Meksass v Allianz Australia Insurance Limited
[2025] NSWPICMR 12
•11 April 2025
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Meksass v Allianz Australia Insurance Limited [2025] NSWPICMR 12 |
| CLAIMANT: | George Meksass |
| INSURER: | Allianz Australia Insurance Limited |
| MERIT REVIEWER: | Bianca Montgomery-Hribar |
| DATE OF DECISION: | 11 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; costs dispute; other costs and expenses; medico-legal report; report not served or relied upon in proceedings before the Commission; sections 8.4 and 8.10 considered; principles of statutory interpretation; AAI Limited v Moon considered and applied; whether costs reasonable and necessary; Held – costs incurred in connection with the claim; costs reasonable and necessary; claimant entitled to recover costs from insurer under section 8.10. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 8.10 of the Motor Accident Injuries Act 2017 the costs and expenses incurred by the claimant in respect of Dr Rastogi’s report dated 14 March 2024 are reasonable and necessary. 2. The claimant is entitled to recover up to 16 monetary units from the insurer in respect of |
STATEMENT OF REASONS
INTRODUCTION
On 30 January 2023, George Meksass (claimant) was involved in a motor vehicle accident (accident). He made a claim for statutory benefits in accordance with the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer).
On 5 July 2023, the insurer denied liability for statutory benefits after 26 weeks on the basis that the claimant’s injuries were threshold injuries for the purposes of the MAI Act. This decision was upheld on internal review.
On 1 February 2024, the claimant lodged an application with the Personal Injury Commission (Commission) seeking review of the insurer’s threshold injury decision.
On 14 March 2024, the claimant attended upon Dr Richa Rastogi who provided a medico-legal report. Dr Rastogi opined that the claimant had no current psychological injury attributed to the accident. This report was not served on the insurer, nor relied upon by the claimant in any dispute before the Commission.
On 11 July 2024, the claimant was assessed by Medical Assessor Surabhi Verma pursuant to Division 7.5 of the MAI Act. Medical Assessor Verma certified that the claimant had an adjustment disorder caused by the accident, being a threshold injury for the purposes of the MAI Act.
The claimant filed an application for review of Medical Assessor Verma’s assessment. On 24 October 2024, a delegate of the President of the Commission determined not to refer the application to a Review Panel.
The claimant sought payment of his costs in relation to his statutory benefits claim from the insurer pursuant to s 8.10 of the MAI Act. The insurer has paid those costs, save for the costs of Dr Rastogi’s report dated 14 March 2024. The insurer says that the claimant is not entitled to the costs of Dr Rastogi’s report as it was not used in the psychological medical assessment under Division 7.5 of the MAI Act.
Accordingly, a dispute has arisen between the claimant and the insurer as to whether he is entitled to recover the costs of Dr Rastogi’s report from the insurer under the MAI Act.
Clause 1(aa) of Schedule 2 of the MAI Act provides that “whether for the purposes of section 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” is a merit review matter.
Relevant legislation
Part 8 of the MAI Act regards costs and fees.
Section 8.4 provides for the maximum fees recoverable by health practitioners for medico-legal services and states:
“(1) The regulations may make provision for or with respect to fixing maximum fees for the provision by health practitioners of the following services—
(a)provision of any medical report for use in court proceedings in connection with a claim,
(b)provision of any medical report for use in the assessment of a claim under Division 7.6, in a medical assessment by a medical assessor under Division 7.5 or in a merit review under Division 7.4,
(c)appearance as a witness in court proceedings, or in proceedings in the Commission or before a medical assessor or merit reviewer, in connection with a claim.
(2) A health practitioner is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed under this section for the provision of the service.
(3) In determining any matter to be prescribed under this section, the Minister is to consult with the Australian Medical Association and other appropriate bodies. The validity of a regulation is not affected by a contravention of this subsection.”
Section 8.10 provides for the recovery of costs and expenses in relation to claims for statutory benefits and states:
“(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 a person under legal incapacity, or
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
(5) An insurer is not entitled to recover from a claimant for statutory benefits any legal costs, or other costs and expenses, of the insurer in relation to the claim.”
Section 8.1 contains definitions for Part 8 and relevantly provides:
“(1) In this Part—
court includes a court arbitrator or arbitrators.
medical report includes any medical certificate or opinion.
(2) Except as provided by this Part, expressions used in this Part have the same meaning as they have when used in relation to legal costs in the legal profession legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014).”
Division 3 of the Motor Accident Injuries Regulation 2017 (Regulation) pertains to medico-legal fees and expert witnesses. Clause 27 of Division 3 of the Regulations is titled “Application of Division” and provides “This Division applies in respect of fees for the provision of medical reports, and appearances as witnesses, by health practitioners”.
Clause 28 of the Regulation is titled “Maximum fees recoverable by medical practitioner (section 8.4(1))” and states:
“(1) The maximum fees for providing a service specified in Schedule 2 in relation to any motor accident are the fees set out in that Schedule for that service, except as otherwise provided by this Part.
(2) A reference in that Schedule to a report means, if the Motor Accident Guidelines require medical reports to be in a particular form, a report in that form.
(3) A claimant may not claim an amount set out in item 5 or 6 (relating to reports by treating medical practitioners) of Schedule 2 in respect of an initial report by a treating medical practitioner unless the claimant has requested in writing that the insurer provide the report to the claimant and the insurer has failed to do so within a reasonable time.”
Schedule 2 of the Regulation is a table that sets out the maximum fees for medico-legal services.
I also draw attention of the parties to the guiding principle contained in s 42 of the Personal Injury Commission Act 2020 (the PIC Act). That principle is that the Commission and the parties must co-operate and facilitate the just, quick and cost effective resolution of the real issues in the proceedings. In the context of this case I especially underscore sub-s 42(4) which exhorts the Commission and the parties to resolve issues together in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject matter of the proceedings. I also briefly note the objects of the MAI Act include, at s 1.3(2)(g), ‘to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes’.
On the papers
Section 52(3) of the PIC Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
At the preliminary conference on 10 April 2025, the parties agreed to the dispute being determined on the basis of the documents before me and the submissions of the parties, and without holding a formal hearing.
Having considered s 52 of the PIC Act, Procedural Direction PIC2 and the documents before me, I am satisfied that I have sufficient information available to me to allow me to determine the issues in dispute ‘on the papers’ and without holding a formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS AND EVIDENCE
The parties both relied on written submissions for the purposes of the merit review application. These submissions have been considered. I have also considered the oral submissions made by the parties at the preliminary conference on 10 April 2025. Extracts of the parties’ submissions are included in the below reasons.
Each of the parties also filed a bundle of documents. I have considered each of the documents contained in the bundles.
REASONS
It is not in dispute that Dr Rastogi is a medical expert who has provided a medico-legal report in connection with the claim. It is also not in dispute that the claimant did not serve a copy of Dr Rastogi’s report on the insurer, nor did the claimant seek to rely on it in any proceedings before the Commission.
The issue in dispute is whether the claimant is entitled to recover the costs of Dr Rastogi’s report from the insurer.
In summary, the claimant submits that he is entitled to recover the costs of Dr Rastogi’s report from the insurer by virtue of s 8.10 of the MAI Act, as these costs were reasonable and necessary and incurred by him in connection with the claim.
The insurer submits that s 8.4 of the MAI Act specifically limits the costs associated with medico-legal fees to those reports that are “used in the proceedings”, and the claimant is prevented from recovering the costs of Dr Rastogi’s report from the insurer as the medical report was not used in the medical assessment under Division 7.5. The insurer submits that the claimant should bear the cost of a report that the claimant chooses not to use.
For the reasons set out below, I disagree with the insurer’s position.
Relevant principles of statutory construction
As the plurality stated in Military Rehabilitation and Compensation Commission v May,[1] the “question of construction is determined by reference to the text, context and purpose of the Act” citing Project Blue Sky Inc v Australian Broadcasting Authority[2] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[3]
[1] [2016] HCA 19 (May) at [10].
[2] [1998] HCA 28 at [69]–[71].
[3] [2009] HCA 41 (Alcan) at [47].
In Grain Growers Limited v Chief Commissioner of State Revenue (NSW),[4] Beazley P stated (with whom Bathurst CJ and Leeming JA agreed) that “the starting point and end point is with the text of the provision”, citing the comments of the High Court in Alcan at [47] when the plurality stated:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (footnotes omitted)
[4] [2016] NSWCA 359 at [108].
In SZTAL v Minister for Immigration and Border Protection,[5] Kiefel CJ, Nettle and Gordon JJ stated:
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (footnotes omitted)
[5] [2017] HCA 34 at [14].
Delegated legislation made under an Act should not be taken into account for the purpose of interpretation of the Act itself; although it may be useful to read the Act and regulations together in order to identify the nature of the legislative scheme they comprise: AAI Ltd v Moon (2020) 92 MVR 271; [2020] NSWSC 714 (Moon) at [19], referring to Commissioner of Police, New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327 at [48]; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38 at [19]; Webster v McIntosh [1980] FCA 156; 32 ALR 603 at 606 citing The Great Fingall Consolidated Ltd v Sheehan [1905] HCA 43; (1905) 3 CLR 176 at 184; [1905] HCA 43.
What is the proper statutory construction of ss 8.4 and 8.10?
In Moon, Wright J considered the proper construction of ss 8.3 and 8.10 of the MAI Act. While that case regarded legal costs, it provides a helpful analysis of the MAI Act and in particular, s 8.10.
In respect of s 8.10 of the MAI Act, the Court in Moon noted at [80]-[82]:
“[80] Section 8.10(1) establishes the general position that a claimant for statutory benefits such as Mr Moon is entitled to recover from the insurer, GIO, legal costs that:
(1) have been “incurred” by Mr Moon in connection with his claim for statutory benefits; and
(2) are ‘reasonable and necessary’,
but this is expressly stated to be ‘subject to’ the other provisions of s 8.10.
[81] I shall consider the other provisions of s 8.10 to which subs (1) is subject, before returning to consider ‘incurred’ and ‘reasonable and necessary’.
[82] As to the general nature of the entitlement conferred by s 8.10, it can be noted that it is not similar to the awarding of costs in court proceedings. There is nothing in s 8.10 or any other provisions of the MAI Act that suggests that a claimant’s entitlement to recover legal costs under s 8.10 depends on whether or not the claimant was successful before the DRS. Further, by virtue of s 8.10(5), whatever the outcome, an insurer is not entitled to recover from a claimant for statutory benefits any legal costs of the insurer in relation to the claim.”
In addition to not requiring the claimant to be successful, there is nothing in the text of s 8.10 to suggest that a claimant’s entitlement is limited by a requirement that the relevant medical report be relied on in the proceedings or served on the insurer. There is also no reference in s 8.10 to s 8.4 of the MAI Act.
Rather, the words of s 8.10 provide an entitlement to a claimant for statutory benefits to recover reasonable and necessary legal costs and other costs and expenses, subject to that section. Other costs and expenses are expressly stated to “include the cost of medical and other tests and reports”.
As distinct from s 8.10 which confers an entitlement on a claimant, s 8.4 of the MAI Act is a regulation making provision. It enables regulations to be made in respect of medico-legal services and provides for the fixing of maximum costs recoverable by health practitioners for the provision of the services specified in sub-sections (1)(a) to (c).
Section 8.4 says nothing about the recovery of those costs from the insurer. It is a separate and distinct provision to s 8.10 of the MAI Act.
Similar to the wording used in s 8.3,[6] the section commences “[t]he regulations may make provision for or with respect to fixing maximum fees for the provision by health practitioners of the following services…”.
[6] See discussion in Najjarine v Hakanson [2009] NSWCA 187, where the Court of Appeal discussed the predecessor of s 8.3, being s 149 of the Motor Accidents Compensation Act 1999 (NSW) and noted the section “authorises regulations making provision for maximum costs for legal services provided to a claimant or an insurer, and excludes entitlement of a legal practitioner to be paid an amount that exceeds any maximum costs so fixed”: at [13].
I can see no basis for the insurer’s submission that s 8.4 operates to restrict the claimant’s entitlement under s 8.10 by limiting the “other costs and expenses” to those subcategories in s 8.4(1)(a) to (c).
I find that s 8.4 does not operate to limit the claimant’s entitlement in s 8.10 of the MAI Act.
Having established that s 8.4 does not restrict the claimant’s entitlement to recover only costs in respect of the services set out in sub-sections (1)(a) to (c), I need to be satisfied that the cost of Dr Rastogi’s report was reasonable and necessary and incurred by the claimant in connection with the claim.
Were the costs incurred by the claimant in connection with the claim?
Dr Rastogi was engaged by the claimant’s solicitors, on the claimant’s behalf, to prepare a medico-legal report in respect of his statutory benefits claim.
Dr Rastogi’s report notes the claimant was examined regarding his claim arising from injuries from a motor vehicle accident sustained on 30 January 2023. Dr Rastogi’s report sets out a history of injury by reference to the accident. The questions addressed by Dr Rastogi are focused on the accident. I find the report was prepared in connection with the claim.
The report of Dr Rastogi is listed as a disbursement of C&M Lawyers dated 11 February 2025 in respect of the claim. While the invoice issued by Dr Rastogi is not included in the bundle of documents before me, there appears to be no dispute that the costs of the report are liable to be paid by the claimant.
As noted in Moon, “incur” is “to become liable for or subject to”, and regards an actual liability to pay. It is not necessary that the claimant has actually paid the costs, an actual liability to pay is sufficient: Moon at [109]-[112].
I find that the costs of the report were incurred by the claimant in connection with the claim.
Is the cost of Dr Rastogi’s report reasonable and necessary?
Whether costs are ‘reasonable and necessary’ is determined on a case-by-case basis: Moon at [105].
The fact that the claimant’s application under Division 7.5 was not successful is not determinative of this issue: Moon at [82].
Whether a medical report has been served on the insurer or relied on in proceedings before the Commission is a relevant factor in determining whether the cost is reasonable and necessary. However, it is not the only factor required to be considered.
Here, the claimant submits that the application for personal injury benefits dated 5 April 2023 lists “anxiety state and depression PTSD” under the injuries related to the motor accident. The claimant also submits that his general practitioner’s (GP) notes of 17 May 2023 include “PTSD symptoms” and that the claimant complained of suffering psychological injuries in the first conference with his solicitors.
The claimant submits that, on 7 February 2024, the claimant’s solicitors received the clinical notes of Ms Charmine Moubarak, the claimant’s treating psychologist. These notes are said to report severe depression and extremely severe stress levels, and the claimant submits that “the clinical entry dated 20 September 2023 shows symptoms related to the diagnosis of Post Traumatic Stress Disorder”.
The claimant says that, having regard to the notes of the claimant’s GP and treating psychologist, which record post-traumatic stress disorder and depression, the independent medical report of Dr Rastogi was commissioned on 21 September 2023 in connection with the claim. The claimant submits that this report was sought to provide information about the claimant’s psychological injuries and work capacity.
The insurer submits that, as at 14 March 2024, the claimant held an expert psychiatric opinion of Dr Rastogi which was evidence of the fact he did not have a diagnosable psychiatric injury, but still allowed the psychiatric threshold injury dispute to proceed before Medical Assessor Verma on 11 July 2024.
While I accept the insurer may criticise the claimant for pursuing the medical assessment in circumstances where the claimant held a medico-legal report opining that the claimant did not have a psychological injury, whether the claimant was correct to pursue the Division 7.5 medical assessment is not the issue before me. The issue before me is whether the costs of Dr Rastogi’s’ report are reasonable and necessary for the purposes of s 8.10 of the MAI Act.
The insurer’s liability notice dated 5 July 2023 relevantly states:
“In the most recent certificate of fitness, dated 15 June 2023 by Dr Ashraf Aboud, you were diagnosed with ‘neck pain, lower back and Rt knee pain (medial meniscal extrusion) and PTSD.’
With respect to your Post Traumatic Stress Disorder, we do not have evidence to support this diagnosis meets the DSM-5 criteria as required by Section 5.10 and 5.11 of the Motor Accident Guidelines. Your psychological injury is therefore assessed as a 'threshold’ injury as per section 5.12 of the Guidelines.”
Based on the insurer’s reasons for decision in the liability notice dated 5 July 2023, I consider it was reasonable and necessary for the claimant to obtain a medico-legal report in circumstances where he is reported to have symptoms of psychological illness, but the insurer has determined his psychological injuries are threshold injures on the basis that there was no evidence to support his diagnosis.
I also note that Medical Assessor Verma’s assessment states that the claimant reported he started experiencing mental health symptoms soon after the accident, and said he discussed a mental health with his GP. Medical Assessor Verma provided a summary of relevant documentation that was before her. Relevantly, Medical Assessor Verma’s summary notes:
(a) the certificate of capacity dated 17 August 2023 from Dr Aboud mentions a diagnosis of “PTSD”;
(b) the IME by Dr Peter Conrad dated 4 October 2023 concludes “At this stage he needs conservative treatment including the modalities of medication, medical supervision, physiotherapy and psychological counselling…”;
(c) a mental health plan by Dr Ashraf Aboud dated 25 August 2023 notes symptoms of mixed anxiety and depression for which the claimant was referred to psychologist Charmaine Moubarak; and
(d) clinical notes of Charmaine Moubarak, psychologist, dated 20 September 2023 notes she undertook DASS scoring where the claimant scored 11 in depression, 4 in anxiety and 17 in stress.
While those documents are not before me, they are all noted to pre-date Dr Rastogi’s report. The summary provided by Medical Assessor Verna of those documents suggest that obtaining a medico-legal report from a psychologist or psychiatrist would be reasonable and, in circumstances where the insurer had decided that the claimant’s psychological injuries were threshold injuries based on a lack of evidence, necessary.
I also note that Medical Assessor Verma came to a different conclusion than Dr Rastogi on the claimant’s psychological injury and found that the claimant had an adjustment disorder.
I accept the insurer’s submission that the report of Dr Rastogi was not used in the medical assessment under Division 7.5. While this is a factor that weighs against a finding that the report was reasonable and necessary, I do not consider this is determinative of whether the claimant is entitled to recover the costs of this report.
On balance, based on the considerations outlined above, I find it was reasonable and necessary for the claimant to incur the costs associated with Dr Rastogi’s report.
I accept the insurer’s submission that it would be contrary to the intention of the legislation to allow claimants to “shop around for favourable opinions from any number of doctors, not use any of those opinions, yet claim those medico-legal report fees”. However, this submission does not reflect the current circumstances. The claimant is only seeking the recovery of costs incurred for one medico-legal report in relation to his psychological injuries. He did not seek to obtain a second medico-legal report after he decided not to rely on or serve Dr Rastogi’s report. I do not consider that obtaining one medico-legal report that was not served or relied upon amounts to “forum shopping”. Further, to be entitled to recover the costs of any medico-legal report fees, the claimant must show they are reasonable and necessary.
What is the maximum amount provided by the Regulations?
The report of Dr Rastogi is report prepared by a specialist who had not previously treated the claimant, and the appointment was not jointly agreed by the parties. An examination of the claimant was undertaken. Schedule 2 Item 7(b) of the Regulation applies.
Accordingly, pursuant to s 8.10(2) of the MAI Act, cl 28(1) and Schedule 2 of the Regulation, the maximum amount payable by the insurer for Dr Rastogi’s report is 16 monetary units.
CONCLUSION
For the purposes of s 8.10 of the MAI Act the costs and expenses incurred by the claimant in respect of Dr Rastogi’s report dated 14 March 2024 are reasonable and necessary.
The claimant is entitled to recover up to 16 monetary units from the insurer in respect of Dr Rastogi’s report dated 14 March 2024.
0
12
0