of section 3.24 of the Act.
AAZ was involved in a motor accident on 22 December 2017.
AAZ submitted a claim to the Insurer for reimbursement of various treatment expenses under section 3.24 of the Act (the Reimbursement Claim).
The Insurer denied the Reimbursement Claim on the basis it contended the treatment was not causally related to any injury sustained as a result of the motor accident.
On 15 December 2020 AAZ requested an internal review of the Insurer’s decision to decline the Reimbursement Claim.
On 18 December 2020 the Insurer determined this matter was not a reviewable decision under clause 7.33 or 7.34 of the Motor Accident Guidelines and Schedule 2 of the Act, on the basis the dispute is about causation, as distinct from the reasonableness of costs.
AAZ has applied for a merit review of the Insurer’s decision of 18 December 2020.
Submissions
AAZ submits all of the treatment the subject of the Reimbursement Claim was required as a result of injuries sustained in the subject motor accident. AAZ submits that in refusing the claim the Insurer has ignored large portions of the medical evidence.
The Insurer submits that the treatment costs comprising the Reimbursement Claim are not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
Reasons
Jurisdiction
Nature of the dispute
This Application for a merit review has been put forward by AAZ as an application for a merit review under Schedule 2(1)(i) as to whether the cost of treatment and care provided to AAZ is reasonable for the purposes of section 3.24 of the Act.
Relevantly, the requirement that the cost of treatment and care must be reasonable is contained in section 3.24(1)(a) of the Act.
However, neither party’s submissions address any question arising under section 3.24(1)(a) of the Act as to whether any or all of the costs the subject of the Reimbursement Claim are reasonable (that is, whether any particular cost claimed is a reasonable amount for the particular service or item provided).
The Insurer’s submissions are directed at the causation issue.
AAZ’s submissions acknowledge the basis of the Insurer’s denial of the claim is causation and also only address causation.
Both parties’ submissions adopt the language in section 3.24(2) of the Act, not 3.24(1)(a).
AAZ’s ultimate submission at paragraph 8 of her submissions is that “all of the treatment expenses [claimed] fall within the ambit of what is reasonable and necessary…” (emphasis added), which is the language of section 3.24(2).
It is clear from the submissions of both parties and the supporting documents that the dispute is in fact about causation (that is, whether the costs are reasonable and necessary in the circumstances or relate to the injury caused by the motor accident) and that this is not a dispute under section 3.24(1)(a) of the Act.
The Law
Section 3.24 of the Act deals with entitlement to statutory benefits for treatment and care and provides:
(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,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(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.
(emphasis added)
Schedule 2 of the Act prescribes what is a merit review matter, what is a medical assessment matter and what is a miscellaneous claims assessment matter.
Clause 1(i) of Schedule 2 limits merit reviews in relation to disputes arising under section 3.24 of the Act to “whether the cost of treatment and care provided to the claimant is reasonable for the purposes of section 3.24 (1) (a)…” (emphasis added) .
Accordingly, questions arising under section 3.24(1)(a) about whether the cost itself is reasonable, having regard to the nature of the particular treatment, service or item provided for that cost, can be the subject of a merit review.
However, there is no jurisdiction to conduct a merit review of any other dispute arising under section 3.24, including 3.24(2).
It is clear from the parties’ submissions that this is not a dispute about the reasonableness of any of the costs the subject of AAZ’s Reimbursement Claim under section 3.24(1)(a). Rather, this is a dispute about causation, which arises under section 3.24(2), as to whether the costs are “reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned” (emphasis added).
I do not have jurisdiction to determine a dispute arising under section 3.24(2). As a merit reviewer, pursuant to Schedule 2, clause 1(i) my jurisdiction in relation to matters under section 3.24 is limited to disputes arising under section 3.24(1)(a).
Clause 2(b) of Schedule 2 states the following is a medical assessment matter:
“whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”
This is clearly a matter arising under section 3.24(2). Schedule 2, clause 2(b) of the Act declares disputes arising under section 3.24(2) to be medical assessment matters, not merit review matters.
It is understood from the documents a medical assessment is on foot pursuant to Schedule 2, clause 2(a) of the Act in relation to the degree of permanent impairment. It is not clear whether any party has formally applied for a medical assessment of the dispute arising under section 3.24(2) of the Act pursuant to Schedule 2, clause 2(b).
As I do not have jurisdiction to conduct a merit review of a matter arising under section 3.24(2), this merit review application is dismissed.
If the parties remain in dispute in relation to the causation issue that is, whether the treatment is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident then the appropriate course is for AAZ to make an application for a medical assessment under Schedule 2, clause 2(b) of the Act.
Conclusion
The reviewable decision is about a dispute under section 3.24(2) of the Act as to whether treatment and care provided to AAZ is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident.
Accordingly, my determination is as follows:
(a) A dispute under section 3.24(2) as to whether the treatment and care provided to AAZ is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident is not a merit review matter under Schedule 2 of the Act.
(b) Accordingly, this merit review application is dismissed on the basis I do not have jurisdiction to determine the matter.
Legislation and Guidelines
In making this decision, I have considered the following:
· The application, reply and supporting documentation;
· Motor Accident Injuries Act 2017 (NSW);
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.
Katherine Ruschen
Merit Reviewer
Personal Injury Commission
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