ABV v AAI Ltd t/as GIO - [2021] NSWPICMR 26

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	ABV v AAI Ltd t/as GIO [2021] NSWPICMR 26
APPLICANT:	ABV
RESPONDENT:	AAI Ltd t/as GIO
MERIT REVIEWER:	Tajan Baba
DATE OF DECISION:	28 June 2021
CATCHWORDS:	MOTOR ACCIDENTS- Merit review; recovery of costs and expenses under section 8.10 of the Motor Accident Injuries Act 2017; psychology sessions; costs of interpreting services; whether the Commission has jurisdiction; fees for the interpreting services in dispute are not ‘weekly payments’ and are not ‘treatment and care’; Held- Commission does not have jurisdiction to review the dispute.
DETERMINATIONS MADE:	The Commission does not have jurisdiction to review the dispute referred in the application dated 28 January 2021 lodged by ABV.

Background

ABV was injured in a motor vehicle accident on 18 August 2020.
AAI Limited trading as GIO (“the Insurer”) accepted ABV’s claim under the Motor Accidents Injuries Act 2017 (“the 2017 Act”).
ABV attended psychology sessions with Mr Hansen Li, the costs of which were approved by the Insurer. The Insurer declined to provide pre-approval for the costs of interpreting services for these sessions, with the provider Able Interpreting Services.
Able Interpreting Services issued invoices for its services from 25 September 2020, despite the Insurer advising that the service had not been approved. The Insurer formally declined payment of the invoices in letters dated 23 October 2020 and 20 November 2020.
ABV disputed the Insurer’s decision and lodged an application for internal review. On internal review dated 1 December 2020, the Insurer determined that the interpreting fees were not reasonable and necessary as Mr Li was able to conduct the treatment in ABV’s native tongue of Mandarin.
ABV lodged an application for merit review with the Personal Injury Commission (the Commission) (previously the Dispute Resolution Service) on 28 January 2021. ABV sought recovery of the interpreting invoices no.4061, no.4149, no.4271 and no.4388 under section 8.10 of the 2017 Act, which relates to the recovery of costs and expenses in connection with a claim for statutory benefits.
In submissions dated 5 February 2021 and 1 June 2021, ABV also sought legal costs other than as permitted by the Motor Accident Injuries Regulation 2017 (“the Regulations”) in accordance with section 8.10(4) of the 2017 Act, a costs penalty for an increase of 25% under section 6.21 of the 2017 Act and a monthly charge of interest of 3.5%.
On 1 June 2021 a teleconference was held with the parties at the Insurer’s request. The parties were put on notice in respect to issues relating to the Commission’s jurisdiction to determine the dispute for interpreting services.

Submissions

In the application for merit review, ABV makes a number of submissions in relation to her entitlement to recover the costs of the interpreter fees, and the following submissions in respect to the Commission’s jurisdiction to determine the dispute:
(a) The application is made in accordance with section 1(aa) of Schedule 2 of the 2017 Act.
(b) Pursuant to section 8.10 of the 2017 Act,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPICMR 26
Decision Date: 28 June 2021

CaseChat Overview and Summary

ABV was a passenger in a car when it collided with a vehicle driven by AAI Ltd. The accident resulted in injuries to ABV, who sought compensation under the Motor Accident Injuries Act 2017. The dispute centred on the costs and expenses incurred by ABV for psychology sessions, including the costs of interpreting services, which AAI Ltd disputed. The case was heard and determined by the New South Wales Civil and Administrative Tribunal (NCAT).

The central legal issues before the NCAT were whether the fees for the interpreting services constituted 'weekly payments' or 'treatment and care' as defined in the Act, and whether the NCAT had jurisdiction to review these costs. The NCAT had to interpret the legislative provisions and determine if the services in question fell within the scope of the Act's definition of 'weekly payments' or 'treatment and care'. Additionally, the NCAT had to consider whether it had the authority to review the matter under the statutory framework.

In its determination, the NCAT held that the fees for the interpreting services were not categorised as 'weekly payments' or 'treatment and care' under the Act. The NCAT reasoned that the interpreting services were not directly related to the medical treatment or care provided to ABV but rather facilitated communication during the treatment process. As a result, the NCAT concluded that it did not have jurisdiction to review the dispute over these costs. The Tribunal emphasised the importance of correctly interpreting the statutory definitions and limitations to ensure the proper application of the Motor Accident Injuries Act.

The NCAT dismissed the application, and no further orders were made. The decision underscored the need for clarity in statutory interpretation to determine the scope of the Tribunal's jurisdiction in reviewing disputes under the Motor Accident Injuries Act.

Orders