ABV v AAI Ltd t/as GIO
[2021] NSWPICMR 26
•28 June 2021
| 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, ABV is entitled to recover from the Insurer against whom the claim is made the reasonable and necessary, and other costs and expenses, incurred by ABV in connection with the claim.
(c) In ALV v NRMA Insurance (Merit Review) [2020] NSWSIRADRS 105, Merit Reviewer Toohey determined:
“The DRS has jurisdiction to determine disputes arising in relation to costs and expenses as merit review matters under Schedule 2 cl 1 (aa) of the Act.”
(d) The interpreting service was provided to ABV for her attendance at treatment and care.
(e) Therefore, the Insurer should approve and pay the invoice of the interpreter as they are costs incurred.
The Insurer in response makes a number of submissions in respect to its denial to pay the interpreter fees, and the following submissions in respect to the Commission’s jurisdiction to determine the dispute:
(a) The Commission does not have jurisdiction to determine the dispute under Schedule 2 of the 2017 Act.
(b) The Commission does not have jurisdiction to conduct a merit review of the dispute under clause 1(aa) of Schedule 2 because section 8.10 of the 2017 Act provides for an entitlement for the recovery of costs and expenses incurred by a Claimant “in connection with the claim”. The reference to ‘claim’ in section 8.10 is a reference to claims for statutory benefits under Part 3 of the 2017 Act. Statutory benefits are provided under Part 3 to be ‘weekly payments’ and ‘treatment and care’.
(c) The items in dispute, interpreting services, are neither weekly payments nor fall within the definition of ‘treatment and care’ under the 2017 Act. They are not ‘statutory benefits’ under the 2017 Act.
(d) Accordingly, ABV does not have an entitlement to recover such costs under section 8.10 of the 2017 Act. The Commission therefore does not have jurisdiction to review the dispute under Schedule 2(1)(aa).
(e) Disputes that arise relating to section 3.24 do fall within the jurisdiction of the Commission, under clause 1(i) of Schedule 2, as a merit review matter, reviewing: (i) whether the cost of treatment and care provided to ABV is reasonable for the purposes of section 3.24 (1)(a) (Entitlement to statutory benefits for treatment and care).
(f) The Insurer provides the definition for ‘Treatment and care’ under section 1.4(1) of the 2017 Act. It is submitted that the Commission does not have the jurisdiction to accept and refer the dispute in relation to payment of an interpreting invoice, as these interpreting service invoices do not fall within the definition of ‘treatment and care’ provided under section 1.4(1) of the 2017 Act.
(g) There is no entitlement to recover the cost of payment of an interpreting invoice under section 3.24 of the 2017 Act and the Commission therefore does not have jurisdiction to review the dispute under Schedule 2(1)(aa).
The Insurer made further submissions on 10 February 2021, in respect to ABV seeking unregulated costs on the basis of exceptional circumstances and the 25% costs penalty sought under section 6.21 of the 2017 Act.
Further submissions were made again by the Insurer on 25 February 2021 relating to the circumstances that ABLE interpreting were engaged and issues with a failure to seek pre-approval, as well as the rates charged by ABLE interpreting. The Insurer also referred to section 1.3(2)(g) of the 2017 Act and made submissions regarding the objects of the 2017 Act and the cost effective and just resolution of disputes.
Following a teleconference with the parties held 1 June 2021, ABV’s legal representatives made further submissions in relation to ABV’s entitlement to the interpreter fees and the following submissions in respect to the Commission’s jurisdiction to determine the dispute:
(a) Sections 1(i), 1(aa) and 3(n) of Schedule 2 of the 2017 Act apply in respect to the Commission’s jurisdiction.
(b) Section 8.10(1) of the 2017 Act specifies:
“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.”
(c) According to section 1.4(1) of the 2017 Act:
“4.1. claim means a claim for statutory benefits or a claim for damages.
4.2. statutory benefits means statutory benefits payable under Part 3.
4.3. treatment and care means the following—
4.3.1. (a) medical treatment (including pharmaceuticals),
4.3.2. (c) rehabilitation,
4.3.3.(l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,”
(d) According to the ‘Providing allied health services in the NSW CTP schemes – FAQs’ in the Resources library issued by SIRA,
“5.1. All allied health practitioners must include the relevant service code(s), listed below, when requesting approval for services.
5.2. 402
5.3. Psychology and counselling services
5.4. Includes the assessment and therapy/treatment provided by a psychologist or counsellor.
5.5. Includes any interpreter costs to enable delivery of the service. Does not include when the psychologist or counsellor is providing case management services.”
(e) As a result, any interpreter costs to enable delivery of the service is part of the relevant service delivered by a psychologist, which is an allied health practitioner.
(f) The interpreter’s service satisfies the definition of a treatment and care based on 4.3.1, 4.3.2 and 4.3.3 above.
(g) Part 3 of the 2017 Act refers to statutory benefits including that for treatment and care.
(h) Psychotherapy is a form of medical treatment and a form of rehabilitation. Therefore, psychotherapy and any interpreter services provided to enable delivery of the service are a form of treatment and care prescribed under Part 3 of the 2017 Act.
(i) Therefore, as the interpreter services have now been provided without the account being paid by the Insurer, the interpreter fees incurred relate to a claim for statutory benefits as an allied health practitioner’s service in providing treatment and care.
(j) As a result, section 8.10(1) of the 2017 Act stands in the manner of this dispute. It is thereby submitted that the Merit Reviewer has the jurisdictional power to accept the dispute application under section 1(i) and section 1(aa) of Schedule 2 of the 2017 Act.
(k) ABV’s legal representatives attach a copy of ALV v NRMA Insurance (Merit Review) [2020] and refer to Merit Reviewer Toohey’s findings below:
“Taking into account that English is not ALV’s first language and that the Insurer acknowledges that payment of the invoice is reasonable and necessary, I am satisfied that the Insurer is required to pay this invoice.
However, Section 8.10(1) refers to costs/expenses that have been incurred by a claimant. The Act does not allow for approval of costs/expenses that have not been incurred and it is therefore not possible for me to approve payment of interpreter services that have not been provided and therefore no fees incurred.
In the future, once interpreter costs have been incurred, ALV may seek approval for payment from the Insurer who can consider whether they are reasonable and necessary. If the insurer declines payment, there is an opportunity for ALV to lodge an application for resolution of that dispute at the DRS.
For the reasons provided above, I am satisfied that the Insurer is required to pay the invoice for interpreter services from Able Interpreting dated 14 February 2020 in the amount of $308.00 (inclusive of GST).”
(l) The above matter refers to interpreter fees related to providing a legal service. However, it has also been determined that payment of interpreter fees is reasonable and necessary in relation to a specific request for attendance on a treatment provider to a claimant who speaks English as a second language.
(m) Whilst it is understood that the determination of Merit Reviewer Toohey is not binding, it is submitted that this determination should provide a guide as to the interpretation of the relevant application of section 8.10 of the 2017 Act.
(n) Therefore, the cost of treatment and care provided to ABV is reasonable for the purposes of section 3.24 (1) (a) (Entitlement to statutory benefits for treatment and care) 23.
(o) It is submitted that the Merit Reviewer has the jurisdictional power to accept the dispute application under section 1(i) and section 1(aa) of Schedule 2 of the 2017 Act.
(p) It is also submitted that the Merit Reviewer may consider applying section 3(n) of Schedule 2 of the 2017 Act should any of the above submissions is not found to be with grounds.
Reasons
The issue in dispute between ABV and the Insurer is the Insurer’s decision to not approve and make payment of invoices for interpreting services provided for ABV in psychology sessions with Mr Hansen Li, Psychologist.
ABV makes a number of submissions in relation to why the interpreting services were reasonable and necessary and submits the Commission has jurisdiction to determine the dispute on a number of grounds.
The Insurer submits the Commission does not have jurisdiction to determine the dispute and makes a number of submissions about why the interpreting fees were not reasonable and necessary.
Schedule 2 of the 2017 Act sets out the jurisdiction of the Commission and outlines the disputes that can be determined by the Commission as merit review matters, medical assessment matters and miscellaneous claims assessment matters.
As noted above, the Commission put ABV’s legal representatives on notice that it may not have jurisdiction to accept ABV’s application because the dispute did not appear to fall within the jurisdiction of the Commission under Schedule 2 of the 2017 Act.
ABV’s legal representatives submit that the interpreting services were part of the psychology sessions provided to ABV and the dispute is therefore in relation to “whether the treatment and care provided to the injured person is reasonable and necessary” for the purposes of section 3.24. It is submitted that ABV is accordingly able to recover the costs under section 8.10 of the 2017 Act. In the alternative, it is submitted that the Merit Reviewer may consider applying section 3(n) of Schedule 2 of the 2017 Act.
The submissions of the parties have been considered however I am not satisfied that the Commission has jurisdiction to determine ABV’s dispute under Schedule 2 of the 2017 Act, including under the provision referred to by ABV’s legal representatives above. I have provided my reasons in relation the relevant provisions below.
Section 8.10 and Schedule 2(1)(aa)
Section 8.10 of the 2017 Act provides for the recovery of costs and expenses in relation to claims for statutory benefits. It 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 [emphasis added]. Other costs and expenses include the cost of medical and other tests and reports.
…”
Disputes that arise relating to section 8.10 fall within the jurisdiction of the DRS, under clause 1(aa) of Schedule 2, as a merit review matter for review of:
“(aa) 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 are reasonable and necessary.”
I acknowledge the submissions of ABV in relation to the entitlement to recover costs and expenses incurred under section 8.10, however as submitted by the Insurer, the entitlement above relates to costs incurred by a claimant “in connection with the claim”. The reference to ‘claim’ in section 8.10 is a reference to claims for statutory benefits under Part 3 of the 2017 Act. Statutory benefits are provided under Part 3 to be ‘weekly payments’ and ‘treatment and care’.
The fees for the interpreting services in dispute are not ‘weekly payments’ and are not ‘treatment and care’ (for the reasons outlined below) under the 2017 Act.
ABV therefore does not have an entitlement to recover such costs under section 8.10 of the 2017 Act and accordingly the Commission does not have jurisdiction to review the dispute under Schedule 2(1)(aa).
Section 3.24 and Schedule 2(1)(i)
Section 3.24 of the 2017 Act provides for an entitlement to statutory benefits for treatment and care and certain expenses incurred in connection with receiving such treatment. It provides:
“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,
(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.”
Disputes that arise relating to section 3.24 fall within the jurisdiction of the Commission, under clause 1(i) of Schedule 2, as a merit review matter in respect to:
“(i) whether the cost of 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).”
ABV’s legal representatives submit that the interpreting services fall under section 3.24. I note that this section (above) provides an entitlement to statutory benefits for ‘treatment and care’ and travel and accommodation expenses for ‘treatment and care’ for which statutory benefits are payable.
‘Treatment and care’ is defined under section 1.4(1) of the 2017 Act as follows:
”’treatment and care’” means the following:
(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,
but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”
As can be seen above, interpreting services do not fall within the definition of ‘treatment and care’ provided under section 1.4(1) and is not an ‘expense’ incurred in connection with receiving treatment and care under section 3.24.
ABV’s legal representatives refer to section 1.4(1)(l) above, which refers to “other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition” and submit that the ‘Providing allied health services in the NSW CTP schemes – FAQs’ issued by SIRA includes interpreter costs as part of the relevant service delivered by a psychologist (see submissions page13(d)). It is submitted that any interpreter services provided to enable delivery of the service are a form of treatment and care prescribed under Part 3 of the 2017 Act.
I do not accept this interpretation as section 1.4(1)(l) specifically refers to “other… services as may be prescribed by the regulations for the purposes of this definition”. The FAQs issued by SIRA are not the Regulations and in any event, the FAQs only specify that allied health practitioners must include the relevant service code(s) when requesting approval for services (including interpreting). The FAQs do not prescribe interpreting services as ‘treatment and care’ for the purposes of the definition at section 1.4(1) of the 2017 Act.
Accordingly, I do not accept that interpreter services, even those provided to enable delivery of ‘treatment and care’, are a form of treatment and care prescribed under Part 3 of the 2017 Act.
ABV’s legal representatives also refer to ALV v NRMA Insurance (Merit Review) [2020] NSWSIRADRS 105, in which Merit Reviewer Toohey found that if interpreter fees were incurred in the future, there would be an opportunity for the claimant in that matter to lodge an application for resolution of that dispute at the Commission.
As indicated to the parties at the teleconference on 1 June 2021 and acknowledged by ABV’s legal representatives in the submissions above, the decision of Merit Reviewer Toohey is not binding for the subject dispute. In response to the submission that it should act a guide to the interpretation of the application of section 8.10 of the 2017 Act, I note that the legislation over-rides any common law and in my view, the legislative provisions above do not provide for recovery of interpreter services.
ABV therefore does not have an entitlement to recover the interpreter service fees as a statutory benefit under section 3.14 of the 2017 Act and accordingly the Commission does not have jurisdiction to review the dispute under Schedule 2(1)(i).
Schedule 2(1)(n)
ABV’s legal representatives submit that the Merit Reviewer may consider applying clause 3(n) of Schedule 2 of the 2017 Act.
Clause 3(n) of Schedule 2 confers jurisdiction to the Commission for determining the following as a miscellaneous claims assessment matter:
“(n) any issue of liability for a claim, or part of a claim, for statutory benefits [emphasis added] not otherwise specified in this Schedule.”
Given that I have found above that interpreter services are not statutory benefits under Part 3 of the 2017 Act, the Commission does not have jurisdiction to determine ABV’s dispute as a miscellaneous claims assessment matter under Schedule 2(3)(n).
Accordingly, the Commission does not have the jurisdiction to determine the dispute in relation to interpreter services as these services do not fall within the definition of ‘treatment and care’ and statutory benefits under the 2017 Act.
Conclusion
The Commission does not have jurisdiction to review the dispute referred in the application dated 28 January 2021 lodged by ABV.
Legislation and Guidelines
In making this decision, I have considered the following:
· The application, reply and supporting documentation;
· the 2017 Act, and
· Motor Accident Injuries Regulation 2017 (“the Regulations”).
Tajan Baba
Merit Reviewer
Personal Injury Commission
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