Mahata v NRMA
[2021] NSWPICMR 38
•3 September 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Mahata v NRMA [2021] NSWPICMR 38 |
| CLAIMANT: | Probir Chandra Mahata |
| INSURER: | NRMA |
| MERIT REVIEWER: | Michael Sofoulis |
| DATE OF DECISION: | 3 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit Review; dispute about statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); whether the cost of treatment and care was reasonable for the purposes of section 3.24(1)(a) of the MAI Act; the claimant received approval for an MRI to two distinct body parts; dispute over the cost of the MRI; whether the cost of MRI scan is reasonable and whether the correct fee was claimed; the application of AMA Rates for treatment not provided at a hospital; whether an MRI is ‘treatment’ as defined in the Act; and whether a claimant’s duty to mitigate loss extends to assessing whether the cost of the treatment is excessive or unreasonable; Held – the reviewable decision is set aside; insurer to pay the correct fee for the MRI; an MRI is treatment; no duty under section 6.5 of the MAI Act for a claimant to determine whether the cost of pre-approved treatment is unreasonable or excessive. |
| DETERMINATIONS MADE: | The reviewable decision is about whether the cost of treatment and care provided to the claimant is reasonable for the purposes of section 3.24(1)(a) of the Motor Accident Injuries Act 2017 (the MAI Act), and is therefore a merit review matter under Schedule 2(1)(i) and (p) of the MAI Act. 1. The reviewable decision is: (a) set aside and the following decision is made in substitution for the reviewable decision: (b) The cost of treatment and care provided by MRI Now to the Claimant on 10 August 2020 is reasonable for the purposes of section 3.24(1)(a) of the Act. 2. This decision takes effect on 3 September 2021. 3. The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0.00 inclusive of GST. |
Background
There is a dispute between Probir Chandra Mahata (the Claimant) and the Insurer about whether the cost of treatment and care provided to the Claimant is reasonable for the purposes of section 3.24(1)(a) of the MAI Act.
The Claimant sustained injuries in a motor vehicle accident on 16 December 2018.
The Claimant lodged an Application for personal injury benefits shortly thereafter and was entitled to receive statutory benefits for treatment and care in accordance with section 3.1 of the MAI Act.
On 10 August 2020 the Claimant had an MRI on his right elbow and right wrist.
The MRI had been approved by the Insurer at a cost of $1,050.
A tax invoice dated 12 August 2020 in the sum of $3,415 was subsequently sent to the Insurer for payment.
10.The Insurer has paid $1,050 but denies that it is liable for the ‘gap’ of $2,365.
11.On 13 October 2020 the Claimant requested an Internal Review of the Insurer’s decision to refuse payment of the outstanding amount.
12.The Insurer conducted an Internal Review and issued a Certificate of Determination dated 27 October 2020 affirming the original decision.
13.The Claimant disputes the Internal Review decision and lodged an Application for Merit Review with the Dispute Resolution Service on 2 November 2020.
14.The application for Merit Review was lodged in accordance with section 7.12(1) of the MAI Act and the Motor Accident Guidelines (Guidelines).
Submissions
The Claimant submits:
15.That the MRI was reasonable and necessary treatment.
16.That the Insurer is required to pay the cost of the MRI in accordance with AMA rates.
17.That section 8.9 of the MAI Act prescribes the maximum fees payable by the Insurer for treatment outside of hospital.
18.That sections 8.9(1) and 3.30 as well as clause 34 of the Motor Accident Injuries Regulation 2017 make it clear that the amount payable for an MRI outside of hospital is the rate fixed by the AMA List of Medical Services and Fees dated 1 November 2019.
19.That the cost of an MRI to the right elbow and right wrist (AMA code – OP 210) pursuant to the AMA List of Medical Services and Fees dated 1 November 2019 is $3,415.
20.That the Insurer’s assertion that they are only required to pay $1,050 is in conflict with clause 34 of the Regulations and section 8.9 of the MAI Act.
21.That the Insurer has not explained why their notional rate of $1,050 is applicable.
22.That if the AMA rate is not the correct rate, then the Claimant should be entitled to recover from the Insurer the gap between what is the prescribed AMA rate and what is approved.
23.That the AMA rate is the standard rate upon which all doctors and radiographers should be paid at.
24.That the objects of the Act and second reading speech make it clear that Claimant’s should not be out of pocket for reasonable and necessary treatment expenses.
The Insurer submits:
25.That there is no prescribed maximum fee for MRI imaging under the MAI Act, Regulations or Guidelines.
26.That if MRI Now wishes to pursue payment they should do so under section 3.30(3) and recover the payment from the Insurer as a debt in a court of competent jurisdiction.
27.That magnetic resonance imaging is not subject to any maximum rate under Part 8 of the MAI Act and under of the Motor Accident Injuries Regulation 2017 (MAIR).
28.That section 1.4 which defines ‘medical treatment’, does not expressly include magnetic resonance imaging nor any radiological investigations.
29.That its agreement of 31 July 2020 to fund the cost of the magnetic resonance imaging in the sum of $1,050 (plus an additional sum of $100 if contrast was required) discharged its obligation under section 3.30(2)(d) to pay a rate which was ‘reasonably appropriate’. The Insurer submits that approved fee was appropriate taking into account:
i.the prescribed Medicare item for an outpatient wrist (or hand or both) MRI (item 63337) is $448;
ii.the prescribed Medicare item for an outpatient elbow MRI (item 63340) is $403.20;
iii.the Insurer agreed to the sum of $1,050, plus an additional sum of $100 if contrast is required, which exceeds the prescribed Medicare items which total $851.20;
iv.on 10 August 2020 the Claimant underwent the procedure having been advised by email dated 31 July 2020 that the agreed fee was $1,050, plus an additional sum of $100 if contrast is required;
v.the Insurer provided written notice on 10 August 2020 to the Claimant, his solicitors, and MRI Now of the approved fee in advance of the MRI taking place, and
vi.the MRI which is the subject of this dispute was outsourced by MRI Now to Dr Rahul Rustogi at I-MED Radiology Network. MRI Now is not a radiology service provider, but a facilitator as described on its website.
30.That the Claimant has an obligation under clause 4.81.1 of the Guidelines to mitigate his loss which, in the Insurer’s submission, extends to not incurring treatment expenses which are excessive and unreasonable.
31.That the Claimant is not entitled to recover legal costs for this dispute as it is not one of the regulated merit review matters in Schedule 1(2) of the MAI Act.
Reasons
Is the MRI treatment?
32.There is a dispute between the Claimant and the Insurer as to whether the cost of treatment and care provided to the Claimant is reasonable for the purposes of section 3.24 (1)(a) – (Entitlement to statutory benefits for treatment and care).
33.Pursuant to section 3.24(2) an injured person is entitled to statutory benefits for the reasonable cost of treatment and care. Section 3.24 provides as follows:
3.24 ENTITLEMENT TO STATUTORY BENEFITS FOR TREATMENT AND CARE
(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,
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
34.Treatment and care is defined in section 1.4 of the MAI Act and includes:
(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.
35.The Insurer appears to dispute that the treatment expense claimed is ‘treatment’ as defined by section 1.4 to the extent that section 1.4 does not expressly include radiological investigations or magnetic resonance imaging.
36.By correspondence dated 31 July 2020 the Insurer approved the MRI in question. In doing so it has in my view accepted that the MRI was a payable statutory benefit for the purposes of section 3.1 and reasonable and necessary treatment in accordance with section 3.24(2).
37.I therefore do not accept the Insurer’s submission that the MRI was not treatment for the purposes of section 1.4 of the MAI Act.
38.Regardless, section 8.10(1) of the MAI Act makes it clear that the cost of medical tests is recoverable.
39.Section 8.10(1) provides as follows:
8.10 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. (emphasis added).
Is the cost of the MRI reasonable?
40.To determine whether the cost of the MRI in question is reasonable, it is necessary to consider section 8.9 which provides as follows:
8.9 MAXIMUM FEES PAYABLE BY INSURERS FOR TREATMENT AND CARE NOT PROVIDED AT HOSPITALS OR PROVIDED AT PRIVATE HOSPITALS
(1) The regulations may make provision for or with respect to fixing the maximum amount for which an insurer is liable in respect of any claim for--
(a) the fee payable for any treatment and care of an injured person to the provider of that treatment and care (other than treatment and care that is provided to in-patients or out-patients at a hospital and for which any payment is required to be made to the hospital and not to the provider of that treatment and care), or
(b) the fee payable for any treatment and care of an injured person to a private hospital for treatment and care at the private hospital.
(2) Any such fees may (but need not) be fixed by reference to fees recommended by the Australian Medical Association or other professional association or by reference to any schedule of fees. (emphasis added).
(3) A payment by an insurer of statutory benefits for treatment and care, or assessed by the Commission, is to be made consistently with any regulations under this section.
(4) This section does not prevent the inclusion in Motor Accident Guidelines of provision as to the appropriate allowance for fees to which this section applies and which are not fixed by regulations under this section.
41.Section 8.9(2) clearly contemplates that medical fees may be fixed by reference to fees recommended by the AMA.
42.Regulation 34 of the Motor Accident Injuries Regulation 2017 fixes the maximum amount payable by an insurer for treatment and care by reference to fees recommended by the Australian Medical Association. Regulation 34 provides as follows:
MAXIMUM AMOUNTS PAYABLE BY INSURER FOR TREATMENT AND CARE NOT PROVIDED AT HOSPITALS OR PROVIDED AT PRIVATE HOSPITALS (SECTION 8.9)
(1) The maximum amount for which an insurer is liable in respect of any claim for fees payable for treatment and care to which section 8.9 of the Act applies is the amount listed, in respect of the treatment concerned, in the AMA List. (emphasis added).
Note : Section 8.9 of the Act does not apply to treatment and care that is provided at a hospital (whether to an in-patient or an out-patient) and for which any payment is required to be made to the hospital and not to the provider of the treatment. The section does apply to the fee payable to a private hospital for any treatment and care at the hospital.
(2) This clause applies only in relation to treatment and care--
(a) that is provided to an injured person by a health practitioner, and
(b) in respect of which a fee is specified in the AMA List.
(3) In this clause--
"AMA List" means the document called List of Medical Services and Fees published by the Australian Medical Association and dated 1 November 2017 as amended or replaced, from time to time, by a document that--(a) has been published by the Australian Medical Association, as an amendment to, or replacement of, the AMA List, and
(b)has been recognised by the Authority, by notice published in the Gazette.
43.Section 3.31 and clause 4.95 of the Motor Accident Guidelines also include provisions for limiting the amount of statutory benefits payable for particular treatment and care. Section 3.31 of the MAI Act provides:
3.31 LIMITS UNDER GUIDELINES ON STATUTORY BENEFITS FOR PARTICULAR TREATMENT AND CARE
(1) The Motor Accident Guidelines may include provision for the following in connection with statutory benefits payable under this Division for treatment and care expenses--
(a) limiting the amount of statutory benefits payable for any particular treatment and care,
(b) approving particular treatment and care as appropriate treatment and care in respect of any matter,
(c) limiting attendant care services for which statutory benefits are payable to services provided by providers of an approved class or with approved competencies.
(2) An insurer is not required to pay statutory benefits for treatment and care expenses under this Division if the treatment and care does not accord with the treatment and care approved under the Motor Accident Guidelines for the matter concerned.
(3) Nothing in this Division prevents an insurer from--
(a) paying treatment and care expenses that the insurer is not required to pay as statutory benefits under this Division, or
(b) approving further treatment and care for the purposes of any claim.
(4) An injured person is not liable to pay, and a person is not entitled to recover from an injured person, the cost of treatment and care provided in respect of an injury suffered in the motor accident concerned if, and to the extent that, the cost of treatment and care exceeds any limit imposed by the Motor Accident Guidelines in respect of the treatment and care. (emphasis added).
44.Clause 4.95 of the Guidelines provides:
In terms of section 3.31(4) of the Act, the limit is the applicable Australian Medical Association (AMA) rates at the time the treatment/service is provided.
45.The claimant has, along with his submissions, provided an extract from the Australian Medical Association’s List of Medical Services and Fees dated 1 November 2019.
46.The List of Medical Services and Fees provides that the maximum fee for an “Magnetic Resonance Study of three or more contiguous regions of the body or two or more separate regions of the body” is $3,415.
47.Consistent with the approach taken in ARL v NRMA [2020] NSWSIRADRS 264 I find that section 8.9(3) of the MAI Act requires the payment of statutory benefits to be made consistently with any Regulations made under section 8.9.
48.The Regulation fixes the maximum amount payable by reference to the AMA List Rate. The appropriate fee for the MRI in question is the one prescribed by the AMA list or $3,415.
49.I’m therefore satisfied that the cost of the MRI ($3,415.00) is reasonable for the purposes of section 3.24(1)(a).
The duty of claimants to minimise loss
50.The Insurer submits that the Claimant has an obligation to mitigate his loss which extends to not incurring treatment expenses which are excessive and unreasonable.
51.Section 6.5 of the MAI Act and clause 4.70 of the Motor Accident Guidelines set out a claimant’s duty to minimise loss.
52.Section 6.5 of the MAI Act provides as follows:
6.5 DUTY OF CLAIMANTS TO MINIMISE LOSS
(1) A claimant has a duty to take all reasonable steps to minimise loss caused by injury resulting from a motor accident.
(2) This duty of a claimant includes the following duties--
(a) the duty to undergo reasonable and necessary treatment and care and do all such things as may be reasonable and necessary for the claimant's rehabilitation,
(b) the duty to commence or return to work as soon as reasonably practicable.
(3) If a claimant fails to comply with a duty arising under this section, the insurer may, if authorised to do so by the Motor Accident Guidelines, suspend payment of weekly payments of statutory benefits to the claimant during any period that the failure to comply continues. The person forfeits their entitlement to weekly payments of statutory benefits during the period of any such suspension.
Clause 4.70 of the Guidelines provides:
53.If the claimant does not take all reasonable steps to minimise loss caused by the injury resulting from the motor accident as per Division 6.2, section 6.5(1)– (3) of the Act, the insurer is authorised to suspend weekly payments in writing, but only if the insurer contacts the claimant to ensure that the claimant:
(a) is aware of their duty to minimise loss
(b) understands what is expected of them to comply with the duty
(c) understands the consequences of failing to comply
(d) has had a reasonable opportunity to comply
(e) has the Authority’s contact details.
54. Section 6.5 is concerned with a claimant undertaking reasonable and necessary treatment and imposes a duty on claimants to return to work as soon as reasonably practicable. It does not in my view impose an obligation on a claimant to determine whether the treatment they are undertaking is, in terms of cost, excessive or unreasonable. An injured claimant who receives approval from an Insurer to undertake treatment cannot be expected to consider of the cost of that treatment and then determine whether it is excessive or unreasonable in the circumstances.
Clause 4.70 of the Guidelines does not assist the Insurer. It deals with suspension of weekly benefits in the event a Claimant fails to take all reasonable steps to minimise loss and has no application to the current dispute.
I do not accept the Insurer’s submission.
Conclusion
57.The reviewable decision is about whether the cost of treatment and care provided to the Claimant is reasonable for the purposes of section 3.24(1)(a) of the MAI Act, and is therefore a merit review matter under Schedule 2(1)(i) and (p) of the MAI Act.
The reviewable decision is:
(a) set aside and the following decision is made in substitution for the reviewable decision:
(b) The cost of treatment and care provided by MRI Now to the Claimant on 10 August 2020 is reasonable for the purposes of section 3.24(1)(a) of the MAI Act.
This decision takes effect on 3 September 2021.
The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0.00 inclusive of GST.
Legislation and Guidelines
In making this decision, I have considered the following:
· The Application, Reply and supporting documentation;
· MAI Act
· Motor Accident Guidelines, and
· Motor Accident Injuries Regulation 2017.
Michael Sofoulis
Merit Reviewer
Personal Injury Commission
0
0
0