Ahmad v Insurance Australia Ltd T/As NRMA (Motor Accident Injuries) - [2025] ACAT 47

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

AHMAD v INSURANCE AUSTRALIA LTD T/AS NRMA (Motor Accident Injuries) [2025] ACAT 47

MAI 11/2024
Catchwords: MOTOR ACCIDENT INJURIES – Where applicant applied for approval of treatment and care – Where respondent refused application – Whether respondent’s decision affected by error
Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s 9
Motor Accident Injuries Act 2019, ss 20, 33, 66, 112, 113, 120, 192, 193, 197, Sch 1, Part 1.2, item 13

Subordinate

Legislation cited: Motor Accident Injuries (Treatment and Care) Guidelines 2023, clauses 3.2.1, 4.4.2, 6.4.1
Motor Accident Injuries Bill 2019

Cases citedAhmad v Insurance Australia Ltd T/As NRMA [2025] ACAT 11
Bothe v AAI Limited ACN 005 297 807 trading as GIO (Motor Accident Injuries) [2022] ACAT 12
Insurance Australia Limited t/as NRMA Insurance v Hines [2024] NSWPICMP 494
Montgomery and Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2024] ACAT 60
Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2022] ACAT 24
Williams v AAI Limited ACN 005 297 807 trading as GIO (Motor Accident Injuries) [2021] ACAT 100

Tribunal:Presidential Member J Lucy
Date of Orders:  20 June 2025
Date of Reasons for Decision:      20 June 2025
Date of Publication:  27 June 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          MAI 11/2024

BETWEEN:

ANWAR AHMAD
Applicant

AND:

INSURANCE AUSTRALIA LTD T/AS NRMA
Respondent

TRIBUNAL:Presidential Member J Lucy

DATE:20 June 2025

ORDER

The Tribunal orders that:

The respondent’s decision made on 17 December 2024 to decline the applicant’s request for right knee arthroscopy and debridement is affirmed.
………………………………..

Presidential Member J Lucy

REASONS FOR DECISION

Introduction

The applicant was injured in a motor vehicle accident, when another vehicle failed to give way. The respondent, being the insurer of the other vehicle (the insurer), accepted liability under the Motor Accident Injuries Act 2019 (MAI Act).
The applicant sought review of the insurer’s decision not to fund the right knee surgery which he had requested. He contended that the insurer had overlooked information he had provided and submitted that the opinion of the orthopaedic surgeon, on which the insurer had relied when deciding not to approve the treatment, was flawed in various ways. The applicant also complained about the delay in the insurer making its decision and said that the insurer failed to act in good faith.
The applicant has not established that the insurer’s decision was affected by any error of law or fact, so I have affirmed that decision.

Background

Mr Ahmad sustained a work injury in 2015. He had right knee surgery, performed by Dr Rizkallah Sherif, on 28 August 2015. He was certified fit for pre-injury duty in September 2020.
Mr Ahmad was injured, on 29 March 2023, in a motor vehicle accident.
Mr Ahmad made a defined benefits application to the insurer on 4 April 2023. In that application, he stated that he had received injuries “on my face/jaws, head, shoulders, neck, spine and knees” as a result of the accident.
On 19 April 2023, the insurer accepted liability for defined benefits from the date of the accident.
On 9 June 2023, orthopaedic surgeon, Dr Asher Livingston, reported to Mr Ahmad’s general practitioner that Mr Ahmad reported experiencing a chronic dull pain in his right knee that has become exacerbated. Dr Livingston recommended that Mr Ahmad continue with non-operative management for the right knee “for the time being.”
On 30 October 2023, Dr Raymond Wallace, orthopaedic surgeon, reported to the insurer that Mr Ahmad would benefit from weekly visits to physiotherapy for six weeks in relation to his bilateral knee conditions.
On 1 February 2024, Dr Livingston reported to Mr Ahmad’s general practitioner that the motor vehicle accident had stirred up the right knee degeneration and that Mr Ahmad may benefit from an arthroscopy to clean up loose chondral flaps. The Tribunal understands arthroscopy to be a procedure that uses a small camera to look inside a joint and diagnose or treat problems.
On 15 March 2024, Dr Livingston stated in a letter to Mr Ahmad’s general practitioner that Mr Ahmad said his right knee had never fully settled since the car accident and that he had some intermittent mechanical symptoms in the right knee. Dr Livingston stated: “I would recommend that he have a right knee arthroscopy + debridement of loose chondral flaps” (original emphasis). The doctor observed that an arthroscopy is indicated to provide symptomatic relief and improve day to day function.
On the same day, Dr Livingston made a request to the insurer, on behalf of Mr Ahmad, for right knee arthroscopy and debridement. As the Tribunal understands it, debridement is the process of removing dead skin and foreign material from a wound to promote healing.
On 20 April 2024, Dr Livingston wrote to the insurer. He stated that it was his opinion that the motor vehicle accident “has stirred up a previously asymptomatic knee.” He stated that, although he had originally suggested trying non-surgical management, that had not yielded an appropriate response as Mr Ahmad was still having pain. The doctor expressed the opinion that the surgery requested would increase Mr Ahmad’s likelihood of returning to his pre-injury work and social activities.
On 15 August 2024, Dr Wallace re-examined Mr Ahmad at the insurer’s request and provided another report. Dr Wallace diagnosed the right knee condition as being an aggravation of pre-existing degenerative osteoarthritis of the lateral compartment of the right knee. He expressed the following opinion:
Mr Ahmad would not benefit from operative intervention at his right knee as recommended by his treating orthopaedic surgeon Dr Livingston. There is no objective medical evidence that the operation of arthroscopic debridement in the knee with chondroplasty leads to a durable reduction in the level of symptoms or increase in function at the joint over and above ongoing conservative treatment. … The proposed surgical intervention of the right knee is not recommended.
The insurer then requested a supplementary medical report from Dr Wallace. The insurer asked him to provide detailed reasoning for his opinion that Mr Ahmad would not benefit from surgical intervention of the right knee.
In a supplementary report dated 4 October 2024, Dr Wallace provided the following reasons for his opinion that Mr Ahmad would not benefit from operative intervention at the right knee in the form of the proposed arthroscopic debridement at the joint:
1.       At the time of review with Mr Ahmad on 15 August 2024, he noted only mild symptoms at the right knee in the form of prepatellar pain, which is worse with squatting or walking.
2.       He had no evidence of any significant disability at the right knee on clinical examination at that time.
3.       He underwent MRI investigation of the right knee on 5 August 2024 which showed evidence of mild tricompartmental cartilage irregularity but no evidence of significant intra articular structural pathology.
4.       There is no medical literature to support the procedure of chondroplasty of the knee of the treatment of mild to moderate osteoarthritis.
I note in the Cochrane review entitled Surgical Interventions for symptomatic mild to moderate knee osteoarthritis dated 19 July 2019, the authors conclude there is low quality evidence from a few small trials indicating there may not be any benefit of arthroscopic surgery over nonsurgical treatments including saline irrigation and hyaluronic acid injection or any one type of surgery over another.
On 7 November 2024, the insurer declined Dr Livingston’s request for right knee arthroscopy and debridement, stating that the treatment request was not considered reasonable and necessary.
Mr Ahmad applied for internal review of that decision on 1 December 2024.
On 16 December 2024, the internal reviewer affirmed the original decision to decline the request for right knee arthroscopy and debridement. The internal reviewer found that the surgery was not reasonable and necessary in the circumstances.
On the same day, Mr Ahmad emailed the internal reviewer, pointing out that Dr Asher Livingston’s letter of 20 April 2024 did not appear to have been considered in the internal review.
On 17 December 2024, the internal reviewer replied to Mr Ahmad’s email, providing his thoughts about Dr Livingston’s report dated 20 April 2024. The internal reviewer then emailed Mr Ahmad what he described as an “amended and updated internal review decision, taking into account the report of Dr Livingston dated 20.04.24 that was omitted in my previous decision.”
In the revised internal review decision, the internal reviewer accepted that there was “clear evidence the subject accident has led to an aggravation of pre-existing right knee condition.” That is, the internal reviewer was satisfied as to causation. However, the internal reviewer preferred Dr Wallace’s opinion that operative intervention would not benefit Mr Ahmad. He accordingly affirmed the insurer’s original decision to decline the request for right knee arthroscopy and debridement.

Application for review

Mr Ahmad applied to the Tribunal for a review of the internal review decision of 17 December 2024. The parties agreed that the decision of 17 December 2024 should be treated as the operative decision under review.
Both parties filed written submissions and other material on which they wished to rely before the hearing.
A hearing was held on 12 March 2025. Mr Ahmad was self-represented and the insurer was represented by Mr Iliopoulos of Meridian Lawyers.
Mr Iliopoulos objected to various documents on which Mr Ahmad wished to rely on the basis of relevance.[1] The objections to twelve documents were upheld or partially upheld, and the documents were not admitted, subject to the proviso that the tribunal would reconsider that ruling in relation to most of those documents if Mr Ahmad demonstrated that the documents were relevant.[2] He did not do so. The insurer’s objections to other documents were overruled.

Legal framework

[1] Transcript of hearing dated 12 March 2025, page 7, lines 31-33
[2] Transcript of hearing dated 12 March 2025, page 9, lines 38-45; page 14, lines 45-47; page 15, line 21; page 16, lines 33-38; page 27, lines 6-12

Neither party correctly identified the provision under which the reviewable decision was made in the documents and submissions lodged with the tribunal or in the reviewable decision itself. However, at the hearing, Mr Iliopoulos submitted that the decision had been to refuse to pay treatment and care benefits under section 66 of the MAI Act on the basis that the proposed treatment and care was not reasonable or necessary.[3] I accept that that is so.
[3] Transcript of hearing dated 12 March 2025, page 43, lines 46-47
Section 66(1) of the MAI Act provides: “If a relevant insurer accepts liability for defined benefits, the insurer must pay the applicant the defined benefits to which the applicant is entitled.” Treatment and care benefits are a form of defined benefits.[4]
[4] MAI Act, s 33
Section 112(1) of the MAI Act provides, relevantly, that a person injured in a motor accident is entitled to treatment and care benefits for treatment and care expenses.
Section 113 of the MAI Act defines “treatment and care expenses” to mean “expenses incurred by the injured person in providing for the injured person’s treatment and care” but not to include, relevantly, expenses incurred for treatment and care that was not reasonable and necessary.
Section 120 of the MAI Act makes provision for deciding whether treatment and care is reasonable and necessary. It provides:
120 Deciding whether treatment and care is reasonable and necessary
In deciding whether treatment and care for an injured person is reasonable and necessary, the relevant insurer for the motor accident must consider the following:
(a)whether the treatment and care is reasonable and necessary in the circumstances;
(b)whether the treatment and care—
(i)is directly related to the person’s injury; and
(ii)is appropriate for the injury; and
(iii)will benefit the person;
(c)the appropriateness of a provider of the treatment and care;
(d)whether the treatment and care is cost effective;
(e)the MAI guidelines.
The decision not to approve treatment is reviewable by the Tribunal. An insurer’s decision, made under section 66(1) of the MAI Act, not to pay treatment and care benefits for expenses incurred for treatment and care because, relevantly, the treatment and care was not reasonable and necessary is an “ACAT reviewable decision”.[5]
[5] MAI Act s 192, Schedule 1, Part 1.2, item 13
Section 9 of the ACT Civil and Administrative Tribunal Act 2008 provides that a person may apply to the tribunal if an authorising law provides that the application may be made. The MAI Act is such an authorising law.
Mr Ahmad, being an applicant for defined benefits, was entitled to apply to the Tribunal for review of the ACAT reviewable decision “on a question of law or fact”.[6]
[6] MAI Act s 193(1)(a)
Subsections 197(1) to (3) of the MAI Act provide for the Tribunal’s powers on review. Those subsections provide:
197 External review—decision
(1)     In deciding an application for external review of an ACAT reviewable decision, the ACAT must, by order—
(a)affirm the decision; or
(b)amend the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter for reconsideration by the insurer that made the decision (the decision-maker) in accordance with any direction of the ACAT.
(2)     In deciding the application for external review, the ACAT must only consider the information that was available to the decision-maker when the decision was made.
(3)     However, the ACAT may, on application by a party, give the party leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made.
As Presidential Member Robinson observed, after referring to section 197 of the MAI Act and the Explanatory Statement to the Motor Accident Injuries Bill 2019:[7]
Stated briefly, the intention appears to be to encourage the parties to gather all the pertinent information before a decision is made. This is to discourage parties ‘building a case’ for the purposes of the Tribunal hearing, and is consistent with the nature of the review the tribunal is (according to the Explanatory Statement), intended to undertake, which is clearly stated to be a review ‘on questions of law and fact’ only (i.e. ‘only’ a review on questions or law and fact and not a merits review).
[7] Williams v AAI Limited ACN 005 297 807 trading as GIO (Motor Accident Injuries) [2021] ACAT 100 at [50]
To similar effect, Acting Presidential Member Kyprianou commented that “in conducting an external review, the role of the tribunal is to determine whether the reviewable decision is affected by any errors of law or fact”.[8]
[8] Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2022] ACAT 24 at [19]. See also Montgomery and Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2024] ACAT 60 at [21] and Bothe v AAI Limited ACN 005 297 807 trading as GIO (Motor Accident Injuries) [2022] ACAT 12 at [39]
I respectfully agree with the observations of those members.
The Motor Accident Injuries (Treatment and Care) Guidelines 2023 (Treatment and Care Guidelines) commenced on 18 January 2024. They relevantly provide:
6.4 Treatment and care that is considered reasonable and necessary
In deciding whether treatment and care is reasonable and necessary an insurer must consider the factors set out in section 120 of the MAI Act.
…
6.4.2Benefit to the participant
Treatment and care will benefit a person if:
·it will assist the injured person’s recovery or management of the person’s injury;
·it has specific goals, an expected duration and expected outcomes and these are understood and agreed by the injured person;
·it will not cause adverse outcomes or harm to the person;
·there are medical reports or assessments that show the treatment or care will benefit the person; or
·the treatment or care has been provided in the past to the person with positive results or outcomes.
6.4.3 Appropriate for an injury
Treatment and care will be appropriate for an injury if:
·it is based on current clinical practice, evidence-based practice or generally accepted clinical guidelines for the given injury;
·there is good evidence for the efficacy of the treatment over other treatments;
·it will not contradict any treatment and care in the person’s recovery plan.
…
6.4.5 Cost effectiveness
Treatment and care will be cost effective if:
·the short and long term benefits and expected outcomes from the treatment and care have been considered and outweigh the costs;
·there are no other treatment and care options that will achieve comparable outcomes, including any diagnosis options necessary to determine future treatment and care needs; and
·delaying the treatment and care may result in additional treatment and care costs.

Grounds of review

Mr Ahmad provided the following reasons for applying to the Tribunal for review in his application for review:
1.       The internal reviewer made errors and overlooked crucial information during the review process.
2.       Dr Wallace did not conduct a thorough medical examination, resulting in his IME reports not reflecting accurate findings.
3.       I recovered from my previous right knee injury following a successful surgery on August 28, 2015.
4.       After a year of physiotherapy and observation, conservative treatment for the current injury has proved ineffective, leading to the decision to pursue surgical intervention based on Dr Livingston’s recommendation.
5.       NRMA is employing delaying tactics in making decisions on treatment requests and has failed to provide timely treatment and care, which is negatively impacting my physical and psychological well-being.
Mr Ahmad also handed up a much longer list of “Applicant’s questions of law and fact” at the hearing. He said that there was nothing new in it, although on its face it appeared to be different from the list of questions of law and fact in his application. The insurer objected to that document being provided at such a late stage. I indicated that I would limit the questions of law and fact to those raised in the applicant’s application or in his written submissions.[9]

Application of section 66 of MAI Act

[9] Transcript of hearing dated 12 March 2025, page 6, lines 6-9

There is a question as to whether the legislature contemplated that an applicant for defined benefits may apply to the insurer for payment of treatment and care benefits before undergoing treatment, or whether it intended such an application to be made only afterwards.
Section 66(1) of the MAI Act requires the insurer to pay an applicant “the defined benefits to which the applicant is entitled.” A person is entitled to treatment and care benefits “for treatment and care expenses.”[10] “Treatment and care expenses” are “expenses incurred by the injured person in providing for the injured person’s treatment and care”, but the term does not include expenses “incurred for treatment and care” that was not reasonable and necessary or “for which the injured person has not paid and is not liable to pay” (my emphasis).[11]
[10] MAI Act, s 112
[11] MAI Act, s 113
The use of the past tense might suggest that the MAI Act contemplates that an application to the insurer to pay for treatment and care benefits is to be made after the treatment has occurred and the expense has been incurred. That would not be a construction favourable to injured persons, because it would require them to incur treatment and care expenses before knowing whether they will be reimbursed. The language of section 120 of the MAI Act tends to suggest that the assessment of what is reasonable and necessary may be made before treatment has occurred, as it uses the present and future tense (such as whether the treatment and care is reasonable and necessary and whether it will benefit the person) (emphasis added).

As the issue was not raised by the parties, I have assumed that their joint position is correct (that is, that first the insurer and then the tribunal may prospectively assess whether treatment is reasonable and necessary, for the purposes of deciding whether to approve, or confirm the approval of, treatment and care benefits). I note that, even if this is so, it may be that an applicant may also make an application after undergoing the treatment in question, when the question of the efficacy of that treatment (and therefore its reasonableness) may be easier to answer and may be answered differently.

First ground: overlooking information

Mr Ahmad’s first ground of review is that the internal reviewer made errors and overlooked crucial information during the review process.
At the hearing, Mr Ahmad agreed not to press the first ground to the extent that it related to the internal reviewer’s failure to have regard to Dr Livingston’s letter of 20 April 2024, in light of the parties’ agreement that the tribunal would treat the revised internal review decision, made on 17 December 2024, as the reviewable decision.[12] Mr Ahmad also accepted that Dr Livingston’s letter of 20 April 2024 did not contain any new information.[13] However, Mr Ahmad maintained that the internal reviewer had made other errors and overlooked other crucial information during the review process.[14]
[12] Transcript of hearing dated 12 March 2025, page 2, line 43 to page 3, line 32
[13] Transcript of hearing dated 12 March 2025, page 54, lines 27-43
[14] Transcript of hearing dated 12 March 2025, page 3, line 44 to page 4, line 10
Mr Ahmad identified one of the errors as being that Dr Wallace did not look at documents provided by Mr Ahmad to Dr Wallace, including a “statement of evidence” made by Mr Ahmad.[15] That statement of evidence was not before the Tribunal. Mr Ahmad submitted that the reports of the surgeon who undertook his right knee surgery in 2015, Dr Sherif, should have been before Dr Wallace. Mr Ahmad also submitted that the insurer should have asked his treating surgeon for clinical notes.[16]
[15] Transcript of hearing dated 12 March 2025, page 20, line 22 to page 22, line 32
[16] Transcript of hearing dated 12 March 2025, page 22, line 36 to page 23, line 11
Mr Ahmad said that Dr Wallace should have looked at a letter from his workers compensation insurer, which Mr Ahmad had sent him, stating: “As you have confirmed you no longer require medical treatment related to your injury, your claim will be closed on 30/03/2021.” The letter did not identify the nature of the injury in question. Mr Ahmad wished to rely on that letter to demonstrate that his right knee injury was not a pre-existing injury.[17]
[17] Transcript of hearing dated 12 March 2025, page 25, lines 7-10
The insurer submitted that none of the documents which the applicant provided to Dr Wallace was relevant to his opinion with respect to the right knee.[18]
[18] Transcript of hearing dated 12 March 2025, page 40, lines 40-41
There is a question as to whether a doctor’s failure to have regard to information may, in some or in all cases, constitute an error on the part of the internal reviewer where the internal reviewer relies upon the doctor’s opinion. Assuming that it may do so in this case, I am not satisfied that Mr Ahmad has established that Dr Wallace made any material errors.
In relation to the letter from Mr Ahmad’s workers compensation insurer, I accept Mr Iliopoulos’s submission that the letter does not refer to any specific injuries and that it does not express a medical opinion.[19] Further, I accept the insurer’s submission that Dr Wallace was provided with relevant records from the workers compensation insurer.[20] If Dr Wallace did fail to have regard to the letter on which Mr Ahmad relies from the workers compensation insurer, it is not a material error, as the letter could not have realistically affected Dr Wallace’s opinion or the outcome of the internal review. The letter is not probative of anything. It merely establishes that Mr Ahmad told his workers compensation insurer, in early 2021, that he did not require treatment in relation to an unspecified injury.
[19] Transcript of hearing dated 12 March 2025, page 38, lines 1-6
[20] Transcript of hearing dated 12 March 2025, page 38, lines 14-38
Dr Wallace did not refer in his reports to a statement of evidence made by Mr Ahmad. However, Mr Ahmad has not established that Dr Wallace made a material error, which affected the decision of the internal reviewer, in failing to have regard to such a statement of evidence. That is because that statement is not before the Tribunal, so that it is not possible to know what it contained and how that could have affected Dr Wallace’s assessment. I note also that Mr Ahmad apparently had an opportunity to speak to Dr Wallace and tell him about matters contained in the statement. Dr Wallace’s report of 30 October 2023 mentions, albeit briefly, a social history and records matters reported by Mr Ahmad. Accordingly, I am not persuaded that there was any breach of procedural fairness in Dr Wallace failing to refer to (and possibly failing to consider) Mr Ahmad’s statement of evidence.
As the insurer pointed out,[21] Dr Sherif’s reports were contained in the material it put before the tribunal and were provided to Dr Wallace. I do not accept Mr Ahmad’s submission that Dr Sherif’s reports were not available to Dr Wallace during his assessment.
[21] Transcript of hearing dated 12 March 2025, page 38, lines 42-46: page 49, lines 18-22. See also insurer’s written submissions filed on 6 March 2025 at [48]
The insurer is not under an obligation to ask an applicant’s doctors for clinical notes, although that may often be good practice. The insurer submits, in this case, that it did provide Dr Wallace with the clinical notes of Mr Ahmad’s general practitioner at the time of the 2015 injury.[22]
[22] Transcript of hearing dated 12 March 2025, page 38, lines 36-38
An insurer should, as a matter of procedural fairness, give the applicant an opportunity to provide documents on which the applicant wishes to rely to an assessing practitioner, and to the internal reviewer. Mr Ahmad did not assert that he was not given such an opportunity.
For these reasons, Mr Ahmad’s first ground fails.

Grounds 2 and 3: No thorough medical examination and recovery from earlier injury

Grounds 2 and 3 are related. They are that Dr Wallace did not conduct a thorough medical examination and that (contrary to Dr Wallace’s finding) Mr Ahmad had recovered from his earlier right knee injury at the time of the motor vehicle accident.
Mr Ahmad made a number of submissions in support of these grounds.
In Mr Ahmad’s written submissions, he said he had not required any further surgical intervention after a successful right knee surgery on 28 August 2015, up until the motor vehicle accident. He also said that since being cleared for pre-injury duties in 2020, he had not reported any knee-related complaints to his doctors. These submissions were made in support of his position that he was fully recovered from the earlier knee injury at the time of the motor vehicle accident.
Mr Ahmad also submitted that the insurer did not ask Dr Wallace the questions which the insurer asked Mr Ahmad’s treating doctor.[23] Mr Ahmad referred to a letter the insurer sent Dr Livingston on 17 April 2024, asking a number of questions, including what clinical examination findings and orthopaedic tests the doctor had performed to support the right knee arthroscopy request made on 12 April 2024. Mr Ahmad said that there was no equivalent question in the letter of instructions to Dr Wallace.[24] This was said to constitute an unfairness or an error.
[23] Transcript of hearing dated 12 March 2025, page 27, lines 40-42
[24] Transcript of hearing dated 12 March 2025, page 28, lines 18-27
Mr Ahmad referred to Dr Wallace’s report of 15 August 2024, where Dr Wallace mentioned an MRI investigation of the right knee conducted on 5 August 2024, and commented: “This shows mild cartilage irregularity … There is mild joint effusion.” Mr Ahmad submitted that Dr Wallace had “taken just one comment from the MRI to support his opinion.” He submitted: “one of the reasons I believe asking for knee arthroscopy by Dr Livingston is that MRI is not picking up 100 per cent.”[25] Mr Ahmad said that Dr Wallace should have looked at earlier MRIs showing significant problems. Mr Ahmad submitted:[26]
But what I'm trying to say is Dr Wallace is not doing his examination properly because, one reason, insurance is not asking him the right question. He is just limiting his findings to those what they are asking for and making his opinion just obviously what he has maintain his position.
[25] Transcript of hearing dated 12 March 2025, page 30, lines 21-27
[26] Transcript of hearing dated12 March 2025, page 31, lines 1-5
Mr Ahmad submitted that the insurer should have asked Dr Wallace: “whether the difference of opinion regarding right knee treatment between Dr Wallace and Dr Livingston is due to an error in Dr Wallace's reports and his examination.”[27]
[27] Transcript of hearing dated 12 March 2025, page 31, lines 36-38
Mr Ahmad contended that the research Dr Wallace relied upon “does not cover the trauma” because it was not concerned with accident-related injuries.[28]
[28] Transcript of hearing dated 12 March 2025, page 33, lines 28-31
Mr Ahmad also submitted that the insurer could not deny reasonable and necessary treatment when it accepted that the condition was partially caused by the accident.[29] That was in circumstances where physiotherapy, paid for by the insurer, had not worked.
[29] Transcript of hearing dated 12 March 2025, page 34, lines 36-40
These submissions go beyond the alleged errors of law and fact identified in Mr Ahmad’s application. However, they can be dealt with briefly.
It was open to Dr Wallace to conclude, on the basis of an MRI investigation, that Mr Ahmad suffered from mild cartilage irregularity and mild joint effusion. Mr Ahmad’s submission that Dr Wallace should have put more weight on an earlier MRI effectively invites the Tribunal to substitute its opinion on a medical matter for that of Dr Wallace. Mr Ahmad has not established any error of law or fact on Dr Wallace’s part.
Even if Dr Wallace made an error, I am not persuaded that it affected the outcome. Dr Wallace accepted that Mr Ahmad’s pre-existing injury was exacerbated by the accident. His main reason for his opinion that Mr Ahmad would not benefit from operative intervention at the right knee was that there was no medical literature to support the procedure of chondroplasty of the knee of the treatment of mild to moderate osteoarthritis. That is, the reasons why he did not support the proposed treatment did not relate to any view that Mr Ahmad had a pre-existing injury.
Mr Ahmad’s submission that the insurer’s questions of Dr Wallace, in its briefing letters, were inadequate must also be rejected. The issue before the Tribunal is whether the internal reviewer erred when making the internal review decision, including by relying upon Dr Wallace’s reports. There is nothing in the questions asked of Dr Wallace which renders his reports unreliable.
Mr Ahmad’s criticisms of Dr Wallace’s reliance upon certain medical literature do not establish error. As Mr Iliopoulos submitted,[30] Mr Ahmad has not provided any expert evidence to the effect that that medical literature should not have been relied upon in his circumstances. Dr Wallace was entitled to rely upon the medical literature to which he referred, and the internal reviewer was entitled to rely upon Dr Wallace’s opinion.
[30] Transcript of hearing dated 12 March 2025, page 41, lines 14-22
For these reasons, grounds 2 and 3 are dismissed.

Ground 4: Conservative treatment ineffective

Ground 4 is that, after a year of physiotherapy and observation, conservative treatment for the injury had proved ineffective. That ground does not, on its terms, identify any error. However, I take Mr Ahmad to mean by this ground that the internal reviewer should have preferred Dr Livingston’s opinion that surgery was needed, because conservative treatment was not working.
Contrary to Mr Ahmad’s submission, the failure of conservative treatment does not necessarily mean that surgery will be effective. Dr Wallace’s opinion that surgery was not supported by the medical literature is not inconsistent with conservative treatment also being ineffective. It is possible that neither would assist.
Mr Ahmad has not identified an error of law or fact affecting the internal review decision.
Accordingly, Ground 4 is rejected.

Ground 5: Delaying tactics

Mr Ahmad complained about the delay in making the decision, being a period of about nine months from the request for treatment.
The delay is not wholly unexplained. The insurer was waiting for a response to questions it had asked Dr Livingston, which it did not receive. It also asked for, and received, further reports from Dr Wallace during this period.
It is, of course, important that insurers make timely decisions wherever possible. However, I am not persuaded that the delay in this case rendered the decision which was made erroneous. Mr Ahmad has not explained how he says that it did.

Failure to act in good faith

Mr Ahmad did not identify the insurer’s failure to act in good faith as a ground in his application. However, in his written submissions he claimed that the insurer had:
…not acted in good faith through the following actions:
(a)     Reversing the approval for knee surgery to evade liability;
(b)     Making unnecessary requests for additional documents despite having adequate information;
(c)     Providing incomplete records to Dr Wallace for the IME assessment;
(d)     Failing to give clear and timely responses to my inquiries and requests, including those directed to the CTP customer resolution team;
(e)     Delaying a decision on my right knee surgery request for nearly nine months, causing a failure to provide timely treatment and care;
(f)      Conducting an internal review without properly considering all provided evidence;
(g)     Neglecting to address the concerns I raised in the internal review application;
(h)     Instead of providing funds for a clearly necessary and reasonable treatment, the respondent is wasting money on repeated IME assessments and legal processes.
Mr Ahmad submitted again at the hearing that the insurer had not acted in good faith. However, in light of the comments I made about a similar lack of good faith ground which he advanced in Ahmad v Insurance Australia Ltd T/As NRMA [2025] ACAT 11, Mr Ahmad said he would not elaborate on that submission orally.[31]
[31] Transcript of hearing dated 12 March 2025, page 36, lines 23-27
The insurer and the applicant for defined benefits are both subject to a duty to act in good faith in relation to an application for defined benefits and must endeavour to finalise the application as justly and promptly as possible.[32] As I observed in Ahmad v Insurance Australia Ltd T/As NRMA [2025] ACAT 11 at [177], when the Tribunal is conducting a review of a reviewable decision to determine whether the decision was affected by error, it is not conducting a general investigation into the probity of the insurer’s conduct. It does not have jurisdiction to examine, generally, whether the insurer acted in good faith when dealing with the applicant’s defined benefits application.
[32] MAI Act s 20(2)
The issues raised by Mr Ahmad under this ground of lack of good faith do not establish that the reviewable decision was affected by an error of law or fact. This ground is dismissed.

Submission based upon precedent

Mr Ahmad relied upon a decision of the NSW Personal Injury Commission in Insurance Australia Limited t/as NRMA Insurance v Hines [2024] NSWPICMP 494 (Hines). In that case, the Commission found that a proposed knee replacement for a Ms Hines was reasonable and necessary where a motor vehicle accident had materially contributed to Ms Hines’ knee symptomology, which rendered the ongoing continuation of conservative osteoarthritis treatment options inappropriate.
Whilst Mr Ahmad referred to Hines as a “precedent,” the internal reviewer was obliged to have regard to the material before him and not to decisions made in other cases. Needless to say, that material was different from the material available in the Hines case.
The New South Wales legislative scheme is significantly different from that in the Australian Capital Territory. Further, under the MAI Act, each application for defined benefits is to be decided upon the material available to the decision-maker.
For these reasons, there is no error in the internal reviewer coming to a different decision from that made by the Personal Injury Commission in Hines.

Procedural fairness

Mr Ahmad made submissions at the hearing that the insurer had failed to provide him with procedural fairness because it had asked Dr Wallace to provide a supplementary report, on the papers, without informing him first.
The question asked of Dr Wallace in respect of the supplementary report was: “We ask that you please provide detailed reasoning for your opinion [that Mr Ahmad would not benefit from surgical intervention of the right knee] including any medical literature/research/journals in support.”
I do not consider that it was a breach of procedural fairness for the insurer to request clarification of an opinion expressed in the principal report, in those terms, without first consulting with Mr Ahmad. Mr Ahmad had an opportunity to provide Dr Wallace with any documents on which he wished to rely before the principal report. It was not necessary, as a matter of fairness, to give him another opportunity when the insurer was merely requesting Dr Wallace to clarify the basis of his opinion. It may have been different if, for example, the insurer had asked Dr Wallace to comment on a particular document, not disclosed to Mr Ahmad. However, that is not what occurred.

Conclusion

As Mr Ahmad has not persuaded me that the insurer’s decision was affected by any error of law or fact, I have decided to affirm its decision.
………………………………..

Presidential Member J Lucy

Date of hearing:	12 March 2025
Applicant:	In person
Solicitors for the Respondent:	Meridian Lawyers