Ahmad v Insurance Australia Ltd T/As NRMA (Motor Accident Injuries)
[2025] ACAT 11
•26 February 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
AHMAD v INSURANCE AUSTRALIA LTD T/AS NRMA (Motor Accident Injuries) [2025] ACAT 11
MAI 2/2024
Catchwords: MOTOR ACCIDENT INJURIES – Where applicant applied to respondent insurer for approval of treatment and care – Where parties applied for leave to present information and evidence which was not reasonably available to the insurer at the time of the reviewable decision under section 197(3) of the Motor Accident Injuries Act 2019 – Meaning of “not reasonably available to the decision-maker”
Where insurer obtained expert report to decide whether to pay treatment and care benefits for injury to applicant’s tooth 16 – where insurer did not provide all relevant material to expert or give applicant an opportunity to make representations to expert – whether denial of procedural fairness for insurer to rely upon report to deny benefits – whether denial of procedural fairness was cured by providing relevant material to expert, arranging for a consultation between the expert and the applicant and seeking a further report
Where health practitioners could not exclude the possibility that the motor vehicle accident contributed to the applicant’s injury – Where insurer’s expert recommended that insurer obtain specialist opinion as to causation - Whether insurer was obliged to obtain further evidence before rejecting the applicant’s application for approval of treatment on the basis that the injury was not caused by the accident
Legislation cited: Motor Accident Injuries Act 2019, ss 6(c) and (d), 14, 20, 66, 110, 112, 113, 120, 121, 123, 138, 126, 187, 188, 190, 191, 192, 193, 197, 487, Dictionary
Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 12(1)(c)
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318
Legislation Act 2001, ss 127, 142
Subordinate
Legislation cited: Motor Accident Injuries (Treatment and Care) Guidelines 2021 (repealed), clause 3.2.1
Motor Accident Injuries (Treatment and Care) Guidelines 2023, clauses 3.2.1, 6.4.1
Motor Accident Injuries (Internal Review) Guidelines 2019 (repealed), clause 4.4.1
Motor Accident Injuries (Internal Review) Guidelines 2022, clause 4.4.1
Motor Accident Injuries Bill 2019
Cases cited:Above All Air Co Pty Ltd v Dandan Automotive Pty Ltd [2021] NSWCATAP 371
Andriotis v Victorian Building Authority [2018] FCAFC 24
Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111
Bothe v AAI Limited ACN 005 297 807 trading as GIO (Motor Accident Injuries) [2022] ACAT 12
Chapman v McLaughin [2016] NSWCATAP 212
Hill v The Council of the Law Society of the ACT [2020] ACTCA 3
Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138
Jav Automotive Pty Ltd v Livermoore [2025] NSWCATAP 12
Ljubicic v Heat and Control Pty Ltd [2023] NSWSC 982
Montgomery and Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2024] ACAT 60
My Fashion Republic Pty Ltd t/as Cosette v Pennisi [2024] NSWCATAP 187
Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA Insurance (Motor Accident Injuries) [2021] ACAT 83
Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2022] ACAT 24
Skinner v The State of New South Wales [2021] NSWDC 36
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
QBE Insurance (Australia) Ltd v Meredith [2017] NSWSC 466
Williams v AAI Limited ACN 005 297 807 trading as GIO (Motor Accident Injuries) [2021] ACAT 100
Tribunal:Presidential Member Dr J Lucy
Date of Orders: 26 February 2025
Date of Reasons for Decision: 26 February 2025
Date of Publication: 6 March 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 2/2024
BETWEEN:
ANWAR AHMAD
Applicant
AND:
INSURANCE AUSTRALIA LTD ACN 000 016 722 T/AS NRMA
Respondent
TRIBUNAL:Presidential Member Dr J Lucy
DATE:26 February 2025
ORDER
The Tribunal orders that:
The respondent’s decision of 3 May 2024 not pay treatment and care benefits for the proposed treatment to the applicant’s tooth 16 is set aside.
The matter is remitted to the respondent for reconsideration in accordance with the following directions:
(a)Before determining the applicant’s application, the respondent is to:
(i)consult with the applicant within 7 days of the date of these orders as to:
1.whether it should arrange for an internal investigation of tooth 16 or obtain the opinion of a specialist prosthodontist; and
2.the documentation which should be provided to the relevant practitioner;
(ii)take into account the applicant’s submissions or representations in deciding which course of action to take and what documents to provide to the practitioner;
(iii)having done so, within 14 days of the date of these orders, make arrangements for:
1.an appropriately qualified health practitioner to conduct an internal investigation of tooth 16 for the purpose of the practitioner providing an opinion as to whether the motor vehicle accident caused, contributed to or exacerbated the injury to tooth 16; or
2.a specialist prosthodontist to provide an opinion as to whether the motor vehicle accident caused, contributed to or exacerbated the injury to tooth 16.
(b)The respondent is to make another decision as to whether to pay the treatment and care benefits the subject of the applicant’s application, and provide that decision to the applicant, within 10 days of receiving the report from an appropriately qualified health practitioner or from a specialist prosthodontist.
(c)If the respondent reaches an agreement in writing with the applicant as to the decision to be made in respect of the applicant’s application for treatment and care benefits, the respondent is to make and implement that decision, and from the date of the written agreement, the respondent is not required to comply with the directions above.
………………………………..
Presidential Member Dr J Lucy
REASONS FOR DECISION
Introduction
The applicant, Mr Ahmad, 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), apparently accepted liability under the Motor Accident Injuries Act 2019 (MAI Act).
Mr Ahmad had undergone root canal treatment on his top right back tooth (tooth 16) shortly before the accident. The insurer declined the applicant’s request for approval for dental treatment on tooth 16 on the basis that the dental treatment was not causally related to the accident.
Mr Ahmad applied to the Tribunal for a review of the insurer’s decision not to pay for the dental treatment.
I have decided that the insurer erred when determining that the accident did not cause or contribute to Mr Ahmad’s tooth injury. That is because the expert reports it relied upon indicated that there was a need for further investigation before the accident could be excluded as a cause of the tooth injury. The insurer failed to obtain the additional evidence needed to make an informed decision. Accordingly, I have set aside the insurer’s decision and remitted the matter for reconsideration by the insurer in accordance with the Tribunal’s directions.
Background
In February 2023, Mr Ahmad had root canal therapy on his tooth 16 in Pakistan. The dentist who performed the treatment was Dr Saad Naveed. The treatment was performed over the course of six appointments.
Mr Ahmad returned to Australia and was injured shortly afterwards, 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 7 August 2023, Mr Ahmad’s new dentist, Dr Amber Halstead, emailed the insurer. In the correspondence, she stated that Mr Ahmad’s tooth 16 “is tender to percussion”. She informed the insurer that Mr Ahmad reported that this started after the motor vehicle accident and that it was consistent with trauma to his face, which Mr Ahmad said occurred as his face hit the steering wheel. Dr Halstead stated that radiographic analysis of tooth quadrant one showed tooth 16 had root fracture and was not restorable, such that it required extraction.[1]
[1] Email dated 7 August 2023 from Dr Amber Halstead to [email protected], pages 23-24 of the respondent’s materials filed on 1 October 2024.
Dr Halstead referred Mr Ahmad to Dr Clarence Da Cruz, a periodontist. On 7 September 2023, after Mr Ahmad attended on Dr Da Cruz, Dr Da Cruz diagnosed Mr Ahmad with “an [sic] 16 infected canal with previous root canal therapy and symptomatic apical periodontitis”. Dr Da Cruz also recommended that Mr Ahmad obtain a second opinion from an endodontist about a possible fracture of tooth 16.[2]
[2] Letter dated 7 September 2023 from Dr Da Cruz to Dr Halstead, pages 25-26 of the respondent’s materials filed on 1 October 2024.
On 14 September 2023, Dr Halstead wrote to the insurer, stating that Mr Ahmad had seen the periodontist, Dr Da Cruz, and Dr Da Cruz was not convinced that tooth 16 had a fracture and was unrestorable and would like an opinion from specialist endodontist. She stated that she had referred Mr Ahmad to Dr Bobby Patel, endodontist, for assessment.[3]
[3] Letter dated 14 September 2023 from Dr Amber Halstead to [email protected], page 28 of the respondent’s materials filed on 1 October 2024.
On 7 November 2023, Dr Patel took a FOV (Field of visualisation) CBCT (Cone Beam Computed Tomography) scan of tooth 16. He stated in a letter of the same day to Dr Halstead:[4]
No signs of vertical root fracture were seen but I cannot exclude this from this examination alone.
The following provisional diagnoses were made:1. Failed RCT 16
2. Chronic apical periodontitis 16
3. Pulp canal obliteration 16 moderate.
[4] Letter from Dr Bobby Patel to Dr Amber Halstead dated 7 November 2023, pages 32-33 of the respondent’s materials filed on 1 October 2024.
Dr Patel recommended treatment including “root canal retreatment 16” or alternatively extraction of tooth 16 with prosthodontics replacement.
The insurer was provided with Dr Patel’s report and treated it as a request made on behalf of Mr Ahmad for dental treatment. It wrote to Dr Patel on 21 November 2023 with a series of questions it asked him to answer.
On 5 December 2023, Dr Patel wrote to the insurer, providing responses to questions the insurer had asked, including questions about his provisional diagnosis of failed root canal therapy.[5] Dr Patel expressed the view that an internal assessment of the tooth would be needed to determine whether there was a fracture in the tooth caused by the motor vehicle accident. He stated, in response to the question of whether the proposed treatment plan would have been required regardless of the motor vehicle accident:
Only if the patient was experiencing symptoms such as pain. A technically deficient root canal treatment in the absence of signs and symptoms of apical periodontitis does not warrant further investigations unless a new crown was planned to be placed.
[5] Letter from Dr Patel to the insurer dated 5 December 2023, page 15 of the applicant’s materials filed on 28 May 2024.
In response to the question asking him to what extent the motor vehicle accident contributed to Dr Patel’s provisional diagnoses of chronic apical periodontitis and pulp canal obliteration, Dr Patel stated:
The patient reports all his symptoms of pain started after the MVA. The MVA could result in TMJ issues and jaw pain causing referred pain to the area. The MVA could result in tooth fractures contributing to pain.
The insurer had also asked Dr Patel whether the development of the conditions of chronic apical periodontitis and pulp canal obliteration was as a result of the failed root canal treatment or pre-existing dental conditions; or whether they developed as a result of facial trauma after the accident. Dr Patel responded:
It is difficult to ascertain the exact cause of his pain at this stage. To rule out jaw pain exclusively related to the MVA then the current root canal treatment needs to be addressed. Only after initial treatment and reviewing the patient can you say with more confidence what was causing what.
On 1 March 2024, the insurer wrote to Mr Ahmad stating that it had made an appointment for him to be examined by a dentist, Dr Short.[6] The Tribunal has not been provided with Mr Ahmad’s response, but on 14 March 2024, the insurer emailed Mr Ahmad stating that the insurer had “considered [his] concerns” and cancelled the appointment with Dr Short. It stated that Mr Ahmad would need to travel to Sydney for an in person examination or that the insurer could request an IME (that is, an independent medical examination) via a paper file review. The insurer stated that it had been able to have Mr Ahmad’s medical records reviewed by an IME (an independent medical examiner) without a physical examination.[7]
[6] Letter from NRMA Insurance to the applicant dated 1 March 2024, page 40 of the applicant’s materials filed on 28 May 2024.
[7] Email from NRMA Insurance to the applicant dated 14 March 2024, page 42 of the applicant’s materials filed on 28 May 2024.
On 15 March 2024, Mr Ahmad emailed the insurer stating that he had never refused to attend the appointment with Dr Short but had rather expressed his concerns about unnecessary delays in approving dental treatment.[8] On 22 March 2024, the insurer explained in an email to Mr Ahmad that the existing reports were insufficient to advise of an outcome on his request for further treatment, so that an IME (independent medical examination) was arranged. It said that the paperwork had been sent to Dr Paul Nichols that day.[9]
[8] Email from the applicant to NRMA Insurance dated 15 March 2024, page 44 of the applicant’s materials filed on 28 May 2024.
[9] Email from NRMA Insurance to the applicant dated 22 March 2024, page 45 of the applicant’s materials filed on 28 May 2024.
Dr Paul Nichols, dental surgeon, provided what the insurer described as an independent medical opinion to the insurer in a report dated 28 March 2024.[10] Dr Nichols had not seen Mr Ahmad before writing his report, but provided his opinions on the basis of the documents provided to him by the insurer. It does not appear, from the material provided to the Tribunal, that the insurer gave Mr Ahmad an opportunity to provide any information to Dr Nichols (such as a written account of what happened in the accident), or that the insurer asked Mr Ahmad what documents or health records he wanted the insurer to provide to Dr Nichols.
[10] Medico-legal report of Dr Paul Nichols, 28 March 2024, pages 36-42 of the respondent’s materials filed on 1 October 2024.
At the beginning of the report, Dr Nichols summarised the documentation reviewed for the purpose of the report. He stated in his report that there were no incident/injury, ambulance, or hospital reports, records, x-rays or notes, there were no reports from the dentist who treated tooth 16 before the motor vehicle accident, nor any pre-accident dental records or x-rays. He also stated: “There was no report from the Periodontist (Dr Halstead report).” It is apparent from the documents he referred to under the heading “Document Review,” that he was provided with Dr Halstead’s report of 14 September 2023, Dr Patel’s report of 7 November 2023 and Dr Patel’s letter to the insurer of 5 December 2023. There is no indication that any other documents were provided to Dr Nichols.
Dr Nichols examined the x-ray which he said was provided by Dr Patel and expressed the view that “the average well-trained GP dentist and specialist endodontist would declare the RCT unsuccessful and plan to re-do the treatment. They would also opine that the need for retreatment is unrelated to the MVA”.[11]
[11] Medico-legal report of Dr Paul Nichols, 28 March 2024, page 37 of the respondent’s materials filed on 1 October 2024.
At the end of his report, under the heading “Recommendations”, Dr Nichols stated:
If my opinions are disputed then Anwaar should be referred to the Head of the Department of Endodontics, Dental Faculty, University of Sydney, for assessment and adjudication. The Professor will, of course, require a full fascicle of dental records and x-rays (especially including pre-MVA).
If more definitive comment is required from me, then I request to be provided with a full fascicle of dental records and x-rays (especially including pre-MVA).
On 11 April 2024, the insurer wrote to Mr Ahmad informing him that “we are unable to support payment for [the proposed dental] treatment because the treatment request is not considered Reasonable and Necessary”.[12] The insurer stated that the decision was based on the report of Dr Nichols dated 28 March 2024. It invited Mr Ahmad to review the information about how the decision was made and to provide “us with any information that we might have missed”.
[12] Letter from respondent to applicant dated 11 April 2024, in Respondent’s materials filed on 1 October 2024, pages 43-48.
On 18 April 2024, Mr Ahmad applied for internal review of the insurer’s decision to refuse treatment.[13] The reasons he gave as to why he believed the decision should be changed included that the insurer did not provide all relevant reports to Dr Nichols and that Dr Nichols recommended a physical examination in his report (which was not offered to Mr Ahmad).
[13] Applicant’s “Supporting Documents for External Review Application Tooth 16 Treatment”, filed 28 May 2024, pages 47-49.
The internal review application form contained the following question:
Do you want to provide any further information to support your application? If so, please write the details below or attach any additional documents that you would like considered as part of the internal review.
In response to this question, Mr Ahmad provided a list of documents which he wished to be considered as part of the internal review. The documents included Dr Da Cruz’s letter of 7 September 2023, Dr Patel’s letters of 7 November 2023 and 5 December 2023 and Dr Saad Naveed’s letter of 18 April 2024. It is not clear from the documents provided to the tribunal whether Mr Ahmad also provided the internal reviewer with a copy of those documents.
On 18 April 2024, Dr Naveed, the dentist who performed the root canal therapy in early 2023, wrote to the insurer at Mr Ahmad’s request. In that letter, Dr Naveed provided details of the root canal therapy on tooth 16 in early 2023, “as per clinical notes”. Dr Naveed also stated:
X-Ray Records:
Regrettably, we’ve experienced a workplace incident resulting in the loss of a significant portion of our patient clinical records, particularly the x-ray records and unable to supply x-ray records for this treatment.
Dr Naveed described the course of the treatment over six appointments, with “RCT treatment” initiated on the first appointment. He stated that the applicant did not report any jaw-related pain during the treatment. Dr Naveed said that based upon his telephone conversation with Mr Ahmad and shared dashcam footage, Mr Ahmad “was involved in a high-impact Motor Vehicle Accident, which led to substantial injuries and findings specially discomfort around tooth 16 area, tongue bitting [sic], temporomandibular joint and jaw pain issues, tooth 27 broken edge”. Dr Naveed noted that Mr Ahmad stated that all of his symptoms emerged after the accident. Dr Naveed expressed the opinion that “Mr Anwar’s current dental concerns including tooth 16 are likely stemming from trauma sustained in the motor vehicle accident”.[14]
[14] Report of Dr Saad Naveed, in Respondent’s materials filed on 1 October 2024, pages 49-50.
The decision to refuse dental treatment was affirmed on internal review on 3 May 2024.[15] The internal reviewer found that the problems with tooth 16 stemmed from inadequate root canal therapy performed on the tooth before the accident, and that the motor vehicle accident had not caused any injury to the tooth. The internal reviewer stated that she had had regard to a number of documents, including Dr Da Cruz’s report of 7 September 2023, Dr Naveed’s letter of 18 April 2024, Dr Patel’s letters of 7 November 2023 and 5 December 2023 and Dr Nichols’ report of 28 March 2024.
[15] Letter from insurer to Mr Ahmad dated 3 May 2024 in Respondent’s materials filed on 1 October 2024, page 1.
Evidence of the events which occurred after the internal review is the subject of applications made by the parties for leave to admit additional information or evidence. However, it is useful to set out what occurred after the internal review, before deciding whether leave should be granted to present the additional information or evidence.
On 14 May 2024, Mr Ahmad provided the insurer with a further letter from Dr Halstead dated 13 May 2024 and asked the insurer to reconsider its internal review decision. In her letter of 13 May 2024, Dr Halstead stated:
I am writing to advise that I was not asked at any stage to provide records or radiographs from my initial appointment with Mr Ahmad, or a copy of the report from Dr De [sic: Da] Cruz (periodontist) for Dr Paul Nicolls [sic] file review and report. I am not sure how Dr Nicolls [sic] could provide a comprehensive report without this information.
…
As the tooth had been settled and pain free prior to the MVA I don’t think it unreasonable to deduce that indeed the MVA has in some part played a part in causing failure of the RCT, Either through fracture of the root, which has been noted by Dr Patel that this cannot be known for sure unless internal investigation of the tooth is completed. Or through occlusal trauma from bruxism began post MVA, as according to Dr Naveed there were no signs of jaw related pain during the appointments he had in Jan/Feb 2023.
It is known that occlusal trauma even in the absence of root fracture can cause root canal treatment failure.
On 24 May 2024, the applicant applied to the tribunal for review of the insurer’s decision to refuse to approve the dental treatment on tooth 16.
On 27 May 2024, the insurer indicated, in correspondence to Mr Ahmad, that it was prepared to reconsider the internal review decision, having received Dr Halstead’s letter of 13 May 2024, on the condition that Mr Ahmad provided it with further documents.
On 16 July 2024, Dr Lisa Liu, dental clinician, of TMJ Clinics, wrote to Dr Halstead concerning an initial assessment that day of Mr Ahmad’s “TMJs” (referring, presumably, to Mr Ahmad’s Temporomandibular joint). Dr Liu identified issues with jaw pain, jaw joint clicking and reduced mouth opening. The letter did not refer to tooth 16. Dr Liu recommended some treatment for the issues identified.
Dr Liu’s letter was provided to the insurer.
At some point around this time, the insurer arranged for Mr Ahmad to have an in person consultation with Dr Nichols, for the purpose of Dr Nichols writing a further report.
On 19 August 2024, the insurer wrote a letter of instruction to Dr Nichols. The letter stated that, following Dr Nichols’ report of 28 March 2024, the insurer had obtained Mr Ahmad’s dental records for Dr Nichols’ further opinion with respect to his request for treatment of tooth 16. The insurer provided Dr Nichols with documents including Dr Halstead’s letter of 13 May 2024, Dr Liu’s letter of 16 July 2024 and some clinical records relating to Mr Ahmad.
In the letter of instructions, the insurer asked Dr Nichols to assess Mr Ahmad’s tooth 16 and jaw and provide his opinion as to causation and reasonableness of the treatment as recommended by Dr Patel and TMJ Clinics. One of the questions asked of Dr Nichols in the letter of instruction was whether Mr Ahmad required any treatment to his tooth 16.
On 23 August 2024, according to the insurer’s submissions and Mr Ahmad’s timeline, Mr Ahmad was assessed in person by Dr Nichols.
Dr Nichols provided a second report dated 28 August 2024, in which he expressed the view that the need for treatment of tooth 16 was not related to the motor vehicle accident. Dr Nichols acknowledged having received Dr Naveed’s report of 18 April 2024, but stated that he did not have the report from Dr Da Cruz.
The insurer then sought a supplementary report from Dr Nichols, on the basis that Dr Nichols had not answered all of the questions asked of him in its letter of instructions.[16]
[16] Transcript of hearing dated 24 October 2024, page 21, lines 38-40
Dr Nichols provided a supplementary report on 6 September 2024 in which he answered questions the insurer asked him about causation and other matters, and in which he listed the documents he had reviewed, which included Dr Da Cruz’s clinical records and the clinical records of Hawker Dental (Dr Halstead’s dental surgery). Dr Nichols recorded that Mr Ahmad had told him that “there was no facial trauma” in the accident, “but there was ‘violent occlusion’ a ‘coming together of the teeth’, and whiplash”.
Dr Nichols stated in that report that he had not changed his opinion as to diagnosis of tooth 16 from his previous report and that he agreed with Dr Patel that the root canal therapy had failed. He commented that the x-ray supported this conclusion. This is presumably a reference to the “x-ray provided by Dr Patel,” to which Dr Nichols referred earlier in his report. As to the question of causation of the injuries to and/or conditions of tooth 16, Dr Nichols wrote:
As regards tooth 16, there is no doubt the development and need for treatment was overwhelmingly iatrogenic (inadequate previous treatment). It is possible (unlikely) that the MVA aggravated the condition. Specialist to opine.
As Dr Nichols had referred to the need for an opinion of a specialist prosthodontist in his responses to the previous two questions, it may be inferred that, by “Specialist to opine”, he meant that the insurer should seek an opinion of a specialist prosthodontist about causation.
Legal framework
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. The applicant identified the relevant sections of the MAI Act as being ss 110 and 120. Section 110 defines the term “treatment and care” and section 120 provides for the matters which an insurer must consider when deciding whether treatment and care for an injured person is reasonable and necessary. Neither provision confers any power upon the insurer.
I infer that the insurer refused to pay treatment and care benefits under s 66 of the MAI Act on the basis that the proposed treatment and care was not reasonable or necessary and/or did not relate to personal injury sustained in motor accident.
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.
It is possible, but less likely, that Mr Ahmad applied to the insurer under s 126 of the MAI Act for approval to undergo treatment and care that is not mentioned in his recovery plan and the insurer refused to provide such approval. If that is so, neither party has provided the Tribunal with Mr Ahmad’s recovery plan.
In either case, 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 or the treatment and care did not relate to the personal injury sustained in motor accident is an “ACAT reviewable decision”.[17] Similarly, an insurer’s decision, made under section 126(2) of the MAI Act, to refuse to approve treatment and care which is not mentioned in injured person’s recovery plan, is an “ACAT reviewable decision”.[18]
[17] MAI Act s 192, Schedule 1, Part 1.2, item 13
[18] MAI Act s 192, Schedule 1, Part 1.2, item 27
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”.[19]
[19] 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 s 197 of the MAI Act and the Explanatory Statement to the Motor Accident Injuries Bill 2019:[20]
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).
[20] 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”.[21]
[21] 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.
Questions of law or fact
The tribunal’s application form contains a question asking the applicant to describe the questions of law or fact in the insurer’s decision. The applicant gave a very long response to that question which did not clearly identify the relevant questions of law or fact the subject of his application for review.
At the hearing, I sought to clarify with Mr Ahmad the questions of law or fact which he wished to raise. Referring to the insurer, Mr Ahmad said that “[t]hey haven’t presented to the IME doctor, you know, everything”.[22] “IME” is an abbreviation for independent medical examination or independent medical examiner. The insurer used this term to describe the persons from whom it sought assessments (Dr Short and Dr Nichols). The term “independent medical examiner” or “IME” is defined in the MAI Act to mean a doctor who, under an arrangement with an authorised IME provider, conducts medical examinations for WPI assessments and SOI assessments.[23] I note that the performance of assessments is not the function of an independent medical examiner.
[22] Transcript of hearing dated 24 October 2024, page 3, lines 28-29
[23] MAI Act s 14
The following exchange took place at the hearing:[24]
PRESIDENTIAL MEMBER: So you’re saying one of the questions is whether enough information - what is it? Just have another go at framing the question. Is it whether the right information was given to the IME, I'm not sure what you're - - -
MR AHMAD: Yes. They have taken - for the refusal, they have Dr Paul Nichols’ report, that's on 28 March.
PRESIDENTIAL MEMBER: Yes.
MR AHMAD: And Dr Paul’s report is clearly saying that they have not provided Dr Amber Halstead's my dentist's records to that - to Dr Paul.
PRESIDENTIAL MEMBER: All right. So whether sufficient information was provided to the IME, is that right? Is that the - - -
MR AHMAD: Yes. Yes.
PRESIDENTIAL MEMBER: So you say your dentist's records weren't provided.
MR AHMAD: Yes. That's clear on the report.
[24] Transcript of hearing dated 24 October 2024, page 3, line 37 to page 4, line 12
Having heard from Mr Ahmad as to the questions of law or fact which he wished to raise, I summarised them as follows:[25]
So the questions are; first, whether the problems with the relevant tooth were caused by the motor vehicle accident; two, whether sufficient information was provided by the insurer to the IME; three, whether the respondent was acting in good faith; four, whether the insurer should have cancelled the appointment with Dr Short and or arranged for another in-person appointment; and five, whether Dr Nichols made an error in his report of 28 March 2024 in the second paragraph on page 37 when he said that Dr Patel didn’t answer the question of whether the injury was caused by the motor vehicle accident.
[25] Transcript of hearing dated 24 October 2024, page 9, lines 16-24
Mr Ahmad agreed that that was an accurate summary,[26] except that he said that he was also contending that the internal reviewer made the same mistake as Dr Nichols when the internal reviewer said that Dr Patel did not answer the question of whether the injury was caused by the motor vehicle accident.[27] I reformulated the fifth question of law or fact to include the issue of whether the internal reviewer made the same error as Dr Nichols.[28]
[26] Transcript of hearing dated 24 October 2024, page 9, line 26
[27] Transcript of hearing dated 24 October 2024, page 10, lines 27-47
[28] Transcript of hearing dated 24 October 2024, page 10, lines 39-41
Mr Ahmad proceeded to identify some further questions of law or fact relating to the internal reviewer’s report. These were whether the internal reviewer erred in concluding that Dr Naveed had not assessed the applicant since the motor vehicle accident;[29] whether the internal reviewer erred, in finding that the first report of tooth pain was on 27 April 2023, when in fact it was on 25 April 2023;[30] and whether it was fair for the internal reviewer to rely on the fact that the applicant had not provided previous dental records.[31]
[29] Transcript of hearing dated 24 October 2024, page 11, lines 37-39
[30] Transcript of hearing dated 24 October 2024, page 12, lines 16-28
[31] Transcript of hearing dated 24 October 2024, page 13, lines 20-22
The insurer’s legal representative, Mr Iliopoulos, did not object to the reformulation of the questions of fact and law.[32]
[32] Transcript of hearing dated 24 October 2024, page 13, lines 43 to page 16, line 9
I indicated that I would deal with the additional issues which Mr Ahmad raised after I had summarised the questions of law and fact as aspects of his causation ground. Mr Ahmad agreed to that.[33]
Applications to present additional information or evidence
[33] Transcript of hearing dated 24 October 2024, page 16, lines 11-17
Both parties applied for leave to present additional information or evidence. As indicated above, subsections 197(2) and (3) of the MAI Act provide, in effect, that the Tribunal must only consider the information that was available to the decision-maker when the decision was made unless it gives a party leave to present information or evidence that was not reasonably available to the decision-maker at that time.
The applicant made three leave applications and the insurer made two.
The applicant’s application to present additional information or evidence dated 16 August 2024 was dismissed by the Tribunal, differently constituted, on 19 August 2024 and need not be considered further. I heard the remaining applications at the hearing and reserved my decisions on them.
By an application dated 24 May 2024, the applicant applied for leave, under s 197(3) of the MAI Act, to present the following additional information or evidence:
(a)Dr Amber Halstead’s letter of 13 May 2024;
(b)Email correspondence with NRMA concerning a review of the internal review decision, following Dr Halstead’s report of 13 May 2024; and
(c)TMJ clinic referral by Dr Halstead on 10 May 2024 and insurance approval for initial consultation.
By application dated 24 June 2024, the insurer applied for leave, under s 197(3) of the MAI Act, to present the following additional information or evidence:
(a)A timeline of events.
(b)A letter from the insurer to the applicant dated 27 May 2024, responding to his request for a review of the internal review outcome and stating that the insurer was prepared to reconsider the internal review outcome on receipt of certain identified information and documents.
(c)An email from the insurer to the applicant dated 27 May 2024, to similar effect.
By application dated 3 October 2024, the insurer applied for leave, under s 197(3) of the MAI Act, to present as additional information or evidence the supplementary report of Dr Paul Nichols dated 6 September 2024.
By application dated 9 October 2024, the applicant applied for leave, under s 197(3) of the MAI Act, to present as additional information or evidence a number of documents, including the insurer’s letter of instructions to Dr Paul Nichols dated 19 August 2024 and the report of Dr Paul Nichols dated 28 August 2024.
The most significant documents the subject of the parties’ applications for leave to present additional information or evidence are the report of Dr Paul Nichols dated 28 August 2024 (on which Mr Ahmad sought to rely) and the supplementary report of Dr Paul Nichols dated 6 September 2024 (on which the insurer sought to rely).
Meaning of “not reasonably available”
The applications for leave to present additional information or evidence require the tribunal to determine, as a starting point, whether the information or evidence the subject of the applications “was not reasonably available to the decision-maker when the decision was made” within s 197(3) of the MAI Act. This raises the question of the meaning of the words “not reasonably available to the decision-maker”.
There is, in particular, a question as to whether the reports of Dr Nichols dated 28 August 2024 and 6 September 2024 were “not reasonably available to the decision-maker when the decision was made.” That is because the insurer had an opportunity to obtain Dr Da Cruz’s report (which Dr Halstead had told it about) and Dr Halstead’s clinical records, to provide them to Dr Nichols, and to arrange for a consultation between Dr Nichols and Mr Ahmad, before it made the primary decision not to pay treatment and care benefits in respect of the proposed treatment for tooth 16. In other words, on one view, the insurer could have obtained the opinions in Dr Nichols’ second and third reports before it made the primary decision.
The insurer relies upon a decision of Acting Presidential Member Kyprianou as setting out the meaning of “not reasonably available.” The Acting Presidential Member expressed the test as being whether it was within a party’s ability and power to make the information available to the decision-maker within the relevant time frame:[34]
The use of the expression ‘not reasonably available’ in section 197(3) indicates that the new information or evidence that is the subject of the application for leave could not have been made available to the decision-maker by the party seeking to rely on it before the reviewable decision was made. In other words, that it was not within that party’s ability and power to obtain the information and present it to the decision maker, within the time frame that the reviewable decision had to be made.
[34] Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA Insurance (Motor Accident Injuries) [2021] ACAT 83 at [7]
74. I respectfully consider that the question of what is within a party’s “ability and power” does not adequately take into account the statutory language of subsection 197(3), which is directed towards what was “not reasonably available to” the decision-maker. The word “reasonably” is significant. Acting Presidential Member Kyprianou recognised this later in that decision when she noted that the MAI legislation “requires parties to obtain and present all reasonably available information to the decision-maker as early as possible, rather than wait until the external review phase before doing so”.[35]
[35] Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA Insurance (Motor Accident Injuries) [2021] ACAT 83 at [12]
75. Acting Presidential Member Kyprianou discussed what information is to be considered reasonably available in a later decision where she made the following observations:[36]
The MAI (Internal Review) Guidelines require the internal reviewer to engage with the applicant and obtain from them all relevant information and documents. Applicants also have an obligation under section 187 of the MAI Act to provide all information an insurer requests and reasonably requires to conduct an internal review. If the information is not requested by the decision-maker a question arises as to whether it was reasonably available to them. An applicant who is unfamiliar with the review process may not know what information, or how much detail the information they provide should include, in order to support their claim. If the decision-maker does not request relevant information at the time of an internal review, and the applicant later seeks leave to present the information during the external review process, it would be unreasonable to interpret section 197(3) as a bar to allowing the applicant to present information which ought to have been sought at the time of the internal review in accordance with the MAI Guidelines.
[36] Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2022] ACAT 24 at [34] (footnote omitted)
That is, what is “not reasonably available” to a decision-maker is to be assessed having regard to the insurer’s obligation to engage with the applicant to obtain relevant information and the applicant’s likely unfamiliarity with the process.
As the Acting Presidential Member recognised, the phrase “not reasonably available” in the MAI Act is to be construed in its statutory and broader context, having regard to the purpose of the MAI Act and of s 197 in particular. In the words of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [14], “[t]he starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose”.
The phrase “available to the decision-maker when the decision was made” is used in both subsections 197(2) and (3) of the MAI Act, albeit that in subsection 197(3) that phrase is preceded by the words “not reasonably”. Subsection 197(3) provides a qualification to the injunction in s 197(2), which provides “the ACAT must only consider the information that was available to the decision-maker when the decision was made”. The word “decision-maker” is defined in subsection 197(1)(c)(ii) to be “the insurer that made the decision.” The focus, then, is on information available to the insurer, rather than information available to the individual the insurer has appointed as the internal reviewer.
The meaning of “available” in subsection 197(2) is relevant to the meaning of the phrase “not reasonably available” in s 197(3). The ordinary meaning of the word “available” is obtainable or accessible.[37] Considerations of text, context and purpose may indicate that a word does not have its natural and ordinary meaning.[38] However, the natural and ordinary meaning is an important indicator of its likely meaning. If the term “available” has its natural meaning then, subject to subsection 197(3), the tribunal must only consider the information that was obtainable by or accessible to the insurer when the internal review decision was made. That is a wider category of documents than the documents in the insurer’s possession or the documents before the decision-maker.
[37] See Collins Dictionary definition at:
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [14]; Andriotis v Victorian Building Authority [2018] FCAFC 24 at [94]
It is possible that the legislature intended, by the use of the word “available”, to refer only to documents before the decision-maker, or in the insurer’s possession. That would be consistent with the usual process in judicial review, where generally only the documents before the decision-maker may be considered. That is the view taken by Senior Member Hyman, who considered that s 197(2) imposed a requirement that “the ACAT rely on the same evidence as the internal reviewer”.[39] However, the principle that words used consistently in a statute should be construed consistently, unless there is good reason to do otherwise, suggests that the word “available” in subsection 197(2) should be construed in the same way as in subsection 197(3).[40] In subsection 197(3) the word plainly means accessible and is not limited to documents in the insurer’s possession. It is also consistent with the legislative purpose to allow the Tribunal to consider information which the insurer could reasonably have obtained but did not obtain. That encourages the insurer to obtain all relevant information before making its decision.
[39] Montgomery and Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2024] ACAT 60 at [15]
[40] Queensland (Queensland Health) v Forst [2008] FCAFC 96 at [41]
Subsection 197(3), which allows the tribunal to give a party “leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made,” is to be understood as a qualification to the prohibition in subsection 197(2) against considering information which was not available to the decision-maker when the decision was made. It implicitly allows the tribunal to consider information not reasonably available to the insurer if it gives a party leave to present that information or evidence.[41] The purpose of considering that evidence is to identify error in the decision.
[41] Montgomery and Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2024] ACAT 60 at [15]
The question of what is “not reasonably available to” a decision-maker is informed by the statutory scheme for review of insurer decisions of which tribunal review forms one part. One aspect of that scheme is that 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.[42] The applicant’s duty to act in good faith includes a duty to disclose, in a timely manner, all relevant information in relation to the application, including reports by health practitioners and any other information reasonably requested by an insurer in relation to the application or claim.[43]
[42] MAI Act s 20(2)
[43] MAI Act s 20(3)
Another relevant aspect of that scheme is the provisions in the MAI Act concerning internal reviews. Pursuant to subsection 190(1) of the MAI Act, the internal review applicant must give the insurer the information the insurer requests and reasonably requires for the internal review. The internal reviewer is required to consider this material, even if it was not before the original decision maker.[44]
[44] MAI Act s 190(2)
An applicant for internal review is bound by the MAI guidelines when making his or her application. Section 188 of the MAI Act provides:
188 Conduct of internal review—MAI guidelines
(1) The MAI guidelines may make provision for the internal review of internally reviewable decisions, including applications for internal review.
(2) An application for internal review, and the conduct of the review, must co`mply with the MAI guidelines.
The Motor Accident Injuries (Internal Review) Guidelines 2022 (the 2022 IR Guidelines), being “MAI guidelines”,[45] provide, in clause 4.1.1, that an application for internal review must include “any additional information the applicant considers is reasonably required for the review of the decision, and if this information is being obtained from a third party, a final date, for the provision of this information to the insurer”.
[45] MAI Act s 487 and Dictionary, definition of “MAI guidelines”
The scheme is premised upon the applicant for defined benefits providing relevant information and documents to the insurer at the time the applicant seeks internal review, and all information reasonably requested by the insurer, so that all relevant material may be taken into account. This is relevant when assessing whether information or evidence was reasonably available to the insurer at the time of the internal review decision. However, as Acting Presidential Member Kyprianou noted, the insurer is also obliged to engage with the applicant to obtain relevant information and is likely to have a much better understanding of what information is relevant and needed to make decisions than an applicant who is unfamiliar with the process.[46]
[46] Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2022] ACAT 24 at [34] (footnote omitted)
It is also important when construing s 197 to take into account its purpose and the purpose of the MAI Act as a whole. One of the objects of the MAI Act is to “support people injured in motor accidents to access defined benefits.” Another is to “promote and encourage the early, quick, cost-effective and just resolution of disputes”.[47] Section 197 of the MAI Act is directed towards achieving those objects. As Acting Presidential Member Kyprianou has observed:
By encouraging parties to do all that is reasonably possible to obtain all relevant information before external review of the decision is sought from the ACAT, disputes about decisions are more likely to be resolved during the internal review process set out in the MAI Act, thus promoting the early, quick and cost-effective resolution of disputes. This avoids the delay and expense of making an application for external review.[48]
[47] MAI Act ss 6(c) and (d)
[48] Neish v Insurance Australia Limited ACN 000 016 722 trading as NRMA Insurance (Motor Accident Injuries) [2021] ACAT 83 at [10]
I respectfully agree with that assessment of the purpose of section 197. Subsections 197(2) and (3) provide an incentive for applicants for defined benefits and insurers to obtain all relevant material before the internal review decision is made, and (in an applicant’s case) to provide all relevant material to the insurer. This suggests that the further information the subject of subsection 197(3) (“not reasonably available to the” insurer beforehand) must be information which the applicant could not reasonably have been expected to provide to the insurer at the time of the internal review decision.
Having regard to the text and purpose of section 197, I consider that the word “available” in subsection 197(2) refers to information which was either in the insurer’s possession or which was reasonably accessible to the insurer. The question of what is reasonably accessible to the insurer is to be approached having regard to the statutory scheme. Medical reports or documents listed as relevant in an internal review application would usually be reasonably accessible to the insurer unless, for example, the applicant refused to provide them upon request. They could be provided to the Tribunal without leave, being documents available to the insurer within subsection 197(2). However, medical reports or records in the applicant’s possession, which the applicant had not informed the insurer about or provided to the insurer, would generally not be “available to” the insurer for the purposes of subsection 197(2). Leave would be needed to present this information under subsection 197(3), and the circumstance that the applicant chose not to provide the documents to the insurer would be a reason to refuse leave.
It is instructive to consider how the phrase “not reasonably available” has been construed when used in similar contexts in legislation in other jurisdictions.
The phrase is used in a statutory provision which allows a party to proceedings in Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal (NCAT) to appeal to NCAT’s Appeal Panel on the ground that “significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)”[49] (emphasis added). NCAT’s Appeal Panel has expressed the view that “[a] failure by a party to realise that particular evidence is necessary or might be of assistance in advancing the party’s case is not sufficient to satisfy that standard”.[50]
[49] Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 12(1)(c)
[50] Above All Air Co Pty Ltd v Dandan Automotive Pty Ltd [2021] NSWCATAP 371 at [29]
In a different case, NCAT’s Appeal Panel discussed the legislative purpose of limiting fresh evidence in appeals to evidence which was not reasonably available, as follows:[51]
The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.
[51] Chapman v McLaughin [2016] NSWCATAP 212 at [37], cited with approval in My Fashion Republic Pty Ltd t/as Cosette v Pennisi [2024] NSWCATAP 187 at [16] and Jav Automotive Pty Ltd v Livermoore [2025] NSWCATAP 12 at [14]
That purpose of ensuring the finality of tribunal proceedings in NCAT’s legislation is analogous to the purpose of s 197 of the MAI Act, being to promote the early, quick and cost-effective resolution of disputes and to encourage the finalisation of disputes at the internal review stage.
Another statutory provision using the phrase “not reasonably available” is section s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Section 318 is located in Part 6 of that Act, which is entitled “Court proceedings for work injury damages”. Part 6 provides a procedure for persons injured at work to make claims against their employer for damages.
Subsection 318(1)(d) provides that a party may not have a report admitted into evidence if it was not disclosed in a pre-filing statement or defence, except with the court’s leave. Subsection 318(2) provides that the court is not to grant leave unless, relevantly, the material concerned was not reasonably available to the party when the pre-filing statement or defence was served. Under that statutory regime, a claimant is required to serve a pre-filing statement on a defendant before commencing proceedings, and the defendant is required to respond by serving a defence.
In Ljubicic v Heat and Control Pty Ltd [2023] NSWSC 982 (Ljubicic), Cavanagh J considered an application, under s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), for leave to rely upon an expert report in proceedings for work injury damages. Cavanagh J accepted the submission that, when determining whether material was reasonably available to a party, “it is always necessary to look at the substance of the evidence leading to the preparation of a report, rather than merely the form of the evidence (being a report with a certain date)”.[52] His Honour reasoned that “[i]n determining whether the material concerned was not reasonably available, it is necessary to consider both whether the material forming the basis of the report, and the report itself, were available”.[53] Cavanagh J commented that it was “necessary to consider all of the circumstances leading up to the preparation of the report and, specifically, when the material relied upon by the expert was reasonably available”.[54] His Honour added:[55]
The phrase “reasonably available” must be given meaning. It does not merely mean “available”. “Reasonably available” must be read in the context of the purposes of the WIM Act and, in particular, s 318. The party seeking to rely on the report must have taken reasonable steps to obtain it at the relevant time. The test is not simply whether the report could have been obtained. The test is whether there were reasonable steps which could have been taken, having regard to the material available in order to obtain the report.
[52] Ljubicic at [52]
[53] Ljubicic at [62]
[54] Ljubicic at [64]
[55] Ljubicic at [65]
The NSW District Court also considered the meaning of the phrase “not reasonably available” in s 318(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) in Skinner v The State of New South Wales [2021] NSWDC 36 (Skinner). Abadee DCJ had to decide whether expert reports, obtained after the pre-filing statement and defence, were “not reasonably available” at that time. His Honour focused on the availability of the information upon which the experts relied to form their opinions. His Honour observed:[56]
In my opinion, for Professor McFarlane’s and Dr Murray’s reports to be admitted under s 318(2)(a), the plaintiff needs to show that the information upon which they rely to express their opinions was not ‘reasonably available’ to them when they prepared their reports prior to the service of the plaintiff’s pre-filing statement. That construction gives content to the requirement in s 318(2)(a) that the material was not (previously) available. It serves the legislative purpose of ensuring that reports and other written material that is, or are, intended to be relied upon by a claimant is, or are, served on the other side in time for the pre-litigation processes to be considered. It gives meaning to the requirement for a party to exercise reasonable forensic diligence. It also may tend to reduce the scope for disputation, or at least reduce the time required for resolution of that disputation, in the subsequent litigation.
[56] Skinner at [34]
The approach, then, in proceedings for work injury damages in New South Wales, when considering whether expert reports post-dating a pre-filing statement were “not reasonably available” at that time, is to consider whether the information upon which the experts rely to express their opinions was “not reasonably available” then.
In section 197(3) of the MAI Act, the words “not reasonably available” are followed by the words “to the decision-maker.” This differs from the NCAT legislation which does not specify the person to whom the material was not reasonably available; and from s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), which speaks of unavailability to the party seeking to rely upon the material concerned. Further, unlike both of the New South Wales provisions, section 197(3) of the MAI Act does not regulate the admission of evidence in civil litigation. It is concerned instead with regulating a process of tribunal review which resembles administrative review in some ways and judicial review in others, but which is its own statutory process.[57]
[57] See Montgomery and Insurance Australia Limited ACN 000 016 722 trading as NRMA (Motor Accident Injuries) [2024] ACAT 60 at [16], [19]-[20].
A person injured in a motor accident is entitled to treatment and care benefits for treatment and care expenses, a term defined to exclude expenses for treatment and care that did not relate to a personal injury sustained in the motor accident.[107] The MAI scheme makes the insurer responsible for obtaining an assessment of an injury from “a health practitioner selected by [the] insurer”.[108] The evidence in this case gives rise to a real question as to whether the injury to tooth 16 was (at least) exacerbated by the accident. There is a significant amount of material indicating that this is a real possibility. In these circumstances, it was incumbent upon the insurer to undertake further investigation as recommended by a number of health practitioners, including its own expert, before determining that the accident did not cause Mr Ahmad’s injury and thereby denying what would otherwise be Mr Ahmad’s entitlement to treatment and care benefits.
[107] MAI Act ss 112, 113
[108] MAI Act s 121(1); 2023 Treatment and Care Guidelines, clause 3.2.1
The 2023 Treatment and Care Guidelines provide, in clause 6.4.1, that “[t]reatment and care will be directly related to a person’s injury if a service relates to an injury caused by the motor accident including the exacerbation of a pre-existing injury.” An expert opinion as to whether the injury to tooth 16 was exacerbated by the motor vehicle accident is therefore needed before an informed decision can be made as to whether the proposed treatment for tooth 16 relates to the motor vehicle accident.
In the circumstances of this case, I am not satisfied that the insurer complied with the 2023 Treatment and Care Guidelines, which provide in clause 3.2.1 that the health practitioner chosen by the insurer to conduct an assessment of an injured person’s injuries “should be appropriately qualified and have the expertise to provide the assessment sought”. Dr Nichols stated that it was possible that the motor vehicle accident aggravated the condition of tooth 16 and recommended that the insurer get an opinion from a specialist prosthodontist. By making that recommendation, he indicated that he was not fully qualified to opine on causation and that the insurer should consult someone who was better qualified. The insurer was therefore obliged, under the MAI guidelines, to seek an opinion from a practitioner who was “appropriately qualified” and who had “the expertise to provide the assessment sought”. Alternatively or additionally, the insurer could have arranged for the internal investigation recommended by Dr Patel.
The insurer’s duty to act in good faith in relation to an application for defined benefits[109] also obliges it to conduct all reasonable inquiries before determining that an accident did not cause an injury. Its “duty to promptly pay any defined benefits to which a person is entitled”[110] requires it to take reasonable steps to satisfy itself that the person is not entitled to benefits before refusing to pay them.
[109] MAI Act s 20
[110] MAI Act s 20(4)(f)
The insurer’s failure to obtain sufficient information to determine the causation of the tooth injury, before concluding the causation question adversely to Mr Ahmad, constituted an error of law. That error may be characterised as a failure to comply with the MAI guidelines, a failure to act in good faith in relation to the application for defined benefits, or a further breach of procedural fairness.
Consideration of issue 4 – whether the insurer should have cancelled the appointment with Dr Short and or arranged for another in-person appointment
Mr Ahmad contended, in his written submissions, that the insurer failed to act in good faith when it cancelled an appointment with Dr Sandra Short on 18 March 2024, for an assessment.
At the hearing, Mr Ahmad informed the Tribunal that the insurer had cancelled his appointment with Dr Short, the practitioner the insurer referred to as an “IME,” one day before the appointment, without consulting him first.[111] Mr Ahmad’s complaint appeared to be that the insurer should have arranged for an in-person assessment (as it had planned with Dr Short), but instead arranged for Dr Nichols to conduct the assessment on the papers.[112] He also complained about the delay occasioned by cancelling the appointment.[113]
[111] Transcript of hearing dated 24 October 2024, page 5, lines 39-43
[112] Transcript of hearing dated 24 October 2024, page 7, lines 1-19
[113] Transcript of hearing dated 24 October 2024, page 7, lines 14-16
The insurer is entitled to require an injured person to attend a health practitioner for assessment of the person’s injuries.[114] However, that does not necessarily mean that an insurer may not arrange for an assessment of a person on the basis of medical and other records in appropriate circumstances.
[114] MAI Act s 121(1)
It is not necessary to decide whether it was an error to arrange for an assessment on the papers in this case because, if it was, that error was cured when the insurer arranged for Mr Ahmad to undergo an in-person assessment with Dr Nichols after the internal review. The second and third reports of Dr Nichols are written after his examination of Mr Ahmad in August 2024. The Tribunal has considered those reports when considering the issue of causation.
Consideration of issue 3 – whether the insurer was acting in good faith
Mr Ahmad submits in his submissions dated 17 October 2024 that the insurer did not act in good faith because it:
(a) Cancelled a scheduled IME with Dr Sandra Short appointment dated March 18, 2024, which delayed treatment and care.
(b) Obtained an IME report from Dr Paul Nichols through a paper file review dated March 28, 2024, and did not provide an in-person assessment opportunity initially.
(c) Provided inadequate records to Dr Paul Nichols for the IME assessment on March 28, 2024.
(d) Failed to address all the concerns raised by the applicant in the internal review application.
(e) Refused to add applicant’s additional questions in the letter of instructions to Dr Paul Nichols for the IME assessment dated August 23, 2024.
(f) Obtained a supplementary report dated September 6, 2024 without the applicant’s knowledge.
(g) Failed to comply with ACAT Order 1, issued on September 18., 2024, in a timely manner.
(h) Submitted only Dr Paul Nichols’ supplementary IME report from September 6, 2024, to ACAT as additional information dated October 2, 2024.
Some of the issues raised in relation to this ground are dealt with separately above. It is not otherwise necessary to determine this ground in light of my conclusions in relation to the first two grounds.
I note that the Tribunal is conducting a review of a reviewable decision to determine whether the decision was affected by error, not a general investigation into the probity of the insurer’s conduct.
Consideration of issue 5 – whether Dr Nichols made an error in his report of 28 March 2024 and whether the internal reviewer made the same error
Mr Ahmad contended that both Dr Nichols in his report of 28 March 2024 and the internal reviewer wrongly found that Dr Patel had not answered one of the questions put to him by the insurer, being whether the motor vehicle accident had contributed to Mr Ahmad’s need for dental treatment. This submission is dealt with above.
Mr Ahmad identified another error he said was made by Dr Nichols and the internal reviewer. In Mr Ahmad’s submissions dated 17 October 2024, he contended that Dr Nichols’ “fundamental understanding in his report dated August 28 is incorrect.” That is because, in Mr Ahmad’s submission, the x-rays Dr Nichols attributes to Dr Saad Naveed “actually belong to Dr Amber Halstead and were taken on August 7, 2024”.
At the hearing, Mr Ahmad took the Tribunal to the letter of Dr Saad Naveed to the insurer, dated 18 April 2024. On the page following the 2-page letter by Dr Naveed appear x-rays which are presumably of the applicant’s teeth. The applicant told the Tribunal, at the hearing, that he had provided those x-rays to Dr Naveed before Dr Naveed wrote his report.[115] This is consistent with Dr Naveed’s statement in the report that he had been provided with “five month post motor vehicle accident x-rays”.[116] The applicant told the Tribunal that the x-rays were from Dr Halstead.[117]
[115] Transcript of hearing dated 24 October 2024, page 40, lines 10-12
[116] Report of Dr Saad Naveed, page 2 in Respondent’s materials filed on 1 October 2024, page 50
[117] Transcript of hearing dated 24 October 2024, page 40, lines 35-36
The applicant also submitted that, in his report of 28 August 2024, Dr Nichols stated that the x-ray from Dr Naveed pre-dated the motor vehicle accident, whereas in fact it post-dated that accident.[118]
[118] Transcript of hearing dated 24 October 2024, page 43, line 41 to page 44, line 12
The appendix to Dr Nichols’ report of 28 August 2024 contains an image of some teeth. Under the image is a description of the image as follows: “X-ray from Dr Saad pre MVA of tooth 16 showing the inadequate (gross) root canal filling, and apical pathology”.
Mr Ahmad submitted that these were in fact images from Dr Halstead’s letter of 7 August 2023.[119] He submitted that Dr Nichols was mistaken in attributing the image to Dr Saad Naveed.[120]
[119] Transcript of hearing dated 24 October 2024, page 44, lines 44-46
[120] Transcript of hearing dated 24 October 2024, page 45, lines 3-6
I drew Mr Ahmad’s attention to page 3 of Dr Nichols’ report, in which he stated that there were no pre MVA (motor vehicle accident) dental records or x-rays.[121] Mr Ahmad stated that Dr Nichols had made lots of errors and that there was an inconsistency.[122]
[121] Transcript of hearing dated 24 October 2024, page 45, lines 8-13
[122] Transcript of hearing dated 24 October 2024, page 45, lines 15-16
In his report of 28 March 2024, in the reasoning section, Dr Nichols repeated that there were no pre-MVA x-rays. Under the heading “Document Review”, he stated: “There were no pre or at time of incident dental records or x-rays”. He also stated that Dr Naveed “was unable to provided [sic] pre accident records”.[123] In response to a question from the insurer asking Dr Nichols to provide a comprehensive occupational and medical history, Dr Nichols wrote: “There were no medical or dental records or pre MVA x-rays”.[124] In response to the insurer’s question about treatment, Dr Nichols wrote: “Past: Unknown. There were no records”.
[123] Dr Nichols’ report of 28 August 2024, page 2
[124] Dr Nichols’ report of 28 August 2024, page 3
In these circumstances, I am satisfied that the description of the x-ray as “pre MVA” was a slip. Dr Nichols consistently stated in the body of the report that there were no pre-MVA x-rays. In light of Dr Nichols’ reasoning in the body of the report, I am satisfied that the reference to the x-ray as “pre-MVA” did not reflect any misconception that it was, in fact, taken before the accident.
I note that in the supplementary report dated 6 September 2024, Dr Nichols also stated that “[t]here were no incident/injury, ambulance, or hospital reports, records, pre injury x-rays or notes” and there were “no pre MVA dental records or x-rays”.[125] This reinforces my conclusion that Dr Nichols did not in fact consider the image in the appendix to his report of 28 August 2024 to be an image taken before the motor vehicle accident occurred.
[125] Dr Nichols’ report of 6 September 2024, page 2
The circumstance that Dr Nichols attributed the image to Dr Naveed, instead of Dr Halstead, does not affect Dr Nichols’ conclusions.
Mr Ahmad has not established that the error in Dr Nichols’ report about the x-ray is an error which affected his reasoning or conclusions. It follows that it did not affect the internal reviewer’s decision, and it does not provide a basis for setting aside that decision.
Conclusion
Mr Ahmad has established that the insurer made an error when determining that the accident did not cause the issues with his tooth 16. That is because it failed to obtain further specialist opinions or other evidence as recommended by its own expert and other health practitioners, and this additional evidence was required to exclude the reasonable possibility that the accident caused Mr Ahmad’s injury.
The appropriate course in this situation is for the Tribunal to set aside the reviewable decision and to remit it for reconsideration by the insurer in accordance with the Tribunal’s directions, pursuant to section 197(1)(c)(ii) of the MAI Act. The Tribunal will direct that, after consultation with Mr Ahmad, the insurer either obtain the opinion specialist prosthodontist or arrange for an internal investigation of tooth 16, before deciding whether or not to approve Mr Ahmad’s application for treatment and care benefits.
………………………………..
Presidential Member Dr J Lucy
| Date of hearing: | 24 October 2024 |
| Applicant: | In person |
| Solicitors for the Respondent: | Meridian Lawyers |
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