Cha v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMR 64
•28 October 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Cha v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 64 |
| ClaimanT: | Yongwon Cha |
| Insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Merit Reviewer: | Belinda Cassidy |
| DATE OF DECISION: | 28 October 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); claimant for statutory benefits and merit review of dispute about whether claimant can recover benefits for telehealth treatment provided by Australian health practitioners to claimant in Korea; claimant argued treatment was provided in Australia and not caught by section 3.33 of the 2017 Act; insurer argued treatment was provided to claimant outside Australia and was caught by section 3.33 of the 2017 Act; Held – treatment is provided when it is received therefore treatment provided to claimant in Korea outside Australia; claimant is not entitled to statutory benefits for that treatment; costs allowed on an exceptional basis due to novel issue but allowed at usual regulated amount. |
| Determinations made: | 1. In accordance with Division 7.4 of the Motor Accident Injuries Act 2017, the decision of Merit Reviewer Cassidy is that the insurer’s decision to refuse to pay the five disputed invoices for treatment provided to the claimant while he was outside Australia is affirmed. 2. In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission, as constituted by Member Cassidy, assesses the claimant’s recoverable costs in the sum of $1,980.00 inclusive of GST. |
STATEMENT OF REASONS
introduction
This is a dispute about treatment. The amount of treatment in dispute is not large (two visits to a doctor and three interpreter invoices totalling $770) but the issue in dispute is a novel one which does not appear to have been the subject of any previous proceedings at the Personal Injury Commission (the Commission).
Mr Yongwon Cha was injured in a motor accident on 17 February 2019. On 27 February 2019 he made a claim for statutory benefits against NRMA the third-party insurer of the vehicle that he says caused his accident.
NRMA accepted the claim and agreed it had a liability to pay Mr Cha benefits for the first 26 weeks after the accident. NRMA later accepted liability to pay ongoing statutory benefits, as NRMA considered Mr Cha was not at fault for the accident and he had more than minor injuries.
Mr Cha was studying in Australia at the time of his accident and has returned to South Korea where he lives. At some time earlier this year, Mr Cha provided NRMA with invoices for treatment provided to him while he is in Korea. On 23 May 2022, NRMA declined to pay for this treatment on the basis that Mr Cha was not an Australian citizen or permanent resident and the treatment in issue was treatment provided overseas. The claimant sought an internal review of that decision and on 23 June 2022 the internal reviewer affirmed the original decision.
The claimant has referred the dispute to the Commission and the matter has been allocated to me for determination.
LEGISLATIVE FRAMEWORK
General scheme provisions
Mr Cha’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents.
Treatment and care expenses are part of an injured person’s statutory benefits claim[1] and they cannot be claimed as economic or pecuniary losses and recovered in the injured person’s damages claim[2].
[1] Under Division 3.4 of the MAI Act.
[2] See s 4.5 of the MAI Act.
Section 3.24 of the MAI Act provides the general entitlement to treatment and care statutory benefits as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) … reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
While the scheme of compensation and benefits provided for in the MAI Act is available to almost all persons injured in a motor accident occurring in New South Wales[3],there are provisions which restrict access to statutory benefits for persons who are not Australian citizens and persons who are not residing in Australia as follows:
“3.21 Weekly statutory benefits to persons residing outside Australia
(1) An injured person who resides outside Australia is not entitled to receive any weekly payment of statutory benefits in respect of any period during which the person resides outside Australia, except as provided by this section when the loss of earning capacity is likely to be of a permanent nature.
3.33 Treatment and care provided while persons residing outside Australia
An injured person who is not an Australian citizen or a permanent resident of Australia is not entitled to statutory benefits under this Division in respect of treatment and care provided outside Australia.”
[3] On or after 1 December 2017.
Dispute resolution
Part 7 of the MAI Act provides for the assessment of claims for damages and disputes that arise in the course of a claim for damages or in a statutory benefits claim. Division 7.3 provides for the review of insurer decisions internally within the insurance company. Divisions 7.4, 7.5 and 7.6 provide for merit reviews, medial assessments and claims assessments by the Commission.
Pursuant to Schedule 2, cl 1 of the MAI Act, various matters are declared to be a merit review matters, including (r):
“whether for the purposes of section 3.33 (Treatment and care provided while persons residing outside Australia) an injured person is an Australian citizen or a permanent resident of Australia or whether treatment and care provided to the injured person has been provided while the person is residing outside Australia.”
Schedule 2, cl 2(b) declares the following to be a medical assessment matter:
“whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care).”
What Treatment is in dispute?
The five treatment invoices in dispute were not attached to the application but were provided on my request and are as follows[4]:
(a) Able Interpreting 7 May 2022 – “onsite interpreting” for Dr Angela Lam of the Alliance Healthcare Centre, Korean interpreter[5] one hour - cost $231 including GST (Saturday rate);
(b) Allied Medical Health Care Centre Lidcombe 2 June 2022 – patient Mr Yongwon Cha of an address in Pymble, item AA020 WC/CTP Level B consultation 04:05 – cost $86;
(c) Able Interpreting 2 June 2022 – “onsite interpreting” for Dr Angela Lam of the Alliance Healthcare Centre, Korean interpreter[6] one hour - cost $184.80 including GST;
(d) Allied Medical Health Care Centre Lidcombe 16 June 2022 – patient Mr Yongwon Cha of an address in Pymble, item AA020 WC/CTP Level B consultation 04:00 – cost $86, and
(e) Able Interpreting 16 June 2022 – “onsite interpreting” for Dr Angela Lam of the Alliance Healthcare Centre, Korean interpreter[7] one hour - cost $184.80 including GST.
[4] The invoices are in a bundle identified as D3.
[5] The name and accreditation number of the interpreters have been provided but omitted for the purposes of this decision.
[6] Name and accreditation number were provided.
[7] Name and accreditation number were provided.
The total sum of the above invoices is $772.60. I was advised by the parties that there is an invoice for an attendance with Dr Lam on 7 May 2022 which corresponds with the first interpreter invoice. Ms Woodward said this was paid by the insurer, in error.
SUBMISSIONS
Claimant’s submissions
The claimant’s submissions filed with the application for merit review are dated 7 July 2022. The claimant says at [2] that the treatment in dispute was provided to the claimant while he was outside Australia but that the treatment and care was provided in Australia.
The claimant concedes at [7] that he is not an Australian citizen or a permanent resident of Australia. He says at [8] and [9] that treatment has been provided to him while he is outside Australia by Dr Angela Lam a medical practitioner in Lidcombe and psychologists and physiotherapists at Complete Allied Health Care in Chatswood.
The claimant asserts at [10] and [11] that the treatment providers are in Australia and that they provided the treatment by way of telehealth which is “approved as acceptable treatment by SIRA[8]”
[8] The State Insurance Regulatory Authority is the scheme regulator. The submissions do not point to any section of the MAI Act, clause of the Regulation or provision in the Motor Accident Guidelines that specifically approve telehealth.
The claimant refers to the case of ALV v NRMA Insurance[9] and a decision of Assessor Toohey and at [12]-[25] says this decision is authority for the payment of the interpreter’s invoices claimed in Mr Cha’s matter.
[9] [2020] NSWSIRADRS 105.
The claimant at [27]-[30] seeks costs in respect of this application and seeks costs outside the Motor Accident Injuries Regulation (the Regulation) under s 8.10(4) on the basis there are exceptional circumstances in the claim. These include 10 hours of legal work in the dispute.
The claimant also seeks a s 6.21 costs penalty of 25% on the basis of the unreasonable denial of liability and an allegation about a minor injury.
Insurer’s submissions
The insurer’s submissions lodged on 7 September 2022 with the reply form recount the factual background and cite the relevant sections of the MAI Act. The insurer then summarises at [6] the claimant’s argument that treatment provided by health practitioners in Australia to him while he is in Korea as being “treatment being provided in Australia” and not outside Australia. The insurer says at [7] its position is that the treatment is being provided outside Australia because the relevant location determining entitlement is that of the claimant, not that of the health practitioners.
The insurer says at [8] that the legislation is straightforward, and the intention is clear and refers at [9] to the corresponding section in the weekly benefits regime, s 3.21. The insurer refers to cl 4.67 in the Motor Accident Guidelines (the Guidelines) noting there is no equivalent clause in the Guidelines for treatment and care expenses. Clause 4.67 provides that for persons residing outside Australia, they must submit a certificate of fitness (and declaration of employment) from a “treating medical practitioner” every three months in order to continue to receive loss of earnings payments.
The insurer also relies at [10]-[13] on s 3.24 and says the treatment in question is not reasonable and necessary because:
(a) it is not reasonable for a claimant to seek telehealth services other than “to attempt to avoid the implications of section 3.33”;
(b) the treatment provider cannot see or examine the claimant in person, and
(c) interpreter services are not reasonable and necessary because if the claimant sought treatment in Korea from a Korean health practitioner no interpreter would be needed.
The insurer says at [14]-[16] that the claimant cannot rely on s 8.10 to justify the payment of interpreter expenses connected with treatment because that section relates to legal costs and expenses and at [18] that Schedule 2 cl 1(aa) is not relevant to the assessment of treatments expenses.
In terms of costs the insurer says at [19] that there was never an issue about minor injury and therefore the contents of [27] of the claimant’s submissions are irrelevant. The insurer says there is nothing exceptional about the matter to warrant a costs order under s 8.10(4)(b).
Preliminary conference report
After the first preliminary conference a report was issued to the parties on 21 September 2019. The parties were advised that in the absence of an agreement from the insurer that the consultations provided by telehealth are “medically” reasonable and necessary and related to the injuries sustained in the accident, a “medical decision” may need to be made about the disputed treatment at some stage.
I determined that I would proceed with the dispute concerning s 3.33 and leave any issue about the medical necessity or reasonableness of the treatment to be dealt with later if necessary.
I noted that in Mr Cha’s case, the real issue in dispute between the parties was, if Mr Cha is located overseas but his providers are located in Australia, are the telehealth consultations (and the related interpreting services) “treatment provided outside Australia”?
As I was not aware of any cases deciding the point or interpreting s 3.33, I asked for submissions concerning analogous areas of the law which might be of assistance.
Claimant’s further submissions[10]
[10] These are dated 30 September and form part of document AD2 in the Commission’s electronic file.
The claimant clarified at [9] that the issue in dispute concerns treatment provided (or to be provided) by providers in Australia while the claimant is residing outside Australia.
The claimant confirms at [10] that he departed Australia for Korea on 24 April 2019.
The claimant provided the copies of the disputed invoices and advised at [12] that the insurer had denied any future treatment including monthly attendances on Dr Lam for certificates of capacity, physiotherapy, psychotherapy and interpreting services.
The claimant argues at [14] that all the treatment providers and interpreters are in Australia and provide services in Australia and says at [15] that the purpose of s 3.33 was to avoid treatment and care being incurred by treatment providers “unregistered and unqualified to Australian medical standards; and to govern fees and invoices for services incurred that were outside the AMA rates.”
The claimant then says at [16] that it is unlikely that s 3.33 “was to prohibit and / or prevent a non-Australian citizen or permanent resident from obtaining treatment while they were outside Australia.”
The claimant notes at [17] that one of the objects of the MAI Act was to encourage the early and appropriate treatment of injuries to ensure injured persons recover and maximise their return to work[11].
[11] Section 1.3(2)(a) of the MAI Act.
The claimant refers at [19] to s 33 of the Interpretation Act1987 and says where the meaning of a section is unclear a construction should be adopted that promotes the purpose or object of the MAI Act and says that the more appropriate interpretation of s 3.33 would be:
“An injured person who is not an Australian citizen or permanent resident of Australia is not entitled to statutory benefits under this Division in respect of [any] treatment and care provided [by treatment and care providers] outside Australia.”
The claimant says that the purpose of telehealth is to benefit those in regional or rural areas to have a consultation with a health practitioner without having to travel to get it. The claimant says that with telehealth the claimant is “deemed” to have had the treatment at the practitioner’s premises.
The claimant points to the Australian Health Practitioner Regulation Agency’s (AHPRA) guidance to practitioners which says that “Health practitioners currently based overseas who want to keep providing services to patients in Australia” might consider using the telehealth technology.
The claimant says the lex fori is New South Wales and that the only available forum for hearing the dispute is in NSW.
The claimant repeats his claim for costs.
Insurer’s further submissions[12]
[12] These further submissions are dated 10 October 2022 and are found in document AD4 of the Commission’s electronic file.
In terms of jurisdiction the insurer refers at [3] to the case of Obeid v AAI Limited t/as AAMI[13] and submits that a merit reviewer only has power under Schedule 2(1)(r) to determine a dispute about treatment that has been provided but not treatment yet to be provided. The insurer states however that any decision made by me about past treatment would inform the insurer in relation to future treatment.
[13] [2022] NSWPICMP 76.
The insurer also says at [6] that the insurer now declines the treatment on the basis it is not reasonable and necessary and requests that should I find the claimant has an entitlement to treatment while he is in Korea, that I then refer the matter to a medical assessor to determine the medical assessment matter.
The insurer’s principal submission at [9] is that s 3.33 is focussed on the claimant and his location for the following reasons:
(a) a claimant who is an Australian citizen or permanent resident has no restriction placed upon them and can access treatment and care provided outside Australia;
(b) the section does not limit benefits based on the location of the treatment provider only to injured persons who are not Australian citizens or permanent residents who reside outside Australia;
(c) if the provision was aimed at the location of the provider of treatment, then the citizenship or residency of the injured person would be irrelevant, and
(d) if the location of the provider was the determiner, then it is “inexplicable” why there is a distinction between someone who is an Australian citizen or permanent resident and someone who is not.
The insurer also points at [11] to other matters which support the argument including:
(a) Medicare does not cover overseas expenses although there are reciprocal health care agreements;
(b) there are rules concerning telehealth, for example to be eligible for Medicare funded telehealth, the patient must have had a face to face consultation at the same practice in the year before the telehealth consultation;
(c) there are no specific rules relating to telehealth or care for patient’s overseas;
(d) the Australian Physiotherapy Association (APA) does have guidance to its members but suggests that someone practicing here and providing treatment overseas may be required to be registered in the other country and also suggests there may be insurance issues, and
(e) that the above supports an interpretation that telehealth services are provided to the claimant at the claimant’s location.
The insurer also notes at [19] that contract law suggests that the place, time and location of where a contract is made is where the acceptance of that contract was received. The insurer suggests that as treatment involves the giving of treatment by a health practitioner and the receiving of treatment by the claimant, if an analogy was made with the law of the formation of contracts, then treatment is provided where it is received and in this case that is where Mr Cha is residing.
The insurer also points at [22] to s 13B the Electronic Transactions Act 2000 NSW which provides that, in the absence of any agreement between two parties any electronic communication is dispatched from the originator’s place of business and received at the addressee’s place of business. The insurer says as with the law of contract formation there is an emphasis on where an electronic communication is sent from and where is its received and that therefore the claimant’s treatment ought be determined by where he receives the treatment not where the provider is located.
Finally, the insurer refers at [25] to the United Convention on Contract for the International Sale of Goods (Vienna Convention)[14] which deals with the formation of contracts between persons from different countries. The insurer refers to Article 15 which says that an offer is effective only when it reaches the offeree and under Article 18 the acceptance of that offer is only effective once it reaches the offeror. The insurer says that if this “was adapted to a service industry, such as the provision of medical services … this would be the equivalent of the services not being ‘provided’ until it had reached the patient”.
[14] Adopted in NSW by the Sale of Goods (Vienna Convention) Act 1986.
The insurer repeats its submissions on costs saying that there is nothing exceptional and that the 10 hours claimed is excessive.
Second preliminary conference
At the second teleconference[15] I asked the insurer to advise whether there was any issue concerning whether any of the invoices submitted were not treatment.
[15] On 12 October 2022.
Mr Cheng also informed me that his office advised the insurer on 1 May 2019 of the claimant’s return to South Korea[16].
[16] A request for a copy of that letter or communication was made. The insurer advised it had no such letter and the claimant has not provided a copy of it.
Ms Woodward drew to my attention to the disputed invoices noting there was nothing on them to suggest they concerned “telehealth” consultations. Ms Woodward also advised that the claimant’s address on Dr Lam’s invoices a Pymble (Sydney) address and that the two certificates of capacity issued after the claimant left Australia by Dr Lim gave the claimant’s address in Sydney.
Final responses
The insurer contacted the Commission on 13 October 2022 and advised that for the purposes of this assessment, it did not dispute that “the interpreter fees form part of the treatment costs”.
The claimant responded to the insurer’s submissions on 21 October 2022 and under the heading “jurisdiction” noted the insurer’s argument about whether the treatment in question is reasonable and necessary and requests that I refer the matter for medical assessment.
The claimant’s submissions then address the insurer’s Medicare and telehealth submissions noting:
(a) the information about Medicare may be incorrect as the website suggests “Medicare in general does not cover services received outside Australia”;
(b) in any event the Medicare system and the statutory benefits treatment system under the MAI are two different systems that cannot be compared;
(c) the information about the APA demonstrates that a physiotherapist may be regulated and held accountable by two different countries but does not govern whether treatment provided by telehealth is being provided outside Australia, and
(d) it may not be necessary to consider location in respect of telehealth and that a simpler approach would be to consider it as another type of consultation. The claimant says that for example a home visit would be a consultation “taken to have been provided, received and billed under the doctor’s medical practice”.
In relation to the analogy with contract law, the claimant says there is no international agreement or contract in place and that “the claimant is residing overseas [but] the treatment, the purpose and the invoice are subject to NSW, Australia”. If there was an international contract, then the claimant says only a NSW forum would have jurisdiction. The claimant also says that if a contract is formed where the acceptance is received then the contract concerning Mr Cha’s treatment was accepted at the location of the medical practice.
The claimant’s submissions then say that “treatment should be taken to have been provided and received no other than at the medical practice / clinic of the practitioner or treatment provider”. The claimant says that if the claimant had been in NSW with his treatment providers and a telehealth consultation had occurred “the treatment would have been provided, received and occurred as if the claimant had attended the medical practice and an invoice would have been rendered as if the claimant had attended.”
The claimant submits that Mr Cha’s telehealth consultations must be taken to have been provided and received at the practitioner’s location.
The claimant also submits that in a virtual hearing, the parties would be taken to have appeared before the Court where the court was sitting and not at the location of the party’s residence.
The claimant says the electronic transaction legislation is irrelevant but says if the analogy is accepted, treatment is received in Australia.
The claimant repeats his submissions on costs.
REVIEW OF THE EVIDENCE
The application for statutory benefits is dated 27 February 2019. The claimant provides a home address as a unit in Potts Hill (between Bankstown and Lidcombe) and says the accident occurred in Paynes Crossing (on the Broke Road in the lower Hunter Valley) on 17 February 2019 at 2.00pm. He describes the accident as follows:
“I was riding motorbike [registration number given] at approximately 40 km/ph and coming toward a right turn when I suddenly slipped and fell on my right side. As I was picking myself up … I was hit by motorbike registration [number given].”
The claimant lists his injuries as injury to neck, spine, back, shoulders, pelvis and hip, left wrist and fracture T4-T6.
There is a short letter from Dr Lam dated 15 March 2019 to the physiotherapist at Complete Allied Health Care in Chatswood requesting treatment for the claimant.
I have been given certificates of fitness dated 20 February, 18 April, 22 May and 17 June 2019. The last two certificates are signed and dated by the claimant and he gives his address as a unit in Pymble.
The insurer has provided a list of the statutory benefits paid to or on behalf of the claimant. These show:
(a) Mr Cha was paid weekly income replacement payments totalling $10,889.91 on the basis of a total incapacity to work between 7 April and 4 August 2019[17];
(b) treatment expenses totalling over $9,300 have been paid for services including interpreter services relating to treatment and rehabilitation, and
(c) the bulk of the treatment provided was from 1 March 2019 to 17 July 2019. There is then a gap until March 2022 when there are four GP consultations (23 March, 20 April, 7 May and 19 May 2022), three physiotherapy consultations (25 March, 28 March, 20 April 2022), an initial psychological consultation (14 April 2022) and six related interpreting expenses[18].
[17] See document AD6 in the Commission’s electronic file.
[18] The 2022 treatment paid for by the insurer totals $880.64 for the medical and allied health consultations and $970.20 for interpreting services.
The insurer has provided the three liability notices issued in this matter. The first, dated 8 March 2019 was sent to Mr Cha at a unit in Potts Hill and a copy was sent to his solicitor. This notice accepts the claim and accepts liability to pay statutory benefits for the first 26 weeks.
The second liability notice dated 27 May 2019 was sent to two email addresses (one for the claimant and the other for his lawyer). No street or postal address was included. This liability notice accepted the claimant had a minor injury but noted that enquiries were still being made (to obtain police documents) and therefore no decision was made as to fault.
There is a third liability notice dated 15 January 2021 also sent by email only to the claimant and his solicitor accepts liability and concedes the claimant is not wholly or mostly at fault.
The claimant’s representative at the second teleconference had informed me that the claimant had notified the insurer on 1 May 2019 of Mr Cha’s return to Korea on 24 April 2019. I requested but did not receive from either party a copy of any communication from 1 May 2019 advising the claimant had left Australia.
The insurer has also provided an email from the claimant’s solicitors dated 6 May 2019 which notified NRMA of the claimant’s change of address to a unit in a block of apartments in Pymble, Sydney.
I have now been provided with a series of emails commencing with one from the insurer on 28 January 2022 advising the claimant’s solicitor of a medico-legal appointment on 18 March 2022. On 3 February 2022 the claimant’s solicitor informed the insurer that “our client is currently in Korea and has no plan to come back to Australia at the moment due to the pandemic”[19]. The inescapable conclusion of these emails is that the first notice the insurer received in relation to the claimant’s overseas residency is the email of 3 February 2022.
CONSIDERATION OF THE ISSUES
[19] The email chain is document AD13 in the Commission’s electronic file.
Should this dispute be determined now?
The claimant says that the proceedings now involve a medical assessment matter because the insurer has denied the treatment on the basis it is not reasonable and necessary. The claimant says I should refer the matter for medical assessment.
There are many disputes that may arise in respect to treatment under the MAI Act. There may be a dispute about the cost of treatment (a merit review matter). There may be a dispute about whether the treatment is reasonable and necessary or caused by the accident (a medical assessment matter). There may be a more fundamental dispute, as there is in this case, about whether the claimant has an entitlement to treatment in accordance with s 3.33 (a merit review matter).
In Mr Cha’s case there are two disputes about his 2022 treatment, a dispute about entitlement to treatment under s 3.33 and now a dispute about whether it is reasonable and necessary under s 3.24. The former is a matter for me to decide and the latter is a matter for a medical assessor to decide.
Bearing in mind the decision I make will be whether Mr Cha is entitled to statutory benefits for any treatment overseas, I am of the view I should decide the entitlement issue first. If I decide he is entitled to statutory benefits for treatment while he is overseas, then a medical assessor can determine whether any or all of that treatment is reasonable and necessary. If I determine Mr Cha is not entitled to statutory benefits for the disputed treatment, then there is no need for a medical assessor to determine anything.
Issues of power and what can be determined
The claimant seeks a decision about treatment that has occurred while he has been in Korea and invoices rendered for it as well as treatment that has not yet occurred but will be incurred while he remains in Korea. The insurer says I have no power to determine any dispute about whether the claimant has an entitlement to future treatment.
In the decision in Obeid, a Medical Review Panel determined that Schedule 2(2)(b) of the MAI Act gave medical assessors power to determine whether treatment “provided” to a claimant was reasonable and necessary but that it (and medical assessors) had no power to determine disputes about future treatment that is treatment that had not yet been provided.
The clause was subsequently amended to enable medical assessors and panels to determine disputes about treatment provided and treatment “to be provided” under s 3.24. However there was no amendment to Schedule 2(1)(r) and the clear wording of that clause is that a merit reviewer only has power to determine disputes about treatment that has been provided.
In my view therefore, I can only consider the five invoices for treatment totalling $772.60 as that treatment has already been provided.
The claimant raises issues of lex fori which are not relevant. There is no dispute between the parties that the Commission has power to determine disputes under s 3.33 between a citizen of another country and a third-party insurer of this state in relation to treatment disputes that arise in connection with a motor accident claim.
Is interpreting and telehealth treatment?
The claimant’s original submissions stated that telehealth treatment is approved by the regulator as acceptable treatment and relied on the decision of ALV to support a submission that interpreter invoices should also be allowed.
Noting that the insurer has conceded the interpreter’s fees form part of the treatment in this matter, it is unnecessary to further consider this point. I do note however that the ALV decision was a decision concerning the interpretation of legal advice given in the course of a claim and did not concern translation or interpreting in connection with an allied health or medical consultation.
The claimant did not take me to any provisions in the MAI Act, or the Motor Accident Injuries Regulation or the Motor Accident Guidelines to support the statement that the regulator accepts telehealth as treatment however the insurer has never argued that telehealth is not treatment.
In the light of the insurer’s concession, and in any event, telehealth (and interpreting services which enable the claimant to participate in telehealth) is treatment within the meaning of ss 3.24 and 3.33. It is a well-recognised valid way for a health practitioner to consult with a patient and provide a medical service including advice.
Where is telehealth treatment provided?
Mr Cha says the treatment is provided to him in Australia because the treatment is provided by Australian health practitioners in Australia.
The insurer says the treatment is provided to Mr Cha in Korea because that is where he is living and receiving the treatment.
There is no issue that the treatment in dispute has been offered, given or dispensed in Australia and accepted, taken or received by someone who is outside Australia.
The insurer’s submissions use analogies from national and international law relevant to the formation of contracts and the legislation surrounding electronic transactions. Where there are two parties in two different locations, contracts between them are formed where and digital transactions occur when the acceptance of an offer is communicated and received.
The claimant gave the example of the virtual hearing suggesting the parties appear before the court where the court was physically sitting and not at the location of where the party is. I agree, but I do not think this assists the claimant. A witness gives evidence to the court remotely, but they give that evidence from their location to the court, and the judicial officer receives that evidence at the court’s location.
The claimant argued that with telehealth the claimant is “deemed” to have had the treatment at the practitioner’s premises. The claimant has not taken me to any legislation, delegated legislation or case law that provides for the deeming of a location of treatment provided by telehealth means. He later says that if the claimant had been in NSW and a telehealth consultation had occurred the treatment would have been “provided, received and occurred as if the claimant had attended the medical practice and an invoice would have been rendered as if the claimant had attended”. I disagree with this submission in respect of the invoice. The Medicare website which both parties have taken me to suggests that there is a particular scheduled or itemised fee for telehealth consultations that differs from a face to face consultation fee. Medicare clearly distinguishes between the two.
The claimant said a telehealth consultation is no different from a home visit and says the doctor provides treatment during that home visit and it is received and billed under the doctor’s medical practice. I do not agree with that submission. A home visit by a practitioner to a patient results in the practitioner leaving their rooms and treatment being provided to the patient in their home. The treatment in that case is not treatment provided by the doctor in their surgery, but treatment provided at the patient’s bedside.
I also do not agree that treatment is provided from where the practitioner issues the invoice or bill for it, or where his or her practice is. For example, if an experienced neurosurgeon travels to London to conduct an operation on a patient in Harley Street and returns home to issue an invoice from rooms in Macquarie Street, it would be difficult to argue that the neurosurgeon had provided treatment in Australia. The treatment was provided where the operation was performed, in the UK.
Both the insurer and the claimant considered the rules surrounding Medicare and what the APA and AHPRA recommends. They adopt and recommend telehealth as a way of providing treatment and the APA acknowledges the issue of whether telehealth treatment is provided where the practitioner is or where the patient is, but none of those organisation have had to decide the issue or published information that answers the question.
Treatment is a very general term. It can involve the physical in person provision of a service such as stitching a laceration or a chiropractor manipulating a spine. It can involve the process of referring a patient to a specialist or for a diagnostic test and the consideration of the specialist advice and test results. It might involve the drawing of a prescription. It might even simply involve giving lifestyle advice to reduce the risk of chronic disease. But treatment of whatever nature and in whatever form involves two people, the health practitioner and the patient. One gives the treatment and the other receives it. Together, it is my view that the giving and the receiving of treatment constitutes the provision of treatment.
In my view, treatment is provided when it is received, not when it is given, dispensed or dispatched and telehealth is no different. To give an example if Dr Lam was on her computer and speaking to an empty room because Mr Cha had stepped away from his computer, she could not in my view be providing treatment to Mr Cha at that moment. Similarly, if Dr Lam was on her computer and Mr Cha on his but the connection between them was so poor that neither could hear and understand each other that could not, in my view, be providing treatment.
Treatment by a health practitioner is a service from that health practitioner designed to provide a benefit to the patient and in my view, treatment is provided when and where it is received.
How should s 3.33 be interpreted?
Mr Cha was injured in a motor accident In New South Wales. If he was an Australian citizen or permanent resident, he would be entitled to reasonable and necessary accident-related treatment and care benefits wherever he resided or visited, be that in Australia or elsewhere. Section 3.33 of the MAI Act would not be relevant in that case.
Mr Cha is not an Australian citizen or permanent resident. If he had remained living in Australia, he would be entitled to reasonable and necessary accident-related treatment and care benefits. Section 3.33 would not be relevant if he obtained treatment and care from Australian-based providers while he was living in Australia[20].
[20] If Mr Cha was living in Australia but seeking treatment from Korean-based practitioners or Australian practitioners holidaying or based in Korea s 3.33 might be relevant if the interpretation of the phrase “treatment and care provided outside Australia” is “treatment and care provided [by practitioners who are] outside Australia”.
Mr Cha’s treatment by any Korean health practitioners whilst he is in Korea would clearly not by covered and payable by the insurer because in accordance with s 3.33 both the practitioner and the patient are “outside Australia”. The provision of treatment (the giving and receiving of it) occurs in Korea.
In the matter before me Mr Cha is living in Korea but seeking treatment from Australian based practitioners who remain in Australia provided by way of telehealth. The dispute between the parties is a dispute between two interpretations of the phrase “treatment and care provided outside Australia” as follows:
(a) the claimant says it should be interpreted as “treatment and care provided [by practitioners who are] outside Australia”, and that Dr Lam and others are in Australia, and
(b) the insurer which says it should be interpreted as “treatment and care provided [to injured persons while those persons are] outside Australia and the claimant is outside Australia.
The current approach to statutory interpretation requires consideration of the context and purpose of the legislation rather than a literal approach to the interpretation of the particular words of the statute. The claimant referred to s 33 of the Interpretation Act 1987 which refers to purpose and of course s 1.3(4) of the MAI Act states when interpreting a provision of the Act, a construction should be adopted that promotes the objects of the Act. One of those object is to provide for early and appropriate treatment (s1.3(1)(a)). The claimant says his interpretation of s 3.33 promotes that object saying that s 3.33 was not meant to prohibit someone from obtaining treatment while outside Australia. In my view, s 3.33 does not prevent anyone from getting treatment. It prevents an insurer from having to pay for certain overseas treatment or prevents some claimants from getting their overseas treatment paid.
But there are other objects in particular s 1.3(2)(d) “to keep premiums … affordable” and a recognition in s 1.3(3)(c) that the premium pool is finite and that setting premiums requires “a large measure of stability and predictability”. I agree with the claimant that one of the purposes of s 3.33 might be to avoid treatment and care being incurred by providers not registered or qualified in Australia and whose fees and services might be outside rates set in this country.
In my view, having determined that Mr Cha’s treatment was provided to him where he received it, the answer to the question of how s 3.33 should be interpreted is straightforward. Dr Lam’s treatment and the related interpreters’ fees were provided to Mr Cha where he received it in Korea. Therefore, Mr Cha cannot recover the cost of that treatment because he is not entitled to do so under s 3.33.
My view on that interpretation is strengthened by considering the wording of cl 2(r) of Schedule 2 to the MAI Act. The clause specifically mentions a merit reviewer’s power to determine “whether treatment … provided to the injured person has been provided while the person is residing outside Australia”. The emphasis there is on the person residing beyond the shores of this country.
I also note the provisions of s 3.21. When I consider ss 3.21, 3.33 and cl 2(r) of Schedule 2, the purpose of those sections in the context of a compulsory scheme of insurance where affordability is recognised, is to provide limits to the statutory benefits that can be recovered to people residing overseas. The language of the two provisions is not perfectly harmonious in that s 6.21 refers in the heading and the section to where the claimant is “residing” whereas s 6.33 only refers to matters of residence in the heading. However, there is a clear legislative purpose and intent in my view to restrict statutory benefits generally on the basis of where the claimant is residing and in particular restricting treatment and care benefits for injured persons such as Mr Cha.
The five invoices in dispute refer to treatment given to Mr Cha in Australia but received by him in Korea. As I have found that treatment is provided when and where it is received, it follows therefore that the insurer’s decision to refuse to pay the five invoices for treatment referred to in paragraph 13 is affirmed.
Costs
Submissions
The claimant makes an application for costs on two bases:
(a) there are exceptional circumstances in the claim that warrant a determination of costs under s 8.10(4) of the MAI Act, and
(b) there should be a penalty imposed on the insurer for the unreasonable denial of liability in accordance with s 6.21 of the MAI Act.
The insurer has not disputed that the claimant is entitled to costs whether he is successful or not and neither party has made any submissions concerning the provisions in the Regulation.
Who has the power to determine and assess costs?
In the decision of Allianz Australia Insurance Limited v Rymer[21] a Merit Review Panel determined that a merit reviewer has no power to permit costs outside the Regulation under s 8.10(4) of the MAI Act because that is a power that vests only in the Commission and the Commission, in accordance with s 31 of the Personal Injury Commission Act 2021 NSW is constituted by one or more division members. Merit reviewers are not members of the Commission but decision makers under s 32 who have not been given the function of permitting costs under s 8.10(3) and (4).
[21] [2022] NSWPICMRP 6 (Rymer).
Section 6.21 gives the Commission power to impose a costs penalty for the unreasonable denial of liability and the finding in Rymer would therefore apply.
The MAI Act has been amended, after the Rymer case was decided, by the insertion of s 7.13A thereby enabling a merit reviewer to assess costs however it is not clear whether that amendment extends to the function of permitting costs under s 8.10(3) and (4).
I hold dual appointments both as a merit reviewer and a member, therefore to avoid any further delay or disputation I am of the view that I should determine, as a member of the Commission:
(a) whether to award the claimant any costs;
(b) whether to permit the claimant to recover costs from the insurer under the Regulation or outside the Regulation on the basis there are exceptional circumstances in the claim;
(c) whether to impose a costs penalty under s 6.21, and
(d) the amount of the costs the claimant is permitted to recover from the insurer.
My assessment of costs
As the claimant has lost is he entitled to costs?
Justice Wright in AAI Limited t/as GIO v Moon[22]said at [82]. “There is nothing in s 8.10 or any other provisions of the MAI Act that suggests that a claimant’s entitlement to recover legal costs under s 8.10 depends on whether or not the claimant was successful before the DRS”.
[22] [202] NSWSC 714.
Therefore, Mr Cha can recover legal costs although he has failed in the proceedings before me. Whether he should recover legal costs is a matter for my discretion.
Is he entitled to costs under the Regulation?
Section 8.10(2) and (3) says that a claimant is entitled to recover from the insurer the reasonable and necessary costs incurred if payment of those costs is permitted by the Regulation.
The Motor Accident Injuries Regulation provides a scheme of limited and set amounts for costs.
Schedule 1, Part 1, cl 1(1) of the Regulation provides that a maximum amount of 16 monetary units (currently $1,800) can be awarded for a “regulated merit review matter”.
There are currently 25 merit review matters declared in Schedule 2(1) of the MAI Act however only nine of those are “regulated merit review” matters listed in Schedule 1, Part 1, cl 1(2).
Disputes under s 3.33 are not one of the nine regulated merit review matters and therefore no costs are recoverable by the claimant from the insurer under the Regulation for the current proceedings.
Is the claimant entitled to costs outside the Regulation?
Section 8.10(3) says that a claimant is entitled to recover from the insurer the reasonable and necessary costs incurred if payment of those costs is permitted by the Commission. Section 8.10(4) says the Commission may permit costs if the claimant is under a legal incapacity or “exceptional circumstances exist that justify payment of legal costs incurred by the claimant”.
As I said at the outset, the issue in dispute in this matter was a novel one having not been the subject of any decision of the courts, the Commission or the Commission’s predecessor that I have been taken to. While the amount of treatment provided and in issue was small, there is a suggestion that there is more treatment disputed or to be provided. The claimant was required to provide submissions, and did so on three occasions. The proceedings required two teleconferences, one longer than the other however the matter was determined on the papers.
For the above reason, I am of the view that I should permit the claimant to recover the reasonable and necessary costs associated with the current proceedings and that there are exceptional circumstances.
Is the claimant entitled to a costs penalty?
Section 6.21 provides for a costs penalty “if an insurer denies liability (whether for part or all of a claim) … [and it is found] that there was no reasonable basis for the denial of liability”.
The claim in question is a claim for statutory benefits and NRMA has denied liability to pay for part of that claim, namely the five invoices for past treatment and any future treatment provide to the claimant while he is in Korea.
However, as I have found in favour of the insurer and that NRMA was correct in denying that liability, there is no question of the claimant being entitled to the penalty.
What is the amount of costs assessed?
The totality of the claimant’s submissions do not claim a specific amount and do not identify any disbursements. The claimant’s submissions of 30 September 2022 say at [46]:
“It is submitted that no less than 10 hours of legal work has been performed in obtaining instructions, reviewing decisions, conducting investigations, researching and preparing for complex issues. We request consideration as to the decision and rates as outlined in AFH v AAI Limited trading as GIO [2019] NSW PIC CA 134.”
The case of AFH was a decision of Claims Assessor Susan McTegg (as she then was) and the hourly rate she determined was at [92] $306.
This suggests to me the claimant is seeking the sum of at least $3,060.
I do not think that sum is reasonable for the following reasons:
(a) there is no detail of the work done in this matter or an indication of whether it was done by the Principal of his firm or an employed solicitor or a paralegal;
(b) the application filed by the claimant was deficient in that there was no copy of the claim form, liability notices and in particular no copies of any of the invoices in issue necessitating the making of directions and the holding of a further teleconference, and
(c) the claimant’s submissions were repetitive.
In my view I should allow the claimant to recover from the insurer costs in the sum of $1,800 (plus GST) which is in my view a reasonable amount equivalent to the regulated sum which is fair and reflects the necessary work done in the matter.
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