Faris v Insurance Australia Limited Trading as NRMA Insurance
[2021] ACAT 6
•2 February 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FARIS V INSURANCE AUSTRALIA LIMITED TRADING AS NRMA INSURANCE [2021] ACAT 6
MAI 2/2020
Catchwords: MOTOR ACCIDENT INJURIES – treatment and care expenses – whether necessary and reasonable – whether injury sustained in the motor accident – referral to specialist – Motor Accident Injuries (Treatment and Care) Guidelines 2019 – requests for additional information from a treating practitioner
Legislation cited: Motor Accident Injuries Act 2019 ss 110, 112, 113, 120, 121
Subordinate
Legislation: Motor Accident Injuries (Treatment and Care) Guidelines 2019Cases cited:Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Mason v Demasi [2009] NSWCA 227
Tribunal: Presidential Member T Kyprianou
Date of Orders: 2 February 2021
Date of Reasons for Decision: 2 February 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 2/2020
BETWEEN:
LINA FARIS
Applicant
AND:
INSURANCE AUSTRALIA LIMITED TRADING AS NRMA INSURANCE
Respondent
TRIBUNAL: Presidential Member T Kyprianou
DATE:2 February 2021
ORDER
The Tribunal orders that:
1.Pursuant to section 112(1)(a) of the Motor Accident Injuries Act 2019 the respondent to pay the cost of an initial assessment of the applicant by Dr Tack-Tsiew Lee for the condition of deviated nasal septum.
………………………………..
Presidential Member T Kyprianou
REASONS FOR DECISION
1.The applicant, Ms Lina Faris, has made an application dated 25 September 2020, for review of the respondent insurer’s decision under the Motor Accident Injuries Act 2019 (MAI Act).
2.The decision the applicant seeks review of is a decision of the respondent dated 8 September 2020 denying liability for the cost of an initial assessment by Dr Tack-Tsiew Lee, an ear nose and throat medical specialist, of an alleged injury to the applicant’s nasal septum.
Background
3.The applicant was involved in a motor vehicle accident on Eucumbene Drive, Duffy in the Australian Capital Territory on 27 February 2020 (February 2020 accident). She was the driver of a motor vehicle which was hit from behind by a vehicle driven by Saba Al Kinani. Ms Al Kinani’s vehicle was insured for third party injuries by the respondent.
4.The applicant submitted a claim to the respondent dated 17 March 2020 for defined benefits under the MAI Act. The respondent accepted liability for that claim.
5.In an email dated 22 July 2020 addressed to the respondent, the applicant requested that the respondent approve payment for a consultation with an ear nose and throat (ENT) specialist for an injury to her nose she alleged occurred when she hit her face on the dashboard at the time of the February 2020 accident.
6.The applicant has been involved in two previous motor vehicle accidents as a result of which she was injured. The previous accidents occurred on 1 December 2014 (the 2014 accident) and 19 July 2018 (the 2018 accident). The applicant disclosed these accidents in the Notice of Claim she lodged with the respondent on 17 March 2020. The documents lodged with the Tribunal by the respondent reveal that as a result of the 2014 accident the applicant claimed that she had suffered a septal deviation and underwent surgery for septal reconstruction, performed by Dr Safi Albekaa in 2017. In a report dated 16 August 2019 included in the documents filed by the respondent, Dr M Mourad, orthopaedic surgeon, reported that the applicant told him that in the 2018 accident she hit her face on the dashboard leaving her with a bruised and bleeding nose and sore neck.
7.By letter dated 25 August 2020 the respondent advised the applicant that it would not pay the cost of the referral to an ENT specialist (the 25 August 2020 decision).
8.The applicant sought internal review of the 25 August 2020 decision. The internal review affirmed the original decision on 8 September 2020 (the internal review decision).
Relevant legislative provisions of the MAI Act
9.Section 110(1)(a)(i) of the MAI Act provides that ‘treatment and care’ of a person injured in a motor vehicle accident includes medical treatment. The respondent agrees that the consultation with Dr Lee that the applicant seeks payment for is ‘treatment and care’ as defined by section 110(1) of the MAI Act.[1]
[1] Respondent’s submissions dated 30 November 2020 at [4]
10.Section 112(1)(a) of the MAI Act provides that a person injured in a motor vehicle accident is entitled to treatment and care expenses.
11.Section 113 of the MAI Act relevantly provides that, for the purposes of Chapter 2, in which section 112 is located, ‘treatment and care expenses’ does not include expenses incurred for treatment and care:
(i) that was not reasonable and necessary; or
…
(ii) that did not relate to a personal injury sustained in the motor accident
[…]
12.Section 120 of the MAI Act provides that:
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.
13.The Motor Accident Injuries (Treatment and Care) Guidelines 2019 (MAI Guidelines), made under section 487 of the MAI Act, provide guidance about approving and making payments for treatment and care benefits. Relevantly, Guideline 3.1.1 provides that an insurer may ask for an assessment of an injured person’s injuries to make a decision about the approval of treatment and care expenses or to determine whether, or the extent that, the person’s injuries resulted from a motor accident.
14.Guideline 3.1.3 provides that to minimise the frequency of attendance at medical appointments by an injured person, an insurer should, if appropriate, first request additional information from a treating practitioner prior to requesting an assessment of an injured person’s injuries.
Documents and submissions considered in reaching the decision
15.In reaching this decision I have had regard to the documents filed with the Tribunal by the respondent under cover of a letter dated 16 October 2020, as well as the further documents filed by the respondent by email dated 29 October 2020 in response to a request for further documents made by the Tribunal dated 21 October 2020. These documents have been served on the applicant by the respondent.
16.I have also had regard to the respondent’s submissions dated 30 November 2020.
17.The applicant was provided with an opportunity to file submissions in support of her application by order dated 18 November 2020, but she did not do so.
Analysis of the evidence and findings
18.The respondent submitted that the Tribunal should affirm the respondent’s internal review decision for two reasons.[2] First, because how the applicant has alleged she injured her nose is implausible. Second, because there is a total absence of contemporaneous evidence of any nasal injury across multiple sources. The respondent submitted that both of these grounds lead to the conclusion that the applicant did not sustain any personal injury to her nose in the accident.
[2] Respondent’s submissions dated 30 November 2020 at [14], [25]
19.I have not accepted the respondent’s submissions for the reasons below.
20.Though the applicant has not nominated an injury to her nose specifically in any document other than in her email of 22 July 2020, in which she sought approval for an initial consultation with Dr Lee, she has made mention of an injury to her head on a number of previous occasions. These mentions were recorded in a number of documents prior to 22 July 2020.
21.Specifically, the records from the Emergency Department of The Canberra Hospital, dated 27 February 2020 where the applicant was taken by ambulance from the scene of the accident, state that she hit her head, neck and that she had a right-sided headache. According to the Canberra Hospital records, a CT scan of various parts of her body including the head and chest was arranged according to these notes. However, the CT scan report itself is not amongst the documents available to the Tribunal.
22.The discharge letter from the hospital addressed to Gunghalin Medical Practice dated 27 February 2020 records the diagnosis as unspecified headache and reports that the applicant had a head strike and chest strike and that she suffered loss of consciousness.
23.The hospital notes do not record that the applicant reported striking her nose or her face as distinct from any other part of her head. However, the notes support that the applicant reported that she struck a part of her head on the day of the accident. Further, the fact that she reported striking her chest tends to suggest that she had a forward strike of her head, rather than a backward one.
24.The ambulance case slips dated 27 February 2020 record that the applicant suffered no bleeding and no altered conscious state. They record bruising and haematoma, but not the parts of the body where those injuries were observed. The recording of lack of bleeding and loss of consciousness is inconsistent with the applicant’s reporting at a later time that she suffered a blood nose and loss of consciousness immediately following the accident and before the ambulance service arrived. However, this inconsistency is not determinative of whether the applicant suffered an injury to her nose. As it has been held in a number of cases, clinical notes should be treated with caution for a variety of reasons.[3] It is plausible in this case that the applicant did not report the symptoms she suffered prior to the arrival of the ambulance, but rather the symptoms she was suffering when she was asked to describe her symptoms. It is not evident from the records what question the applicant was asked when she provided the information recorded. As noted in Huseyin at [8], medical histories are taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort.
[3] See e.g. Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]; Mason v Demasi [2009] NSWCA 227 at [2]
25.In the Notice of Claim Form completed by the applicant and dated 17 March 2020, the applicant reported that she hit her face and head on the dashboard and that she suffered bleeding from her nose which she wiped dry before the ambulance arrived. The medical report accompanying the claim form completed by Dr Jamiel, dated 2 April 2020, records head strike and chest strike, headache and loss of consciousness. Though that medical report is not entirely consistent with a facial/nose injury, nor is it inconsistent with the applicant’s other reports that she struck her nose as a result of the accident.
26.The respondent’s submission that there is a total absence of contemporaneous evidence of any nasal/facial injury for months following the accident across multiple sources is therefore rejected. Though it is true that there are no notes supporting a nasal injury report by the applicant prior to 17 March 2020, the records support that she reported a forward head strike caused by the accident on the day of the accident and a nasal injury by 17 March 2020.
27.Also I cannot accept the respondent’s submission that it is implausible that the applicant hit her head forward as a result of the collision because she was wearing a seatbelt at the time of the accident. It is more likely, given the applicant was the driver when her car was struck from behind, that if she struck her face at all, she would have hit the steering wheel rather than the dashboard as she has reported. However, I do not accept that because she reported she was wearing a seatbelt at the time of the accident it would have been implausible for her to hit her head forward.
Applicant’s pre-existing nasal injury
28.It is evident from the documents filed with the Tribunal that the applicant suffered a septal deviation injury in the 2014 accident. In October 2017 Dr Albekaa, an ENT specialist, reported that she had recovered quite well from the 2017 surgery, and that her nasal bleeding had significantly improved.
29.The applicant was involved in a further accident in 2018. She was the front passenger in the 2018 accident. She reported to Dr Mourad, orthopaedic surgeon, whom she saw at the request of the third party insurer on 9 August 2019, that as a result of that collision, her face hit the dashboard, leaving her with a bruised and bleeding nose, amongst other injuries. She reported further that she blacked out for one or two minutes following the collision. This history is very similar to the history provided by the applicant in relation to the nasal injury she alleges she has suffered in the February 2020 accident. This similarity in the description of how her nasal injury occurred raises questions as to whether the applicant could have been unlucky enough to have injured her nose in the same way in two motor vehicle accidents, or whether it is possible that consciously or subconsciously she has meshed the circumstances of the two accidents into one incident. It is not possible to answer this question without extensive questioning of the applicant and some expert evidence on whether there is an identifiable injury to her nose which did not predate the February 2020 accident.
30.The dispute, which is the subject of the application for review in these proceedings, relates to the cost of a consultation with an ENT specialist for an opinion as to whether the applicant’s complaint of nasal injury is a result of the February 2020 accident.
31.This dispute does not, in my opinion, warrant the resources of holding a hearing which would be necessary if the applicant was to be cross-examined.
32.The evidence contained in the documents filed with the Tribunal supports that the applicant has reported a head injury from the day of the February 2020 accident on a number of occasions which she believes has caused her nasal injury. Given her previous history of nasal injury, the alleged injury may or may not be an exacerbation or aggravation of her earlier injury.
33.The documentary evidence also supports that the applicant’s treating GP, Dr S Zafreen, provided her a referral on 21 July 2020 to be examined by an ENT specialist, Dr Lee. All that the letter of referral states in relation to the reason for referral is that Dr Lee’s opinion and management is sought. Under the heading ‘Past History’, the referral sets out, amongst a whole lot of other events and conditions, that the applicant suffered a nasal fracture as a result of a motor vehicle accident on 1 December 2014. It also states that she was involved in motor vehicle accidents on 19 July 2018 on 27 February 2020.
34.The letter of referral is unclear as to whether or not Dr Zafreen is of the view that the injuries the applicant suffered in the February 2020 accident may have contributed to a nasal injury requiring the opinion sought by the referral. Dr Zafreen has listed the February 2020 accident under past history, which tends to suggest that she perhaps considers it to be relevant. On the other hand, she has also listed a number of other conditions the applicant has presumably reported in recent times to her which are plainly not relevant to a nasal injury.
Factors to be considered in determining whether the cost of the consultation is payable
35.Sections 112(1)(a) and 113(b) of the MAI Act when read together have the effect that the respondent may refuse to reimburse the expense of the consultation with Dr Lee if it is not a reasonable and necessary expense for the applicant to incur, or it did not relate to a personal injury sustained in the motor vehicle accident. If neither of these exclusions apply, the applicant is entitled to payment of the consultation fee with Dr Lee.
36.Section 120 of the MAI Act sets out the factors that the respondent must consider in deciding whether treatment and care, such as the consultation with Dr Lee, is reasonable and necessary. Those factors include the MAI Guidelines.
37.The MAI Guidelines, issued by the MAI Commission on 31 October 2019, provide guidelines for the conduct of an assessment of an injured person’s treatment and care needs under section 121 of the MAI Act. Guideline 3.1.1 relevantly provides that an insurer may ask for an assessment of an injured person’s injuries to:
· make a decision about the approval of treatment and care expenses
· resolve a dispute about a person’s treatment and care needs, or
· determine whether, or the extent that, the person’s injuries resulted from a motor accident.
38.Guideline 3.1.3 provides that, to minimise the frequency of medical appointments for an injured person, an insurer should, if appropriate, first request additional information from a treating practitioner prior to requesting an assessment of an injured person’s injuries.
39.These Guidelines make it clear that where there is doubt about an injured person’s entitlement to payment for a treatment expense, the insurer should request additional information from the treating practitioner or an independent medical assessor. In this case, the doubt about the applicant’s entitlement to the reimbursement of the cost of the consultation with Dr Lee arose because the respondent had doubts as to whether the alleged injury which was to be the subject of the consultation was sustained during the February 2020 accident. These doubts, which were not unreasonable, were based partly on the applicant’s medical history including earlier nasal injuries and concerns about the applicant’s credibility. As a result of the initial rejection of liability for the cost of the consultation a dispute arose between the applicant and the respondent about the applicant’s care and treatment needs.
40.The available medical evidence is scant and unclear as to whether the applicant’s treating GP considers that the applicant needs to be assessed by an ENT specialist because of a possible injury she suffered in the February 2020 accident.
41.In these circumstances, it would have been appropriate for, the respondent to have sought additional information from the referring medical practitioner, Dr Zafreen, or another independent medical specialist. The MAI Guidelines contemplate this approach. Had the respondent done so, there would have been more relevant and useful information to assist the respondent and ultimately the Tribunal to ascertain whether the alleged injury resulted from the February 2020 accident and whether the cost of a specialist consultation to assess the alleged injury is reasonable and necessary. While not directly relevant to the merits of this application, I also note that obtaining the additional information was likely to have been much more cost effective to the parties insofar as it may have avoided the application which led to these proceedings.
42.In the absence of any further medical evidence the Tribunal is left with a letter of referral for the consultation from the applicant’s GP which makes mention of the February 2020 accident and the applicant’s assertion that she did strike her face/nose in that accident. This evidence coupled with the relatively small cost of the treatment and care expense the applicant seeks is sufficient to allow the applicant the benefit of the cost of the consultation with Dr Lee so that he can provide his opinion as to whether the February 2020 accident caused her further injury to her nasal septum.
Order
1.Pursuant to section 112(1)(a) of the Motor Accident Injuries Act 2019 the respondent to pay the cost of an initial assessment of the applicant by Dr Tack-Tsiew Lee for the condition of deviated nasal septum.
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Presidential Member T Kyprianou
Date(s) of hearing On the papers Applicant: In person Solicitors for the Respondent: Sparke Helmore Lawyers.
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