Jo v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 204
•28 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Jo v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 204 |
| CLAIMANT: | Heejean Jo |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 28 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; miscellaneous claims assessment matter about whether interpreting services are “treatment and care”; claimant non-English speaker/reader; Held – interpreting services are not a form of “treatment and care” as defined in section 1.4; “the reasonable cost of treatment and care” in section 3.24(1)(a) extends to interpreting services being costs incidental to, and integral part of, provision of treatment and care to non-English speaking claimant; interpreting expenses payable for reasonable and necessary and related treatment (medical assessment matter); whether interpreter needed is question of reasonableness (merit review matter); costs of $1,000 awarded; cases referred to; AAI Limited t/as GIO v Moon regarding “incurred”; Fowler v Youi Pty Limited regarding context and purpose of definition; Qantas Airways Limited v Chief Commissioner of State Revenue, and Phonographic Performance Company of Australia Limited v Federation of Australian Commercial Television Stations regarding statutory interpretation generally; Cha v Insurance Australia Limited t/as NRMA Insurance regarding provision of treatment. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 and Schedule 2(3)(n) of the Motor Accident Injuries Act 2017 (the Act), the Commission’s assessment is: 1. The provision of interpreter services to a claimant, is part of a claimant’s treatment and care within the meaning of s 3.24(1), where that treatment and care is agreed by the parties or determined by a medical assessor to be reasonable and necessary in the circumstance and related to the injuries caused by the accident. 2. Whether the provision of interpreter services to Heejean Jo for the 17 consultations with Dr Lam and Better Life Allied Health is not a medical assessment matter but is a merit review matter being a dispute about the “reasonable cost of treatment and care”. 3. The claimant is entitled to costs assessed in the sum of $1,100 including GST. A statement setting out the Commission’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Heejean Jo was involved in a motor accident on 7 February 2024 when the vehicle she was driving was hit from behind. Ms Jo says she sustained neck, back, shoulder and knee injuries in the accident and developed psychological sequelae as a result of the accident.
Ms Jo made a claim with NRMA, the insurer of the vehicle that Ms Jo says caused her accident and her injuries. NRMA paid Ms Jo benefits, including treatment and care benefits, for the first 52 weeks after the accident. The insurer has denied liability to pay statutory benefits beyond that date.
Three disputes have arisen in connection with the claim, and these have been referred by the claimant to the Personal Injury Commission (the Commission) for determination and assessment in a single set of proceedings as follows:
(a) a threshold injury dispute which has been referred for medical assessment. Examinations have been arranged on 12 May 2025 with Medical Assessor Home for assessment of the claimant’s physical injuries and on 15 May 2025 with Medical Assessor Fukui for assessment of the claimant’s psychological injuries;
(b) a dispute about a physiotherapy after 6 December 2024 and a consultation with Dr Herald, orthopaedic surgeon (also referred to the Medical Assessor Home), and
(c) a dispute about interpreting services in connection with treatment appointments and consultations with health care practitioners.
The claimant’s application lodged with the Commission was for medical assessment as Ms Jo submitted in her original submissions at [5] that the Korean interpreting services were “reasonable and necessary in the circumstances.” The insurer’s original submissions at [62] said in response that there was “no properly particularised medical treatment and care request” in relation to the interpreting services. There is clearly a dispute between Ms Jo and NRMA about NRMA’s liability to pay for the claimed interpreting services.
The dispute has been referred to me for determination about whether interpreting services are a form of treatment and care that is covered by the statutory benefits scheme and therefore whether the dispute can be referred for medical assessment.
LEGISLATIVE FRAMEWORK
Statutory benefits
Ms Jo’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for statutory benefits (under Part 3). Statutory benefits payable by the “relevant insurer”[1] include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
[1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Statutory benefits are payable for the first 52 weeks on a no-fault basis however statutory benefits cease under ss 3.11(1) and 3.28(1) if the claimant has threshold injuries or if the accident was caused wholly or mostly by the fault of the claimant.
Section 3.24(1) establishes an injured person’s entitlement to recover “the reasonable cost of treatment and care” expenses from the relevant insurer (in this case NRMA) and there is a definition of “treatment and care” contained in s 1.4 of the MAI Act.
There are a number of limits and restrictions to the treatment and care related benefits that are payable, including s 3.24(2) which states that an insurer does not have to pay benefits if the treatment and care in issue “was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Dispute Resolution
Part 7 of the MAI Act provides for the resolution of disputes by merit reviewers, medical assessors and Members of the Commission. Schedule 2 of the Act declares some disputes to be merit review matters, some medical assessment matters and others miscellaneous claims assessment matters.
In respect of treatment disputes, Schedule 2(1)(k) provides power for a merit reviewer to determine the “reasonable cost of treatment and care”. Schedule 2(2)(b) provides power for a medical assessor to determine whether “treatment and care provided or to be provided is reasonable and necessary in the circumstances or is related to the injury resulting from the accident”.
If some treatment, care, support or service is not covered by the definition in s 1.4 or the scheme of statutory benefits in s 3.24(1) then there can be no issue of whether any of the restrictions and limitations in Division 3 apply. For example, if the phrase “the reasonable cost of treatment and care” in s 3.24(1)(a) does not extend to cover interpreting services then there can be no dispute about whether those services are “reasonable and necessary in the circumstances”, whether they are related to the accident caused injuries or whether the cost of the product or service is reasonable. In such a circumstance there would be no need for a medical assessment matter or merit review matter to be taken further.
Merit Reviewers and Medical Assessors have not been given specific power under Schedule 2(1) or (2) to determine a dispute about whether a particular type of treatment, care, support or service is, or is not, treatment and care and therefore whether the relevant insurer has a liability to pay for it or not.
Schedule 2 cl 3(n) to the MAI Act declares the following to be a miscellaneous claims assessment matter – “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”. The matter was allocated to me to determine whether NRMA has liability to pay for interpreting services incurred in the course of Ms Jo obtaining treatment from Dr Lam and Better Life Allied Health between August and December 2024.
As a Member of the Commission I am of the view I have power to determine that matter. If I am wrong and it is in fact a matter for a merit reviewer, I also hold an appointment as a merit reviewer of the Commission.
If these interpreting services are a form of “treatment and care” within the definition in s 1.4 or a “treatment and care expense” within the meaning of s 3.24(1), there may then be a medical assessment matter which can be referred to a medical assessor (under Schedule 2(2)(b)). If so, and after the medical assessment there remains a dispute about whether the cost of the interpreting services provided or to be provided is reasonable, then that is a matter for a merit reviewer to determine (under Schedule 2(1)(i)).
CLAIMANT’S REQUEST AND INSURER DECISION MAKING
Neither the claimant, nor the insurer have provided a copy of any correspondence or communication from the claimant, her solicitor or the interpreter requesting interpreter services or the payment of interpreter services. There is no doubt that some form of communication must have been received from someone because the insurer wrote a letter declining to pay for the services on 14 August 2024.
The insurer’s letter is in English and was addressed to the claimant at her residential address and was emailed to ABLE interpreting and to the claimant’s solicitor. The letter:
(a) is headed “denial of treatment, rehabilitation and / or care”;
(b) refers to ongoing invoices in relation to GP consultations, rehabilitation provider consultations, physiotherapy consultations and psychologist consultations;
(c) says “the treatment request is not considered Reasonable and Necessary”;
(d) the insurer quotes from a decision of Oh v Allianz[2] and summarised a decision of Shin v NRMA[3]. Both of these decisions appear to have determined that that cost of interpreting services has to be both “reasonable and necessary” in order for the insurer to be liable to pay for them. The insurer did not refer to these or any other cases in any further submissions;
(e) says there is no evidence the interpreting services are reasonable and necessary for “medical consultation to be performed”;
(f) before the accident the claimant was attending a Korean speaking GP, and the insurer says “an appointment with a general practitioner [does not require] complex verbal discussion”;
(g) the insurer says physiotherapy consultations do not require “any complex discussions” and that examinations and exercises can be done with “basic demonstrations and instructions”;
(h) the claimant has a basic understanding and ability to communicate in English.
[2] The insurer did not provide the citation however it can be found at [2022] NSWPICMR 65.
[3] No citation was given, and I have been unable to locate it.
The claimant sought an internal review and on 15 August 2024 the insurer advised the claimant that the decision about the interpreting services “is not an internally reviewable matter.” The insurer says the decision about interpreting services is not a decision about a treatment and care request and that the decision is not about particular or specific invoices.
The claimant has provided copies of invoices from Able Interpreting all of which post-date the insurer’s decision and its “internal review”. The invoices are as follows:
(a) 19 August 2024 at Better Life Allied Health, physiotherapy (telehealth) in the sum of $184.80;
(b) 22 August 2024 at Better Life Allied Health, physiotherapy (telehealth and onsite) in the sum of $369.90
(c) 2 September 2024 at Better Life Allied Health, physiotherapy (telehealth) in the sum of $184.80;
(d) 5 September 2024 with Dr Lam (onsite) in the sum of $184.80;
(e) 13 September 2024 at Better Life Allied Health, physiotherapy (telehealth) in the sum of $184.80 (invoice 21201);
(f) 13 September 2024 at Better Life Allied Health, physiotherapy (telehealth) in the sum of $184.80 (invoice 21197);
(g) 19 September 2024 with Dr Lam (onsite) in the sum of $184.80;
(h) 2 October 2024 at Better Life Allied Health, physiotherapy (telehealth) in the sum of $187.77;
(i) 25 October 2024 at Better Life Allied Health, physiotherapy (telehealth) in the sum of $187.77;
(j) 28 October 2024 at Better Life Allied Health, physiotherapy (telehealth) in the sum of $187.77;
(k) 31 October 2024 with Dr Lam (onsite) in the sum of $187.77;
(l) 8 November 2024 at Better Life Allied Health, physiotherapy (telehealth) in the sum of $187.77;
(m) 14 November 2024 with Dr Lam (onsite) in the sum of $187.77;
(n) 22 November 2024 at Better Life Allied Health, physiotherapy (telehealth) in the sum of $187.77;
(o) 28 November 2024 at Dr Lam (onsite) in the sum of $187.77;
(p) 29 November 2024 at Better Life Allied Health, physiotherapy in the sum of $187.77, and
(q) 6 December 2024 at Better Life Allied Health, physiotherapy in the sum of $187.77.
The total of these invoices is $3,356.40.
PRELIMINARY CONFERENCE REPORT AND PARTIES’ SUBMISSIONS
Preliminary conference
I held a teleconference with the legal representatives of the parties on 13 March 2025 and issued a report to the parties on the same day.
After explaining to the parties why the interpreting services dispute has been referred for miscellaneous claims assessment the following information was provided:
(a) Ms Dhakal advised NRMA has paid for some interpreting services that is those associated with Ms Ho’s appointments to attend psychological counselling, and
(b) Ms Mak advised that the interpreting services for appointments with Dr Lam, GP and the claimant’s physiotherapist have not been paid for by the insurer, copies had been provided, and these are the subject of this application.
The parties were directed to:
(a) provide submissions addressing the jurisdictional matters raised, s 1.4 and s 3.24(1) and
(b) address the claim for costs of this miscellaneous claims assessment matter.
Claimant’s response
The claimant submits in respect of s 3.24(1):
(a) that the bracketed words “treatment and care expenses” can be omitted because they are in brackets and that s 3.24(1) should be read as establishing the entitlement “to statutory benefits for the following expenses incurred in connection with providing treatment and care …” [14];
(b) the interpreting costs were incurred because the claimant sought treatment, and these costs have been incurred “in connection with providing treatment and care” [17] and [18];
(c) the only limits to interpreting fees are s 3.24(1)(a) and s 3.24(2) and they must be “reasonable and necessary” [19];
(d) interpreting services are reasonable and necessary because without them the claimant could not communicate. While the claimant has not had accredited interpreters in the past, this is not because she did not require them but because she was not aware that she had an entitlement to them, and she could not afford them herself [20];
(e) if not allowed this “poses issues of racial discrimination” [22], and
(f) the claimant should not be restricted to choosing treating practitioners who can speak her own language [23] and this would unfairly limit non-English speaking claimants “to a smaller pool of healthcare providers, potentially affecting the standard and availability” of their treatment [25].
In respect of the definition of “treatment and care” the claimant submits:
(a) the definition at (l) allows for other kinds of treatment not listed in s 1.4 to be included [28] and other forms of treatment to be excluded from the definition [30];
(b) interpreting costs have not been specifically excluded in the Regulation therefore interpreting costs can be allowed [31] - [33];
(c) the words “may be prescribed” in sub-section (l) allows for the inclusion of other forms of treatment and does not say that it “must” be prescribed [34] – [36];
(d) therefore, even if interpreting costs are prescribed in the Regulation, “it may still be acceptable” to consider interpreting a “kind of treatment …” and allow it [37].
In the alternative the claimant submits that the Regulation permits the recovery of interpreting costs in cl 20(f) [38], the interpreting costs are therefore prescribed in the Regulation [39] and s 1.4 does not state where it must be prescribed in the Regulation [40].
The claimant also submits:
(a) NSW Health provides interpreting services to persons accessing health services and cites a document produced by the department concerning working with interpreters [42];
(b) NSW Health recognises the importance of interpreter assistance with communication between patients and health care providers which “further supports the argument that interpreting fees should be treated as part of the costs of medical treatment” [43];
(c) equitable access to healthcare requires interpreting fees to be a recoverable expense [44];
(d) costs of interpreting services are permitted in a medio-legal setting under cl 20(f) of the Regulation. If an interpreter is required for a medico-legal examination an interpreter would be required for treatment to ensure “accurate diagnosis and effective care” [45].
Insurer’s response
The insurer highlights at [8] that s 3.24(1) required treatment expenses to be “incurred” and refers at [11] to the claimant’s request for the payment of “future invoices for interpreting services.” The insurer says at [12] that “the claimant has not incurred a loss.”
The insurer says at [13] that:
“a formal declinature of specific invoices or a declinature of a specific request for interpreting services of a particular medical appointment would be required for adequate particularisation.”
The insurer says at [14] and [15] that the insurer’s letter of 14 August 2024 which declined to fund future interpreting invoices does not relate to “any specific request for payment of an invoice or specific service request” and that its letter is “an advisory letter rather than a reviewable decision.”
The insurer says the claimant has brought the application erroneously and no costs should be awarded.
It would appear from these somewhat unclear submissions that the insurer had received a general request for payment of interpreting services not yet incurred in relation to future health care appointments not yet made or arranged.
The insurer’s submissions do not engage with any of the claimant’s arguments and have not engaged with the issues in dispute as raised in the preliminary conference report. The insurer’s submissions do not engage with the fact that while invoices may not have been issued in respect of the original request for “future interpreting invoices”, invoices for specific and particular interpreting services have now been provided and were attached to the application form. The insurer’s submissions do not greatly assist me.
The scope of the dispute
The claimant has not provided a copy of the communication that was sent in relation to the interpreting invoices attached to the claimant’s application. It is not known whether they were provided individually as each invoice was rendered, or whether they were provided in a bundle. There is no information about whether they were provided by the interpreting service or by Ms Jo or by her solicitors. It is also not clear whether or not they have been paid by Ms Jo.
It is clear (from their date) that the invoices were provided after the insurer rejected (on 14 August 2024) a request for payment of “future interpreting” services not related to a particular health practitioner’s appointment and after the insurer declined (on 15 August 2024) to undertake an internal review of that decision.
It is not clear whether the request for payment of these invoices was made the subject of a separate request, and a separate internal review was undertaken before the dispute was referred to the Commission.
In the light of the insurer’s previous refusal and continued refusal to pay for interpreting invoices and the fact that it has not raised any dispute about the actual invoices now provided, I am proceeding on the basis that the dispute about the interpreting service invoices has been validly referred for assessment.
CONSIDERATION OF THE ISSUES
Expenses incurred
The insurer submits that the claimant has not sustained a loss because the interpreting services have not been incurred, and the insurer’s liability only extends to pay for treatment and care expenses if they have been incurred.
The claimant has attached copies of invoices to her application form. Each invoice in the bundle includes:
(a) a heading “tax invoice” and details of the ABN, name, address and contact details of the interpreting service;
(b) an invoice number, date, due date for payment and details of the appointment to which it relates;
(c) the language of the interpreter, the name of the interpreter and the NAATI accreditation number of the interpreter, and
(d) the claim number, the claimant’s details and the date of the claim, and
Each of the invoices is addressed to [email protected] which I understand to be the insurer’s email address.
In AAI Limited trading as GIO v Moon[4], Justice Wright considered the meaning of the word “incurred” in the context of a s 8.10 of the MAI Act and an argument about legal costs. He said at [111]:
“Accordingly… it can properly be said, in my view, that where the claimant has an actual liability to pay legal costs for services provided by a lawyer and the lawyer who provided the services has a corresponding entitlement to payment, the relevant costs have been "incurred" by a claimant. Absent an existing entitlement to payment, the costs would not be said to have been “incurred”. It is not necessary, however, that the claimant has actually paid the legal costs. An actual liability to pay, with the concomitant entitlement to be paid, is sufficient.”
[4] [2002] NSWSC 714.
There is no issue raised about the validity of the invoices. The insurer has not raised any issue that the interpreting services were not provided and in fact the insurer’s representative indicated at the preliminary conference that some interpreting services have been paid (those associated with psychological counselling). On that basis and following Moon, the services have been provided, and the interpreter has an entitlement to be paid. The relevant services have therefore been incurred.
Are interpreting services a form of treatment and care within s 1.4?
The phrase “treatment and care” is defined in s 1.4 and:
“means the following:
(a) medical treatment (including pharmaceuticals),
(b) dental treatment,
(c) rehabilitation,
(d) ambulance transportation,
(e) respite care,
(f) attendant care services,
(g) aids and appliances,
(h) prostheses,
(i) education and vocational training,
(j) home and transport modification,
(k) workplace and educational facility modifications,
(l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,
but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”
Of the 11 kinds of treatment, care support or services listed (a) – (k), interpreting service is not one of them. Sub-section (l) allows the Regulation to effectively add other things to the list.
The claimant says Clause 20(f) of the Regulation includes interpreting services and therefore interpreting services are a form of treatment. I note that cl 20(f) provides that, for the purposes of Part 6 of the Regulation, costs do not include “fees for interpreter or translation services”. Part 6 of the Regulation is concerned with the assessment of costs. That clause does not permit the costs of interpreter or translation services themselves as a form of treatment, care, support or service but operates to exclude fees for interpreter or translated services from the system of regulated costs and disbursements.
The claimant says it does not matter where in the Regulation something is found. The location of a particular regulation within a statutory instrument is not often important, but a Regulation is made pursuant to a power in the Act to make it. Clause 20(f) is not a Regulation made pursuant to the regulation-making power in s 1.4. but is a clause made pursuant to the regulation-making power found in ss 8.3, 8.4 and 8.10 of the MAI Act and concerns legal costs and not what is or what is not a form of treatment and care.
The claimant says that s 1.4 provides at (l) that other kinds of “treatment, care, support or services” may be listed or allowed in the Regulation but there is a discretion, and they do not have to be included. Similarly, the claimant says that the regulation can declare some kinds of “treatment, care, support or services” as excluded and effectively says this means that anything is treatment unless it is excluded by the regulation.
The fundamental principle of statutory interpretation is to consider the context and purpose of the provision in question as a whole and therefore the whole of the definition of s 1.4 must be considered along with s 3.24 and the scheme of statutory benefits provided for in Part 3 of the Act.
In Fowler v Youi Pty Limited[5], when determining whether a new motor car came within the definition of “treatment and care”, and after considering the objects of the Act I said at [142]:
“The purpose of the MAI Act, in its broadest terms, is to provide a scheme of affordable insurance to the greenslip paying public and a scheme of fiscally responsible payments to injured persons. The purpose of s 3.24 (and Division 3.4) is to provide for the scheme of payments for treatment and care outside any entitlement to damages. The purpose of the definition of “treatment and care” in s 1.4, along with the limits and restrictions contained in Division 3.4, is to provide some boundaries to what can be claimed and paid for in that scheme of benefits.”
[5] [2025] NSWPIC 82.
When the whole definition of “treatment and care” in s 1.4 is considered, it provides a finite list of products or services that are “treatment and care” and payable as a statutory benefit and it provide a regulation-making power to “fine-tune” that list. It does not provide for the inclusion of everything that could possibly be treatment and care because sub-section (l) contains a discretion. The words “may be listed” provides a discretion to the Parliament to list or not list other forms of treatment, care, support and services but does not provide a discretion for claimants to incur a liability and insurers a discretion to pay for things not listed. Similarly, the final sentence of the definition does not provide that everything done to or for a claimant is treatment unless it is excluded by the Regulation. It quite clearly enables the exclusion from the definition of treatment and care, treatment, care, support or services that might otherwise be regarded as treatment and care.
There is no explicit inclusion of interpreter services in the list in s 1.4 and interpreter services have neither been included or excluded in the Regulation. Interpreter services are not therefore a form of treatment and care which might come within the definition of s 1.4.
Are interpreting services otherwise an expense payable under s 3.24?
Section 3.24(1) establishes an injured person’s entitlement to recover the cost of treatment and care expenses incurred and provides as follows:
“An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses)[6] 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)if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, 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.”
[6] The emphasis of this phrase is contained in the legislation.
The claimant submitted there is no definition of “treatment and care expenses” in s 1.4, that the words “treatment and care expenses” in s 3.24(1) need not be read (because they are in parenthesis) and that any expense which met criteria (a), (b) or (c) would be payable by the insurer. In Qantas Airways Limited v Chief Commissioner of State Revenue, Handley JA said at [38] that “there is a presumption that defined words in a statute have their defined meanings which is not to be displaced without good reason.”[7] Even if the words “treatment and care expenses” were not to be read in the opening part of s 3.24(1), the definition of treatment and care in s 1.4 would still be relevant because sub-sections (a), (b) and (c) use the phrase “treatment and care”. Therefore, sub-clause (a) for example is to be read as “the reasonable cost of treatment and care [as defined in s 1.4].”
[7] [2008] NSWSC 1049.
The phrase “treatment and care expenses” is in parenthesis and bold italics in the first part of s 3.24(1). Words that are defined in s 1.4 are also in bold italics, as is “owner” in s 1.5, “threshold injury” in s 1.6 and the words “assisted care”, “dependants” and “gratuitous domestic services” in s 3.36. The High Court held in Phonographic Performance Company of Australia Limited v Federation of Australian Commercial Television Stations[8] that a provision describing the way in which a word or phrase in legislation is to be understood operates in the same way as a definition. It is clear that words in bold and italics signify, in the MAI Act a term or word that is then defined. In this case, s 3.24(1) both establishes the entitlement to benefits for treatment and care expenses and defines what those expenses are, that is, “the following expenses … incurred in connection with providing treatment and care for the injured person – (a) … (b) … and (c).”
[8] [1998] HCA39.
While the opening words of s 3.24(1) suggest the entitlement to expenses is very wide by the use of the phrase “in connection with”, when the whole of the section is read together (and in particular the preceding words, it appears the expenses recoverable are limited to the three things listed in the sub-sections that follow, that is:
(a) the reasonable cost of the treatment and care itself;
(b) the reasonable and necessary travel and accommodation expenses to get that treatment and care, and
(c) if the person is a minor or otherwise needs a carer, the reasonable and necessary travel and accommodation expenses incurred by the parent or carer when accompanying the injured person to get their treatment and care.
The interpreting services provided to Ms Jo are clearly not travel or accommodation expenses and can therefore only be payable if they come within s 3.24(1)(a), that is if they are “the reasonable cost of treatment and care” as defined in s 1.4.
What must be “reasonable”?
Sub-section (a) provides that “the reasonable cost of treatment and care” is payable as a statutory-benefit. It includes the qualifier “the reasonable cost of”. It does not include the word “necessary”. Both parties in their submissions have referred to s 3.24(1) as establishing an entitlement to (reasonable and necessary) treatment and care. That is not quite correct. Section 3.24(1) operates to establish the entitlement to treatment and care however s 3.24(2) is the disentitling provision.
There are two possible interpretations of s 3.24(1)(a):
(a) a narrow interpretation – that the treatment and care expenses payable by an insurer are only “the reasonable cost of treatment and care” itself – that is the cost of the consultation with the doctor, the session with the physiotherapist and so on, or
(b) a wider interpretation - that treatment and care expenses payable by an insurer extends to matters associated with or incidental to the treatment and care provided by the doctor, the physiotherapist and others.
Sub-section (a) concerns the treatment and care that is to be provided or to be provided and ss (b) and (c) concern expenses associated with or incidental to the actual treatment and care being provided or to be provided being travel and accommodation expenses. Because the phrase “treatment and care expenses” includes some incidental expenses it suggests that (a) should be interpreted in the narrow sense that is it is addressed only to the actual treatment and care provided by the health practitioner and does not include anything that is incidental to that treatment and care.
The claimant, however, appears to be submitting that the wider interpretation should be adopted because the claimant cannot speak English, her treatment providers do not speak Korean and that in order to get treatment and get the maximum benefit from the treatment she needs to understand what she is being told.
In my view the wider interpretation should be adopted for the reasons that follow.
Fairness and equal access to health
If the narrow interpretation is adopted, then Ms Jo cannot recover the cost of the interpreting service she has incurred and other claimants from a non-English speaking background could be disadvantaged.
While some of them might have family or friends who can provide informal interpretation services, others might not. Some claimants may have the opportunity to consult with a practitioner located nearby who speaks their own language, others may not. Some claimants may therefore not be able to communicate well or at all with their health care providers meaning treatment that might be needed is not provided. Similarly, the health care provider may prescribe or recommend the wrong treatment because they have not properly understood the claimant. The claimant has submitted that the NSW Health department provides interpreters and translators for health services provided to persons in the public health system who need those services. It is doubtful Parliament meant to disadvantage those from a non-English speaking background.
The objects of the Act
Section 1.3(4) of the MAI Act provides that:
“In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.”
One of the objects of the MAI Act is the provision of “early and appropriate treatment and care” in order “to achieve optimum recovery” as stated in s 1.3(2)(a) and for “promoting recovery” as stated in s 1.3(3)(a).
It would seem difficult for an injured non-English speaking person to achieve optimum recovery if they cannot understand what they are being told by their health care provider, or their health care provider cannot understand what is wrong with their patient.
The provision of treatment to a claimant
There are expenses incidental to, or associated with, the provision of treatment and care as distinct from the actual treatment and care. For example, the cost of internet or telephone services (or even a mobile or tablet device) which would enable a claimant to access telehealth services is not specifically provided for in the definition or in s 3.24(1), but could be a reasonable cost of the provision of treatment and care for a claimant living in a remote community. If a claimant requires an adjustable hospital style bed at home because of their accident-related injuries, the cost of the bed would clearly be covered as a form of “treatment and care” (an aid or appliance) the associated or incidental delivery fee should also be covered as part of the “reasonable cost of” the provision of that treatment and care.
Interpreting and translation expenses are, in my view, incidental to the provision of face to face or telehealth treatment and care. They could be considered as an integral part of the actual treatment and care being provided.
In the decision of Cha v Insurance Australia Limited t/as NRMA Insurance[9] I had to consider the interpretation of s 3.33 and whether treatment from a medical practitioner located in Australia to a claimant living in Korea was treatment “provided outside Australia.” Some of the observations I made then about what the provision of treatment means, included the following:
[94] 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 … the giving and the receiving of treatment constitutes the provision of treatment.
[95] 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.
[96] 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 [that benefit] is received.
[9] [2022] NSWPICMR 64.
Treatment involves both the claimant and the health practitioner and requires good communication between the two. In my view, services interpreting a claimant’s history and complaints so that health practitioners can understand what a claimant is saying can be part of the provision of treatment and care to the claimant. Similarly, services interpreting a health practitioner’s questions, advice, or opinion is necessary to ensure the claimant receives the correct treatment and understands what they are being told and is also part of the provision of treatment and care to the claimant.
I am therefore satisfied that interpreting services such as those in dispute in this matter could be (subject to the restrictions and limitations elsewhere in the Act) treatment and care expenses within the meaning of s 3.24(1)(a) because interpreting services are an integral part of the actual treatment and care being provided by the practitioner to the injured person.
Are there other reasons why interpreting services might be allowed?
I note the definition of treatment and care in s 1.4 includes “rehabilitation” and therefore rehabilitation expenses would be a treatment and care expense payable under s 3.24.
The definition of rehabilitation of an injured person in s 1.4 is:
“… the process of enabling or attempting to enable the person to attain and maintain—
(a) the maximum level of independent living, and
(b) full physical, mental, social and vocational ability, and
(c) full inclusion and participation in all aspects of life.
Rehabilitation is a process and is a wide definition as I explained in Fowler. If the claimant’s recovery and treatment plan includes regular monitoring by her GP and physiotherapy, then part of that process might include interpreting and translating the plan, the advice and the treatment. However as neither party were put on notice of this possible argument and have not been given the opportunity of providing submissions, I do not propose dealing with it further.
CONCLUSION
Is there a medical assessment matter to be determined?
As I have found that interpreting services are an integral part of treatment and care provided by a health practitioner to a claimant, if the two cannot understand each other, it follows that the insurer has a liability to pay for those interpreting services subject to the restrictions (such as the services must be medically reasonable and necessary in the circumstances and related to the injuries) and limitations (the cost must be reasonable) in the Act.
The claimant has provided 17 invoices relating to 5 appointments with Dr Lam and 12 sessions of physiotherapy. I am aware that the dispute about physiotherapy currently before Medical Assessor Herald, concerns physiotherapy the subject of a request dated 29 November 2024. The documentation before me indicates that the insurer has paid for physiotherapy before that date. Two of the interpreting services in dispute were incurred in relation to physiotherapy appointments dated 29 November and 6 December 2024. There is no dispute before the Commission about any of Dr Lam’s appointments.
It would appear there is a medical dispute about two of the 17 appointments the subject of the interpretating invoices. It would also appear there is no dispute that the other 15 appointments with the GP or physiotherapist are reasonable and necessary in the circumstances and related to the injuries caused by the accident.
If there is no medical dispute about 15 appointments, then the incidental or associated expenses are prima facie payable. If the two disputed physiotherapy appointments are found to be reasonable and necessary and related to the accident-caused injuries, NRMA will have to pay for them and should also pay for the incidental or associated interpreting expenses, subject to the cost question referred to below.
If the disputed appointments are not allowed by the medical assessor, then NRMA should have no liability to pay for the incidental or associated expenses of the disallowed treatment for which NRMA has no liability to pay. NRMA would also have no liability to pay for accommodation and treatment expenses associated with disallowed treatment. Similarly, NRMA should not be required to pay for any interpreting expenses for treatment and care incurred more than 52 weeks after the accident, if Ms Jo’s only injuries are threshold injuries (as agreed or determined by a medical assessor).
I am also of the view that a dispute about incidental treatment and care expenses such as whether an interpreter is “necessary” for Ms Jo in order for her to communicate with her health practitioners and for them to communicate with her, is not a medical assessment matter.
Is there a merit review matter to be determined?
If there is a dispute about whether Ms Jo needs an interpreter in order for her to accurately communicate her history to Dr Lam or the physiotherapist or for her to understand what Dr Lam or the physiotherapist have told her, then that would appear to be a question of the reasonableness of the cost of the incidental or associated expense which is properly a merit review matter.
The parties should take note that s 3.24(1)(a) does not include the word “necessary”. Costs of treatment and care need only be reasonable. Whether the disputed interpreting services are reasonable would include matters such as the proficiency or otherwise of the claimant’s English, the health practitioner’s Korean language skills, the type of appointment, the length of the appointment and so on.
While I hold an appointment as a merit reviewer, I do not propose to determine the matter of reasonableness at this time. The merit review matter should be referred to the Commission by the claimant, at the conclusion of the medical assessment process and when appropriate evidence is ready to be presented (from the health practitioners and the claimant).
Is the claimant entitled to costs of this application?
The claimant’s original submissions made no claim for costs. At the preliminary conference I requested submissions on costs. The claimant’s further submissions did not refer to costs however the insurer said the claimant should not be entitled to costs on the basis the application was erroneously made.
The proceedings were referred to me as a declared miscellaneous claims assessment matter under Schedule 2(3)(n). Such a matter is a regulated miscellaneous claims assessment matter in accordance with Schedule 1 (3)(2)(g1) of the Motor Accident Regulation.
As the claimant has been successful in the application, I consider the claimant is entitled to costs of up to 16 monetary units or the sum of $1,992.48. In the absence of submissions from the claimant I do not propose to allow the maximum, I consider the sum of $1,000 plus GST to be the “reasonable and necessary legal costs” recoverable by the claimant from the insurer taking into account the work done and the time involved at the preliminary conference.
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