Lim v AAI Limited t/as GIO
[2023] NSWPICMRP 1
•2 May 2023
| DETERMINATION OF MERIT REVIEW PANEL | |
| CITATION: | Lim v AAI Limited t/as GIO [2023] NSWPICMRP 1 |
| ClaimanT: | Back Chun Lim |
| Insurer: | AAI Limited t/as GIO |
| Merit Review Panel members: | Katherine Ruschen Terence O’Riain |
| DATE OF DECISION: | 2 May 2023 |
cATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about payment of statutory benefits under section 3.24 and/or 3.28; dispute about payment of expenses under section 8.10; interpreter fees; meaning of treatment and care; jurisdiction; sections 42 and 54 of the Personal Injury Commission Act 2020; rule 77 of the Personal Injury Commission Rules 2021; compliance with directions; power to dismiss proceedings; Held – the application for a merit review is dismissed. |
| Determinations made: | CERTIFICATE OF DETERMINATION Issued in accordance with s 7.15(4) of the Motor Accident Injuries Act 2017 1. Pursuant to s 54(c) of the Personal Injury Commission Act 2020 and rule 77(b)(ii) and/or in the alternative, rule 77(b)(iii) of the Personal Injury Commission Rules the application for a panel review of the single merit review decision of Merit Reviewer Plibersek is dismissed. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Back Chun Lim (the claimant) and GIO (the insurer) about statutory benefits payable for treatment and care under Division 3.4 of the Motor Accident Injuries Act 2017 (MAI Act) and/or expenses payable under Part 8 of the MAI Act.
The claimant was injured in a motor accident on 12 March 2020.
The claimant lodged an application for personal injury benefits on 9 April 2020.
The claimant requested payment of certain interpreter fees by the insurer. The interpreter fees are said to have been incurred by the claimant in connection with receiving treatment and/or making the claim.
The insurer declined payment of the interpreter fees.
The claimant sought a merit review of the insurer’s internal review decisions regarding payment of interpreter fees.
On 28 October 2022 Merit Reviewer Plibersek determined there was no jurisdiction to review the dispute.
The claimant applied to the Personal Injury Commission (the Commission) for a review panel to reconsider the merit review.
On 5 December 2022 the President’s delegate decided there was reasonable cause to suspect an error in the Merit Reviewer’s decision.
The Commission's President constituted a Review Panel (the Panel) to review the Merit Reviewer's decision.
BACKGROUND TO THE DISPUTE
In the application for personal injury benefits the claimant notified the insurer that they required a Korean interpreter to assist them through the claims process.
The insurer accepted liability to make payment of statutory benefits for the first 26 weeks after the accident. The claimant’s entitlement to statutory benefits ceased on 12 September 2020.
Payment of the following invoices for interpreter fees is in dispute:
Date Invoice no. Reason for interpreter fees 8 April 2020 2797 Tele (video) conference with Mr Cheng, law clerk employed by the claimant’s solicitors 22 June 2020 3280 Tele(video) conference with law clerk Mr Cheng 17 July 2020 3540 Telephone attendance with Ms Lai, law clerk (not admitted to practice until 11 November 2022) employed by the claimant’s solicitors 20 July 2020 3540 Telephone attendance with “Denis from Dr Paul Rope” 5 August 2020 3727 Tele(video) conference with law clerks Ms Lai and Mr Cheng, 7 August 2020 3727 Tele(video) conference with law clerk Mr Cheng 11 August 2020 3728 Tele (video) conference with Dr Lam, general practitioner 15 September 2020 3963 Onsite attendance with Dr Lam 29 September 2020 4078 Onsite attendance with Dr Lam 24 November 2020 4509 Onsite attendance with Dr Lam 8 December 2020 4614 Onsite attendance with Dr Lam
The insurer declined payment of the above invoices on the basis the costs of an interpreter are not costs of treatment and care. In relation to interpreter fees incurred after the claimant’s entitlement period ended on 12 September 2020 the insurer, further and in the alternative, declined payment on the basis the expenses are not authorised by the Motor Accident Guidelines (the Guidelines) pursuant to s 3.28(3).
THE DECISION UNDER REVIEW
The interpreter fees fall into two categories:
(a) fees in relation to conferences with law clerks employed by the claimant’s solicitors, and
(b) fees in relation to consultations by the claimant with his general practitioner.
There is also a fee for an interpreter to telephone “Denis from Dr Rope’s rooms”. The purpose of this call is unclear.
In so far as the claim for interpreter fees is made under s 8.10 of the MAI Act, the Merit Reviewer found that:
(a) section 10 provides for an entitlement to costs and expenses incurred by a claimant “in connection with the claim”;
(b) the reference to “claim” in the context of s 8.10 is a reference to claims for statutory benefits under Part 3 of the MAI Act;
(c) statutory benefits under Part 3 of the MAI Act are about “weekly payments” and “treatment and care”;
(d) the invoices for interpreting services are neither weekly payments nor costs of treatment and care and therefore are not statutory benefits;
(e) the claimant does not have an entitlement to recover costs in the subject dispute under s 8.10, and
(f) in conclusion the Commission does not have jurisdiction to determine the dispute.
In so far as the claim for interpreter fees is made under s 3.24 of the MAI Act the Merit Reviewer found interpreter services do not come within the definition of “treatment and care” and therefore there is no entitlement to recover interpreter costs.
In relation to whether interpreter fees incurred after the claimant’s entitlement period ended are payable under s 3.28(3) of the MAI Act the Merit Reviewer found:
(a) there was no entitlement to recover interpreter costs on the basis Part 5.16 of the Guidelines had not been satisfied, and
(b) therefore ss 3.28(1) and 3.28(3) do not apply to allow payment of interpreter fees incurred more than 26 weeks after the date of the motor accident.
THE CLAIMANT’S SUBMISSIONS
The claimant submits the Commission has jurisdiction to determine the dispute under any of the following:
(a) clause 1(i) of Schedule 2 of the MAI Act – whether the cost of treatment and care provided or to be provided to the claimant is reasonable for the purposes of s 3.24(1) (Entitlement to statutory benefits for treatment and care);
(b) clause, 1(aa) of Schedule 2 of the MAI Act – whether for the purposes of s 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant are reasonable and necessary, and/or
(c) clause 3(n) of Schedule 2 of the MAI Act – any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule.
The claimant relies on a decision of ALV v NRMA Insurance (Merit Review) [2020] NSWSIRADRS 105 to support their contention that interpreter fees are payable pursuant to s 8.10 of the MAI Act. As to whether such costs are reasonable and necessary the claimant submits:
(a) the claimant speaks English as their second language;
(b) the legal service provider is not able to deliver the service in the targeted language of the claimant, as no staff speak Korean “professionally”, and
(c) “it is unreasonable and unnecessary for the insurer to deny the cost of the interpreter fees, which is a result of language barrier towards the claim”.
In relation to s 3.24 of the MAI Act the claimant submits:
(a) it is reasonable and necessary for the claimant to seek treatment and care with the presence of a NAATI-accredited Korean speaking interpreter;
(b) the claimant was required to consult their general practitioner, Dr Lam, every 28 days in order to furnish ongoing Certificates of Fitness and as recommended by Dr Lam and other treatment providers, and
(c) Dr Lam is of the opinion that continuing care will improve the recovery of the claimant from injuries arising from the motor accident.
THE INSURER’S SUBMISSIONS
The insurer maintains:
(a) the Commission does not have jurisdiction to determine the dispute in so far as interpreter fees are claimed under s 8.10 of the MAI Act, and
(b) in so far as interpreter fees are claimed under s 3.24 of the MAI Act interpreter fees do not fall within the definition of treatment and care prescribed by s 1.4 of the MAI Act.
Further and in the alternative, having regard to the claimant’s non-compliance with directions issued by the Panel (discussed further below) the insurer submits this application for review should be dismissed.
THE LEGISLATIVE FRAMEWORK
Section 3.24(1)(a) of the Act relevantly provides:
“(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”.
Under s 3.24(2) statutory benefits are not 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”.
‘Treatment and care’ is defined under s 1.4(1) of the MAI Act as follows:
“‘treatment and care’ 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.”
Section 8.10 of the MAI Act provides the following in respect of recovery of costs and expenses in relation to claims for statutory benefits:
“(1) A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2) The Regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the Regulations or the Commission.
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that:
(a)the claimant is under a legal disability, or
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant”.
DISCUSSION
The information provided by the claimant is insufficient to enable the Panel to determine the dispute, including that insufficient information was provided to enable:
(a) a determination as to whether the interpreter fees were both reasonable and necessary, as required by s 3.24(2) (if the Panel prima facie determined interpreter fees are costs of treatment and care), and/or
(b) a determination as to whether interpreter fees incurred after the claimant’s entitlement period ended on 12 September 2020 were none the less payable under s 3.28 (if the Panel prima facie determined interpreter fees are costs of treatment and care).
The claimant’s submissions were deficient, including that they:
(a) did not clearly identify which interpreter fees are claimed as costs of treatment under s 3.24 and which interpreter fees are claimed as costs of the claim under s 8.10 of the MAI Act, and
(b) did not address how they say the Guidelines authorise payment of the interpreter fees incurred after the claimant’s entitlement period ended on 12 September 2020.
The claimant’s evidence was also deficient. Several contentions are made in the claimant’s submissions, including contentions as to opinions said to be held by treatment providers. However, no evidence has been provided in support of such contentions.
Importantly, the claimant has the onus of proving the requirements of ss 3.24(2) and 3.28(3) of the MAI Act and cl 5.16 of the Guidelines are satisfied.
By directions issued to the parties by the Panel on 19 January 2023 the claimant was directed to:
(a) clarify the parameters of the dispute (directions 10, 11 and 12(a)(i));
(b) provide further particulars as to the nature and purpose of the legal services provided to the claimant in respect of which interpreter fees are claimed (direction 12(a)(ii));
(c) provide further particulars as to the nature of the interpreter attendance with “Denis from Dr Rope’s rooms” (direction 12(a)(iii));
(d) particularise the nature and purpose of each consultation with Dr Lam in respect of which interpreter fees are claimed (direction 12(a)(iv));
(e) address relevant matters in cl 5.16 of the Guidelines to the extent interpreter fees incurred after the entitlement period ended are claimed under s 3.28 of the MAI Act;
(f) provide a copy of the claimant’s bill of costs/work in progress (WIP) printout for the period 1 April 2020 to 8 August 2020 (direction 13(a)), and
(g) provide any further medical or other evidence, including any statement of the claimant in support of the claimant’s contentions under ss 3.24, 3.28 and 8.10 of the MAI Act and cl 5.16 of the Guidelines (direction 13(b)).
Pursuant to the guiding principle in s 42 of the Personal Injury Commission Act 2020 (the PIC Act) the claimant and their solicitors are both under a duty to cooperate with the Commission, including by complying with directions. Accordingly, compliance with the directions issued by the Panel on 19 January 2023 is mandatory.
The claimant has failed to comply with the directions of 19 January 2023. None of the information required by the directions has been provided. No extension of time to comply with the directions has been sought by the claimant and no explanation as been offered by the claimant for their failure to comply with the directions. Accordingly, the claimant and their solicitors are in breach of the directions and in breach of their duty under s 42 of the PIC Act.
Pursuant to s 54 of the PIC Act the Commission may at any stage dismiss proceedings:
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.
The grounds specified under Rule 77 of the Personal Injury Commission Rules 2021 (the PIC Rules) for the purpose of s 54(c) of the PIC Act include:
(a) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President; or
(b) the applicant has failed to prosecute the proceedings with due despatch.
Pursuant to PIC Rule 127(1)(d) section 54 applies to panel review proceedings.
Pursuant to PIC Rule 127(2) “a function given to the Commission in section 42 of the PIC Act is to be read as being given to the panel conducting the panel review proceedings”.
Pursuant to PIC Rule 127(3) “a function given to the Commission in section 54 of the PIC Act is to be read as being given to the President”.
Pursuant to PIC Rule 9:
“A non-presidential member or merit reviewer to whom applicable proceedings are referred may make any order relating to the procedure to be followed in the proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President”.
Pursuant to Rule 5(2)(e) applicable proceedings for the purpose of PIC Rule 9 include panel review proceedings.
Pursuant to PIC Rule 5 “panel review proceedings"are “proceedings before a panel under enabling legislation for an appeal against, or a review of, a decision made in medical assessment proceedings or merit review proceedings”. Accordingly, these proceedings are panel review proceedings for the purpose of s 54 of the MAI Act and PIC Rule 127.
Accordingly:
(a) pursuant to PIC Rule 127 the Panel has power to issue directions to the parties and for compliance with the directions by the parties to be compulsory under s 42 of the PIC Act, and
(b) pursuant to PIC Rules 127 and 9 the Panel has power to strike out the proceedings or to take any step in the proceedings that could be made by the President. This includes the power to dismiss the proceedings under s 54(c) of the PIC Act and PIC Rule 77.
The claimant has failed to comply with the directions issued by the Panel on 19 January 2023, without reasonable excuse. As a result, the claimant has failed to prosecute the proceedings with due despatch.
In the circumstances the Panel has determined that pursuant to s 54(c) of the PIC Act and PIC Rule 77(b)(ii) and/or (iii) the proceedings should be dismissed.
CONCLUSION
For the reasons set out above the proceedings are dismissed on the basis:
(a) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President (PIC Rule 77(b)(ii)), and/or
(b) the applicant has failed to prosecute the proceedings with due despatch (PIC Rule 77(b)(iii)).
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