Liu v AAI Limited t/as GIO

DETERMINATION OF MERIT REVIEW PANEL
CITATION:	Liu v AAI Limited t/as GIO [2022] NSWPICMRP 8
ClaimanT:	Hongru (Amanda) Liu
Insurer:	AAI Limited t/as GIO
Merit Review Panel members: MERIT REVIEWER: MERIT REVIEWER: MERIT REVIEWER:	Maurice Castagnet Katherine Ruschen Terence O’Riain
DATE OF DECISION:	7 October 2022
cATCHWORDS:	MOTOR ACCIDENTS - Merit review panel; merit review application under Schedule 2, Clause 1(i) of the Motor Accident Injuries Act 2017 (2017 Act); costs of interpreting services incurred in connection with psychotherapy treatment; Held – the expense of interpreting services incurred by the claimant in connection with psychotherapy treatment provided by her treating psychologist was a reasonable cost of treatment and care within the meaning of section 3.24 of the 2017 Act.
Determinations made:	1. The merit review decision of Merit Reviewer Tajan Baba dated 28 June 2021 is set aside. 2. In substitution, the Merit Review Panel determines as follows: a. The insurer’s Certificate of Determination - Internal Review dated 1 December 2020 is reviewable as a merit review matter under Schedule 2, cl (1)(i) of the MAI Act. b. “Outcome 3” of the insurer’s Certificate of Determination - Internal Review is set aside. c. For the purposes of Schedule 2, cl (1)(i) of the MAI Act, the costs of interpreting services provided by Able Interpreting (tax invoices 4061, 4149, 4271 and 4388) in the amount of $877.30 in connection with the psychological treatment provided by Mr Hansen Li, are reasonable costs of treatment and care within the meaning of s 3.24 of the MAI Act. 3. Pursuant to Schedule 1, Part 1, cl (3)(a) of the Motor Accidents Injuries Regulation 2017, the Merit Review Panel allows the sum of $1,980 (inclusive of GST) for the claimant’s costs.

STATEMENT OF REASONS

Introduction

The claimant, Hongru (Amanda) Liu is a 52-year-old woman who was injured in a motor accident on 18 August 2020.
On 10 September 2020, the claimant made a claim for statutory benefits for weekly payments for loss of income and payment of the costs of treatment and care under Part 3 of the Motor Accidents Injuries Act 2017 (the MAI Act).
In her claim form, the claimant notified the insurer that she would require an interpreter to assist her through the claims process. She indicated that her preferred language was Mandarin Chinese.
A dispute arose over the insurer’s refusal to pay the costs of interpreters attending the psychological treatment sessions provided by the claimant’s treating psychologist, Mr Hansen Li.
The dispute was the subject to an internal review by the insurer. On 1 December 2020, the insurer issued a Certificate of Determination – Internal Review. In “Outcome 3” of that determination, the insurer affirmed its original decision. The dispute was then referred to the Personal Injury Commission (the Commission) for determination.
On 28 June 2021, Merit Reviewer Tajan Baba determined that the Commission did not have jurisdiction to review the dispute.
On 26 July 2021, the claimant lodged an application to review the Merit Reviewer’s decision.
On 8 September 2021, the President’s delegate, Rachel Britliff, determined that there was reasonable cause to suspect an error in the Merit Reviewer’s decision.
The Review Panel (the Panel) has been constituted by the President of the Commission to conduct a review of the Merit Reviewer’s decision.

BACKGROUND TO THE DISPUTE

10. The insurer accepted liability to make payment of statutory benefits for the first 26 weeks after the accident. The claimant has received payments for both types of statutory benefits during that period.

11. In or about September 2020, Mr Li sought approval from the insurer for the costs of providing psychological treatment to the claimant by submitting an Allied Health Recovery Request form (the AHRR form).

12. In the AHRR form, Mr Li notified the insurer that the claimant had requested the attendance of a Mandarin Chinese interpreter at the psychological treatment sessions.

13. The insurer approved payment for Mr Li to provide psychological treatment to the claimant on Saturday 25 September 2020, Saturday 10 October 2020, Saturday 24 October 2020 and Saturday 7 November 2020. All of the treatment sessions were of one hour duration.

14. On 25 September 2020 and 10 October 2020, a Mandarin Chinese interpreter, Jing Wu, attended the treatment sessions provided by Mr Li. On 24 October 2020, a Mandarin Chinese interpreter, Lin Liu attended the treatment session. On 7 November 2020, a Mandarin Chinese interpreter, Hayley Hailin Chen, attended the treatment session. All the interpreters are said to be NAATI accredited.

15. Subsequently, Able Interpreting submitted the following tax invoices for the interpreting services to the insurer for payment:

(a)Tax Invoice 4061 for the attendance on 25 September 2020             $184.80
(b)Tax Invoice 4149 for the attendance on 10 October 2020                  $231.00
(c)Tax Invoice 4271 for the attendance on 24 October 2020                  $231.00
(d)Tax Invoice 4388 for the attendance on 7 November 2020                $231.00
$877.30

16. The insurer paid Mr Li’s invoices for the treatment sessions but rejected payment of the Able Interpreting’s interpreting invoices.

17. By letter dated 23 October 2020 the insurer notified the claimant that payment for the interpreting invoices dated 25 September 2020 and 10 October 2020 were rejected for the following reasons:

“As previously advised, you are entitled to receive payment for all ‘reasonable and necessary’ treatment and care for injuries sustained as a result of the motor accident.

In determining whether we will support your treatment and care, we are required to consider whether the treatment and care is reasonable and necessary, this includes;

1. whether the treatment and care-

is reasonable and necessary in the circumstances; and
is directly related to your motor accident; and
is appropriate for the injury;
will benefit you.

2. the appropriateness of the service provider; and
3. whether the treatment and care is cost effective.

We confirm Able interpreting services requested by Dr Li has requested the following services on your behalf to assist in rehabilitating your personal injuries caused by the motor accident.

Type of Service: Interpreting Invoices #4149 and #4061

Description of Request: Interpreting services

Treating Areas: Psychological Interpreting services

Cost: $415.80

Please be advised this request has been denied as the request is not considered reasonable and necessary.

We note Dr Hansen Li is registered on the AHPRA website. AHPRA is the Australian Health Practitioner Regulation Agency and is the national organisation responsible for implementing the National Registration and Accreditation Scheme (the National Scheme) across Australia.

the profile for Dr Li he has recorded next to 'Languages (in addition to English)' Mandarin and Shanghainese.

The context is clearly medical and it is also clearly implied that Dr Li as able to fulfil his functions as a practising medical professional by communicating in both Mandarin and Shanghainese.

The application for personal injury benefits in this matter lists Mandarin as the preferred method of communication for the claimant.

It seems clear therefore that there is no need for the use of a Mandarin interpreter in consultations and we therefore decline payment for those services in full.

Invoice #4194 [sic]and #4061 are declined.”

18. By letter dated 20 November 2020, the insurer provided the same reasons to the claimant for rejecting the other two Able Interpreting invoices dated 24 October 2020 and 7 November 2020. When making the decision on this occasion, the insurer was aware of the following matters:

(a) On 5 November 2020, Mr Li had amended his APHRA profile to confirm that he does not provide professional services in Mandarin Chinese.
(b) On 5 November 2020, Mr Li had advised the insurer that his ability to communicate in Mandarin Chinese is limited to a conversational level and does not reflect an ability to communicate in that language in a clinical setting.
(c) On 18 November 2020, Mr Li had advised the insurer that he does not speak Mandarin Chinese in response to a questionnaire.

THE DECISION UNDER REVIEW

19. In summary, the Merit Reviewer found that interpreting services do not fall within the definition of ‘treatment and care’ provided under s 1.4(1) of the MAI Act and is not an ‘expense’ incurred in connection with receiving treatment and care under s 3.24 of the MAI Act.

20. The Merit Reviewer did not accept the claimant’s submission that the interpreting services fall under “other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition” as stipulated in ss 1.4(1)(l) of the MAI Act. The FAQs issued by SIRA[1] are not regulations and in any event, the FAQs only specify that allied health practitioners must include the relevant service code(s) when requesting approval for services (including interpreting). The FAQs do not prescribe interpreting services as ‘treatment and care’ for the purposes of the definition in s1.4(1) of the MAI Act.

[1] See the claimant’s re-submission to the Panel at paragraph 26 of these reasons.

21. The Merit Reviewer did not accept that interpreter services, even those provided to enable delivery of ‘treatment and care’, are a form of treatment and care prescribed under Part 3 of the MAI Act.

The Merit Reviewer found an entitlement to recover costs and expenses incurred under s 8.10 of the MAI Act relates to costs incurred by a claimant “in connection with the claim”. The reference to ‘claim’ in s 8.10 is a reference to claims for statutory benefits under Part 3 of the MAI Act. Statutory benefits are provided under Part 3 to be ‘weekly payments’ and ‘treatment and care’. The fees for the interpreting services in dispute are not ‘weekly payments’ and are not ‘treatment and care’ under the MAI Act. On that basis, the claimant does not have an entitlement to recover such costs under s 8.10 of the MAI Act and, accordingly, the Commission does not have jurisdiction to review the dispute under Schedule 2 cl (1) (aa) of the MAI Act.

23. In view of her finding that the interpreter services in dispute are not statutory benefits under Part 3 of the MAI Act, the Merit Reviewer concluded that the Commission does not have jurisdiction to determine the claimant’s dispute as a miscellaneous claims assessment matter under Schedule 2, cl (3)(n) of the MAI Act.

THE CLAIMANT’S SUBMISSIONS

24. The claimant submits that the Commission has jurisdiction to determine the matter under any of the following bases:

(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.
(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.

25. The claimant submits that she has made a claim for statutory benefits which includes treatment and care. Section 1.4(1) of the MAI Act defines treatment and care to include medical treatment (including pharmaceuticals), rehabilitation and such other kinds of treatment, care support or services as may be prescribed by the Motor Accident Injuries Regulation 2017 (the Regulation).

26. When submitting a request for psychology and counselling services to be approved by the insurer, the guidelines published by the State Insurance Regulatory Authority[2] (SIRA) entitled “Providing allied health services in the NSW CTP schemes – FAQs” psychologist is required to submit details of the assessment and therapy/treatment provided by a psychologist or counsellor as well as any interpreter costs to enable delivery of the service. The claimant submits that, as a result, any interpreter costs to enable the delivery of the service is part of the service provided by the psychologist.

[2] On that basis, the claimant submits that the interpreter services provided in that context satisfies the definition of “treatment and care” in s 1.4(1) of the MAI Act.

28. The claimant therefore submits that the Commission has jurisdiction to determine the dispute under either cl 1(i) or cl 1(aa) of Schedule 2 of the MAI Act.

29. In the alternative, the claimant submits that the dispute may be dealt with as an issue of liability for a claim for statutory benefits under Schedule 2, cl 3(n) of the MAI Act.

THE INSURER’S SUBMISSIONS

30. The insurer submits that the Commission does not have jurisdiction to determine a dispute in relation to payment of an interpreting invoice for a medical assessment under cl 1(i) of Schedule 2 of the MAI Act because the invoice does not fall within the definition of “treatment and care” in s 1.4(1) of the MAI Act.

31. As the claimant does not have an entitlement to recover the cost of an interpreting invoice under s 3.24 of the MAI Act, the Commission does not have jurisdiction determine whether the cost was reasonable and necessary under cl 1(aa) of Schedule 2 of the MAI Act.

32. The insurer submits that the Merit Reviewer was correct in determining that interpreter services are not statutory benefits under Part 3 of the MAI Act and accordingly, the Commission does not have jurisdiction to determine the dispute under cl 3(n) of Schedule 2 of the MAI Act.

THE LEGISLATIVE FRAMEWORK

33. It is appropriate to set out the relevant provisions in the MAI Act.

34. Section 3.24 of the Act provides that:

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) 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.”

35. ‘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,

(d) ambulance transportation,

(e) respite care,

(f) attendant care services,

(g) aids and appliances,

(h) prostheses,

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.”

DISCUSSION

36. There is no controversy that the psychological treatment provided by Mr Li to the claimant was “medical treatment” within the meaning of ss 1.4(1) (a) of the MAI Act and therefore, “treatment and care” within the meaning of s 3.24 (1) of the MAI Act. Indeed, the insurer accepted that it was and made payment to Mr Li on that basis.

37. Section s 3.24 (1) of the MAI Act provides that an injured person is entitled to statutory benefits for treatment expenses incurred in connection with providing treatment. On that basis, it follows that if an injured person requires the assistance of an interpreter to be present when treatment such as psychotherapy is delivered, such requirement would be intrinsically linked to the treatment. It also follows in these circumstances, that the cost of the interpreter service is an expense incurred in connection with the treatment.

38. The SIRA FAQ’s published for the guidance for allied health practitioners[3] provides that when a psychologist submits an AHRR request form to the insurer for the approval of the cost of providing therapy/treatment, the request should also include any interpreter costs to enable delivery of the service. The Panel accepts that the SIRA FAQ’s are not part of the Regulation. However, the publication serves to re-enforce the Panel’s view that any interpreter service provided in that context is a necessary expense for the delivery of the therapy/treatment.

[3] The full title of the SIRA publication is referred to in paragraph 26 of these reasons.

39. In the present case, there is no controversy that the claimant required the delivery of her psychological treatment in the Mandarin Chinese language. For that purpose and in his AHHR form, Mr Li requested a Mandarin Chinese interpreter in connection with the delivery of his psychological treatment to the claimant.

40. In response to the AHHR request, it is apparent from its letter to the claimant dated 23 October 2020 that the insurer regarded such an expense to be part of treatment and care expenses. The insurer did not reject payment of the expense on the basis that the interpreting services were not “treatment and care” for the purposes of s 3.24, but rather because it held the view that Mr Li was capable of delivering the psychological treatment to the claimant in Mandarin Chinese. On that view, the insurer concluded that the interpreting services of Able Interpreting incurred in connection with the treatment was neither reasonable nor necessary.

41. As it turned out, Mr Li confirmed that he could not provide the treatment to the claimant in Mandarin Chinese because his command of Mandarin Chinese is not adequate in a clinical setting. The evidence reveals that this information was provided to the insurer on 5 November 2020. The insurer nonetheless maintained its original decision of 23 October 2020 in declining payment of the interpreting invoices.

42. In these circumstances, the Panel finds that the expense of the interpreting services by Able Interpreting incurred by the claimant in connection with the psychological treatment provided by Mr Li, was a reasonable cost of treatment and care within the meaning of s 3.24 of the MAI Act. The panel finds that the cost of the interpreting services in the total amount of $877.30 charged by Able Interpreting in the four subject tax invoices is reasonable.

CONCLUSION

The merit review decision of Merit Reviewer Tajan Baba dated 28 June 2021 is set aside.
In substitution, the Merit Review Panel determines as follows:

(a) The insurer’s Certificate of Determination - Internal Review dated 1 December 2020 is reviewable as a merit review matter under Schedule 2(1)(i) of the MAI Act.
(b) “Outcome 3” of the insurer’s Certificate of Determination - Internal Review is set aside.
(c) For the purposes of Schedule 2(1)(i) of the MAI Act, the costs of interpreting services provided by Able Interpreting (tax invoices 4061, 4149, 4271 and 4388) in the amount of $877.30 in connection with the psychological treatment provided by Mr Hansen Li, are reasonable costs of treatment and care within the meaning of s 3.24 of the MAI Act.

COSTS

The claimant has made an application for the Commission to permit payment of exceptional costs beyond the regulated amount.
The insurer opposes that application.
The Panel, as a merit review panel, does not have jurisdiction to allow costs on the basis of exceptional circumstances. Pursuant to ss 8.10(4)(b) of the MAI Act only the Commission can permit payment of legal costs if the Commission is satisfied there are exceptional circumstances. Pursuant to s 8 of the Personal Injury Commission Act 2020, the Commission consists of the President, Deputy President, and non-presidential members, and does not include merit reviewers. In any event, the Panel considers that no exceptional circumstances exist in this matter that would justify payment of legal costs beyond the regulated amount.
Pursuant to Schedule 1, Part 1, cl (3)(a) of the Motor Accidents Injuries Regulation 2017, the Merit Review Panel allows the sum of $1,980 (inclusive of GST) for the claimant’s costs.

[2022] NSWPICMRP 8

7 October 2022