Begonja v Insurance Australia Group Ltd Trading as NRMA Insurance (Motor Accident Injuries)

[2022] ACAT 46

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BEGONJA v INSURANCE AUSTRALIA GROUP LTD TRADING AS NRMA INSURANCE (Motor Accident Injuries) [2022] ACAT 46

MAI 13/2021

Catchwords:               MOTOR ACCIDENT INJURIES – application for review of insurer’s decision pursuant to section 193 of the Motor Accident Injuries Act 2019

Legislation cited:        Motor Accident Injuries Act 2019 ss 120, 193, 197

Subordinate

Legislation cited:        Motor Accident Injuries (Treatment and Care) Guidelines 2021 s 6.4

Tribunal:Acting Presidential Member T Kyprianou

Date of Orders:  8 June 2022

Date of Reasons for Decision:      8 June 2022

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          MAI 13/2021

BETWEEN:

VENDRA BEGONJA

Applicant

AND:

INSURANCE AUSTRALIA GROUP LTD
 TRADING AS NRMA INSURANCE

Respondent

TRIBUNAL:Acting Presidential Member T Kyprianou

DATE:8 June 2022

ORDER

The Tribunal orders that:

1. The respondent’s decision of 27 April 2021 denying liability for the cost of ketamine treatment is affirmed.

   ………………………………..

Acting Presidential Member T Kyprianou

REASONS FOR DECISION

Background

1. The application in this matter has been made pursuant to section 193 of the Motor Accident Injuries Act 2019 (MAI Act) and it seeks external review of a decision made by the respondent on 27 April 2021 which rejected liability for the cost of ketamine infusion treatment, to treat injuries sustained by the applicant in a motor accident on 17 March 2020.

2. The applicant sustained injuries in a motor accident on 17 March 2020 in the Australian Capital Territory, when the car she was driving was hit from behind by a vehicle insured by the respondent for personal injuries. As a result of the collision the applicant’s vehicle, which was stationary at traffic lights at the time, was pushed into the vehicle in front.

3. The applicant lodged an application with the respondent for defined benefits on 17 April 2020. In that application she stated that as a result of the motor accident she received injuries to both knees and her legs generally, her neck, spine, arms and had two black eyes.

4. The respondent accepted liability for defined benefits on 14 May 2020 and subsequently accepted liability for a number of expenses incurred by the applicant in receiving treatment and care for the injuries she sustained as a result of the motor accident.

5. On 16 February 2021 the applicant saw Dr Geoffrey Spendelwinde, pain management specialist, on referral from Dr Fuller, neurosurgeon. The referral was for treatment of the applicant’s chronic pain in her spine. Dr Spendelwinde recommended certain investigations for the applicant’s injuries and some treatment for her chronic pain including ketamine infusions to be administered as an inpatient at John James Hospital.

6. Dr Spendelwinde sent a request for approval for treatment for the ketamine infusions to the respondent on 22 March 2021. He stated that the applicant would need to be an inpatient at John James Hospital for 3-5 nights at a cost of $1,170 - $1,501 per day.

7. The respondent wrote to the applicant on 8 April 2021 rejecting liability for the ketamine infusion treatment recommended by Dr Spendelwinde on the basis that research evidence does not support ketamine infusions for the treatment of chronic pain.

8. The applicant requested internal review of that decision on 13 April 2021 by way of a letter from her solicitors.

9. On 27 April 2021 the respondent issued an internal review decision (the reviewable decision) affirming the decision of 8 April 2021.

10. The applicant’s solicitors lodged an Application for Review of Insurer’s Decision with the tribunal on 21 May 2021 (the application), which is the subject of these proceedings.

Legislative framework

1. It is common ground that the decision of the respondent dated 27 April 2021 is an ACAT reviewable decision as defined by section 192 of the MAI Act.

2. Section 197 of the MAI Act relevantly provides:

   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. Section 193(1) of the MAI Act provides that an application to the ACAT for external review of a reviewable decision can be made by the people listed in the section on a question of law or fact. In other words, the tribunal’s role is to determine the legality of the decision under review and not to conduct a merits review to ascertain whether the decision is the most preferable on the material available.

4. The limitation on the information which the tribunal can consider in conducting the review set out in section 197(2) of the MAI Act also supports that its role is to conduct a review of the legality of the decision rather than a merits review. The Explanatory Statement of the Motor Accident Injuries Bill 2019 confirms that this was the legislator’s intention about the role of the tribunal:

   Clause 194          External review—decision

   In deciding an application ACAT must either affirm, amend, or set aside the decision and: substitute another decision in its place; or remit the matter back to the insurer. As the application is not a merit review, only a review on questions of law and fact, ACAT can only consider information that was available to the insurer. However, ACAT may give permission for a person involved in the external review to present information that was not reasonably available at the time the insurer made the decision. This may apply in the circumstances where a person has had a medical examination conducted, however, the report was not available before the decision was made.

5. It is therefore clear 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. The decision can be set aside or amended only if it was made by engaging in an error of law or by relying on an error of fact.

   Documents available to the tribunal

6. Subject to section 197(3), section 197(2) of the MAI Act provides that when reviewing the decision the tribunal must only consider the information that was available to the decision‑maker. By necessary implication this provision requires the respondent to provide to the tribunal all of the information it had available relating to the applicant’s claim which is the subject of the reviewable decision. Pursuant to an order of the tribunal dated 27 May 2022 requiring this information, the respondent in this matter filed an indexed bundle of documents on 30 June 2021 (the MAI documents).

7. Both parties subsequently made applications pursuant to section 197(3) of the MAI Act for leave for further documents to be presented to the tribunal. On 16 February 2022 Presidential Member Robinson gave leave to the parties to present the following further documents:

   (a)Twenty-six documents attached to the application to present additional information/evidence made by the respondent and dated 1 December 2021.

   (b)The report of Dr Anandhi Rangawaamy dated 18 November 2021 attached to the application to present additional information/documents made by the applicant and dated 1 December 2021.

   (c)The applicant’s correspondence to Mr Hearne of HWL Ebsworth dated 30 November 2021, relating to the report of Dr Reiter.

   (d)The email chain commencing with the listing notice of 30 November 2021 at 11:41am and concluding with the email from Mr Hearne to the tribunal registry of 9 December 2021 and including the email from the applicant to Mr Hearne of 1 December 2021 at 5:29pm.

   (e)The email chain commencing with the listing notice of 30 November 2021 at 11.41am and concluding with the email from Mr Hearne to the tribunal dated 8 December 2021.

8. Leave was also given to the applicant to present a number of other documents which I will not list as they were already included in the bundle of 26 documents attached to the respondent’s application dated 1 December 2021.

9. In addition to the above listed documents the tribunal has had the benefit of submissions lodged by both parties dated 14 April 2022 (applicant) and 29 April 2022 (respondent).

   Summary of the relevant medical evidence

10. The applicant’s injuries arising from the motor accident have been managed by her general practitioner Dr Sarwat Azra who has referred her for a number of investigative procedures and to a number of specialists and allied health professionals for treatment. These included a massage therapist, a chiropractor and a neurologist.[1]

    [1] MAI documents page 391

11. After having an MRI scan of her cervical thoracic and lumbar spine on 17 July 2020 she was referred for review to a neurosurgeon, Dr Fuller. After arranging further investigations Dr Fuller advised that surgical treatment would not assist the applicant in alleviating her symptoms and he referred her to Dr Spendelwinde for pain management in November 2020.[2]

    [2] MAI documents pages 371, 372

12. Dr Spendelwinde said that the applicant suffered intense lumbar pain with significant emotional impact which may be related to symptomatic internal disc disruption at L4-5 and suspicion of low-level discitis at L4-S, shoulder girdle strain and significant pain behaviours related to the impact of the injury. He recommended further investigations for her discitis and he prescribed a sleeping/pain relief medication. He also prescribed ketamine infusion “to modulate her amplified pain state”.[3]

    [3] MAI documents pages 405-406

13. The respondent wrote to Dr Spendelwinde on 17 March 2021 requesting further details of the recommendation for ketamine infusion including the cost of this treatment. Dr Spendelwinde replied on 22 March 2021[4] advising the cost would be “$1,501 per day (with psych) or $1,170 per day (without psych)”. He also advised the treatment was for chronic widespread pain with anxiety and sensitisation and that the applicant would need to be an inpatient at John James Hospital for 3-5 days to have the treatment.

    [4] MAI documents page 429

14. On 8 April 2021 the respondent wrote to Dr Spendelwinde by email advising that they were unable to fund the requested ketamine infusions because a number of research papers and best practice guidelines which they listed in the email did not support ketamine infusions for management of persistent pain. The email also stated that the respondent was prepared to fund an initial assessment with a clinical psychologist specialising in the management of chronic pain if Dr Spendelwinde provided a referral for such assessment, though it was noted that the applicant denied any emotional impact of her injury on her symptoms.[5]

    [5] MAI documents page 430

15. Dr Spendelwinde provided a report to the solicitors of the applicant dated 6 April 2021 in which he confirmed that he recommended amongst other treatment, ketamine infusion to modulate her amplified pain state.[6]

    [6] Filed by the solicitors for the applicant on 21 May 2021 along with Application for Review of Insurer’s decision

16. The applicant was referred by her solicitors to Dr David Gorman, pain specialist for assessment. Dr Gorman was made aware of Dr Spendelwinde’s treatment recommendation for ketamine infusions. On 9 June 2021 Dr Gorman provided a report with his opinion in relation to the applicant’s condition. In response to the question of what treatment he considered reasonably necessary for the applicant’s motor accident caused injuries, Dr Gorman said that she should continue taking Panadeine and Panadeine Forte regularly and engage with an exercise physiologist for 10 sessions over a three-month period.[7]

    [7] Additional information provided by respondent on 1 December 2021 pages 1-9

17. In November 2021 the applicant’s general practitioner referred the applicant to another pain specialist, Dr Anandhi Rangaswamy. Dr Rangaswamy provided a letter addressed to the applicant’s general practitioner dated 18 November 2021 in which she said she had discussed a treatment plan with the applicant.[8] She outlined the treatment she recommended in that letter which included medication, physiotherapy and an L3 nerve root injection. Dr Rangaswamy did not recommend ketamine infusions for treatment of the applicant’s pain.

    [8] Additional information provided by the applicant on 1 December 2021

18. In November 2021 the respondent engaged Dr Loretta Reiter (rheumatologist) to provide an opinion on the papers about the treatment which had been recommended to the applicant including the ketamine infusions recommended by Dr Spendlewinde.[9] (Dr Reiter provided her opinion in a report dated 28 November 2021).[10] She set out in her report a number of evidence based published studies about the efficacy of ketamine infusions in treating chronic pain. She concluded on page 61 of her report:

    In view of their [sic] not being any higher quality data to support ketamine infusions in chronic pain and that it only potentially provides weeks to months relief and not long term relief, in my opinion, I do not consider that it is reasonable and necessary for her injuries due to motor vehicle accident.

    Entitlement to treatment and care benefits under MAI Act

    [9] Briefing letter to Dr Reiter filed by the respondent in additional information filed by respondent on 1 December 2021 page 54-55

    [10] Additional information filed by respondent on 1 December 2021 page 56-57

19. In circumstances where an injured person is unable to undertake their pre-accident duties and activities for more than 28 days after the accident, the MAI legislative scheme[11] requires the insurer to pre-approve the injured person’s treatment and care needs after consultation with the claimant and their nominated medical practitioner. The relevant insurer must develop and give the claimant a recovery plan which sets out the pre-approved treatment and care benefits the insurer has agreed to pay for.[12]

    [11] The MAI Act and the MAI (Treatment and Care) Guidelines 2021 issued by the MAI Commission

    [12] See division 2.5.4 of the MAI Act

20. If the injured person requires treatment and care which is not pre-approved and contained in the recovery plan they must apply to the relevant insurer for approval to undergo the treatment.[13]

    [13] Section 126 of the MAI Act

21. In this matter it would appear that the applicant sought approval for the ketamine infusion treatment because it was not contained in any recovery plan provided to her. I note that the MAI documents do not contain any recovery plans provided to the applicant, and the applicant has stated in her letter of 2 November 2021 to Ms McJannett of HWL Ebsworth (page 5) that no recovery plan was provided to her. The development of a recovery plan is an important step in the management of an injured person’s injury and rehabilitation. It provides the opportunity for the injured person and their nominated doctor, as well as other treatment providers, to provide input into the injured person’s treatment plan and explain the reasons the treaters have recommended specific treatments. Despite the absence of a recovery plan in this matter, it is clear from the documents provided to the tribunal that the applicant, Dr Spendelwinde who recommended the treatment which is the subject of the dispute, and a number of other medical professionals the applicant has seen on referral from her general practitioner or her solicitors, had the opportunity to provide input on the issue of whether ketamine infusion is a reasonable and necessary treatment for the applicant.

22. Section 120 of the MAI Act sets out the factors which the relevant insurer must consider in 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.

23. MAI Treatment and Care Guideline (T&C Guideline) 6.4 provides that 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, that is the factors listed in section 120 (b).

24. Taken in order as they appear in that section:

    (a)whether the treatment and care is reasonable and necessary in the circumstances

25. Of the three pain management specialists the applicant was referred to for an opinion in relation to treatment for her pain by either her treating general practitioner or her solicitors, Dr Spendelwinde is the only one who recommended ketamine infusions.

26. The applicant herself was not satisfied with the consultation she had with Dr Spendelwinde. She has stated that Dr Spendelwinde did not examine her appropriately and she lodged a complaint about it. She also found the amitriptyline medication he prescribed ineffective[14]. She was subsequently referred to another pain specialist Dr Rangaswamy, for treatment of her pain. Dr Rangaswamy, as well as Dr Gorman, whom the applicant has seen for medico-legal purposes recommended alternative treatments for pain management. They clearly do not consider that ketamine infusions is necessary treatment for the applicant’s condition. Accordingly, I do not consider that ketamine infusions is necessary treatment in the circumstances, even if it is considered by some pain management specialists as reasonable.

    (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;

    [14] See letter from applicant to Ms Hearne HWL Ebsworth dated 30 November 2021 page 7 under heading “paragraph 5”

27. It does not appear to be in dispute that the ketamine infusion treatment recommended by Dr Spendelwinde is directly related to the applicant’s injury. I note that neither the reviewable decision nor the respondent’s submissions raise this as an issue. Though Dr Reiter has said in her report of 28 November 2021 that the applicant’s chronic pain is more likely to be due to her pre-existing underlying degenerative condition and not the injury caused by the motor accident, none of the other doctors who examined the applicant have expressed this view. I note that Dr Reiter has not examined the applicant. She prepared her report by conducting a review of the papers. I therefore consider that the majority of the medical evidence supports that the applicant’s chronic pain is related to her motor accident injury.

28. There is a difference of opinion between Dr Spendelwinde and Dr Reiter as to whether the ketamine infusion treatment is appropriate and would offer long term benefit to the applicant. Though Dr Spendelwinde has not expressly said so, I am prepared to accept that he would not have recommended the treatment to the applicant had he thought that it was inappropriate or that it would not benefit her. Dr Reiter has not said that the treatment would be of no benefit to the applicant, but she has relied on published resources to support her opinion that any benefit the applicant derives from the treatment would be for a short term. The MAI T&C Guidelines provide at paragraph 6.4.3 that treatment and care will be appropriate for an injury if it is based on current clinical practice, evidence based practice or clinical guidelines. I note that at least some of the clinical guidelines provided by the respondent in the filed documents do not support that ketamine infusions is treatment which is evidence based or part of current clinical practice for the treatment of chronic pain.[15] Further, the two other pain management specialists who examined the applicant, that is Dr Gorman and Dr Rangaswamy, have not recommended ketamine infusions. On balance I do not consider that the majority of the available medical evidence supports that ketamine infusions is appropriate and beneficial for the applicant’s condition.

    (c)the appropriateness of a provider of the treatment and care;

    [15] Pain intervention Guidelines issued by Workcover Queensland which state current evidence based research does not support ketamine infusion for pain intervention MAI docs page 442; Attachment to Dr Reiter’s report – Up to Date medical resource (page 64 of Additional documents filed by respondent on 1 December 2021) which states “While there are no high-quality data to support Ketamine infusions, the available data suggest that infusions given for several hours repeated over several days may have the potential to provide weeks or months of relief, with the best evidence of efficacy in CRPS [chronic regional pain syndrome] patients”.

1. Given the applicant has been referred to another pain management specialist and has expressed concerns about the way she was examined by Dr Spendelwinde and is no longer being treated by Dr Spendelwinde, I do not consider that it is appropriate that she be treated by Dr Spendelwinde for her pain management.

   (d)whether the treatment and care is cost effective

2. Dr Spendelwinde has assessed the cost of the Ketamine infusions in the range of $3,510-$7,510. The applicant will need to be admitted to hospital for 3-5 days for the treatment to be administered.[16]

   [16] Letter from Dr Spendelwinde to the respondent dated 22 March 2021

3. The alternate treatment suggested by Dr Gorman and Dr Rangaswamy has not been costed in the documents available. However, it is unlikely to be more expensive than the Ketamine infusions given that the alternative treatment does not require the applicant to be admitted to hospital for several days.

Conclusion

1. Having reviewed the relevant medical evidence and the factors set out by the MAI Act and the MAI T&C Guidelines which must be considered when deciding whether a requested treatment benefit is reasonable and necessary, I do not consider that the reviewable decision of 27 April 2021 which denied liability for the treatment benefit of ketamine infusion to treat the applicant’s pain condition is affected by any error or fact or law. Accordingly, the reviewable decision is affirmed.

2. I note that the submissions filed on behalf of the applicant by her solicitors dated 14 April 2022 raise as an issue in dispute whether the treatment of the L3 nerve root injection recommended by Dr Rangaswany is reasonable and necessary. The reviewable decision, which is the only decision this Tribunal has jurisdiction to review in these proceedings, does not deal with that recommended treatment. Accordingly, this decision cannot address that issue. I am not aware whether the respondent has made a decision in relation to the treatment recommended by Dr Rangaswany. If such a decision has been made and the applicant disagrees with it, it would be open to her to seek review of that decision pursuant to the provisions of the MAI Act.

   ………………………………..

Acting Presidential Member T Kyprianou

Date of hearing:	On the papers
Solicitors for the Applicant:	Ms L Norman, Shine Lawyers
Solicitors for the Respondent:	Ms S McJannett, HWL Ebsworth