Moltmann v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMR 25
•24 April 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Moltmann v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 25 |
| ClaimanT: | Peter Moltmann |
| Insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Merit Reviewer: | Maurice Castagnet |
| DATE OF DECISION: | 24 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); merit review of dispute about statutory benefits under Division 3.4 of the 2017 Act; reasonable cost of medical treatment under sections 3.24, 3.30 and 8.9 of the 2017 Act; clause 34 of the Motor Accident Injuries Regulation 2017 and the Australian Medical Association (AMA) list; Held – the reviewable decision is set aside. |
| Determinations made: | CERTIFICATE OF DETERMINATION The reviewable decision concerns the amount of statutory benefits payable under Division 3.4 of the MAI Act, and is therefore a merit review matter under Schedule 2, cl (1)(i) of the MAI Act. 1. The reviewable decision is set aside. 2. Within 14 days of this determination, the insurer is to make a payment of $1,487.85 to the claimant by way of reimbursement for treatment expenses incurred in connection with the treatment provided by Dr Maurizio Damiani to the claimant on 22 December 2022. |
STATEMENT OF REASONS
INTRODUCTION
This matter concerns a dispute between the claimant, Peter Moltmann, and the insurer about the cost of treatment and care payable to the claimant under Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act).
BACKGROUND
The claimant is a 60-year-old man who was injured in a motor accident on 6 August 2022.
On 29 June 2022, the claimant made a claim to the insurer for statutory benefits. The insurer has since accepted liability to make payments for the first 26 weeks and beyond. The benefits payable included payments for reasonable treatment and care.
On 22 December 2022, the claimant underwent shoulder surgery performed by Dr Maurizio Damiani, orthopaedic surgeon at the Calvary John James Hospital, Deakin, Australian Capital Territory (ACT).
On 29 December 2022, the claimant made a claim for the cost of the surgery by sending the insurer an invoice from Dr Damiani dated 22 December 2022. The total of the invoice was $7,113.75.
By email of 3 January 2023, the insurer advised the claimant that it will reimburse the amount of $5,125 to the claimant, based on service items 48958 and 48972 provided by Dr Damiani.
On 13 January 2023, the claimant received a payment of $3,637.15 by way of reimbursement.
By various telephone calls and emails to the insurer in January, February and March 2023, the claimant sought a review of the decision of the insurer to reimburse the treatment expenses in an amount that was less than the amount of $5,125.
On 15 March 2023, the insurer issued its review decision to the claimant in the following terms:
“The payment was processed correctly. As per our process, the Medicare and health fund rebates are to be deducted as well as (sic) the approved AMA rates which is why the total amount that was reimbursed to the Injured Party is only $3,637.15”.
On 17 March 2023, the claimant made an application to the Personal Injury Commission (Commission) for a merit review of the insurer’s review decision.
The application is now before me for determination.
DOCUMENTS CONSIDERED
In making my decision, I considered the documents and submissions provided to the Commission by the claimant in his application and by the insurer in its reply.
I am satisfied that I have enough information to proceed with a determination of the dispute, on the papers.
LEGISLATION
In making my decision, I have considered the following:
· the MAI Act;
· Motor Accident Guidelines 2017 (Version 9.1) (Guidelines), and
· Motor Accident Injuries Regulation 2017 (Regulation).
THE INSURER’S POSITION
The insurer says that on 3 January 2023, it paid Dr Damiani’s invoice in the amount of $3,595 for Item 48958 and $1,530 for Item 48972 – a total of $5,125. That amount was reimbursed correctly as per “AMA rates” and Medicare and health fund rebates are deducted from the “AMA rates”.
The insurer says in the current dispute, the claimant seeks the balance of the invoice of $7,113.75 paid to Dr Damiani. That balance is not recoverable from the insurer.
THE CLAIMANT’S POSITION
The claimant says that he was notified by the insurer that the costs of the surgery in the amount of $7,113.75 was too expensive. He paid the invoice so that he could proceed with the surgery.
The claimant says that by email of 3 January 2023, he was advised by the claims consultant that the insurer would reimburse him service item 48958 in the amount of $3,595 and service item 48972 in the amount of $1,530 (a total of $5,125). The amounts are at the “AMA rates”.
The claimant says that on 13 January 2023, he was only reimbursed the amount of $3,637.15. He therefore seeks the balance in the amount of $1,487.85 to be reimbursed by the insurer.
The claimant says that neither Dr Damiani or himself, have claimed any Medicare or private health fund rebates in relation to the surgery.
CONSIDERATION
The following issues and facts are not controversial:
(a) The surgery performed by Dr Damiani on 22 December 2022 was ‘medical treatment’ within the meaning of ‘treatment and care’ as defined in s 1.4 of the MAI Act.
(b) Pursuant to the provisions of s 3.24 of the MAI’s Act:
(i)The treatment (shoulder surgery) performed by Dr Damiani was reasonable and necessary in the circumstances of the claimant’s injury resulting from the accident.
(ii)The claimant is entitled to the reasonable cost of the treatment.
(c) For the purposes of ss 3.30 and 8.9 of the MAI Act, and cl 34 of the Regulation, the reasonable costs of the treatment provided are the fees fixed by reference to the current fees recommended by the Australian Medical Association (the AMA rate).
(d) The current fees payable for service items 48958 and 48972 at the AMA rate are $5,125.
The insurer’s submission is that it has ‘paid’ Dr Damiani’s treatment cost in the amounts of $3,595 and $1,530 (to a total of $5,125).
However, this submission cannot be correct. It is inconsistent with the insurer’s own review decision that it has only paid the claimant an amount of $3,637.15 on the basis that it had deducted ‘Medicare and health fund rebates’ from the AMA rate of $5,125.
The claimant has also confirmed that he has only received a reimbursement of $3,637.15. I have seen the receipt issued by the insurer dated 13 January 2023.
What is apparent is that the insurer has approved the AMA rate of $5,125 for the reasonable cost of the treatment and has then proceeded to deduct an amount of $1,487.85 from the approved amount for ‘Medicare and health fund rebates’.
There is nothing in the relevant provisions of the MAI Act and the Regulation to which I have referred, that entitles the insurer to make such deductions from the amount that the insurer has approved as the reasonable cost of the treatment.
In any event, the claimant says that he has not received any Medicare or private health fund rebates in relation to the treatment.
Lastly, I refer to the insurer’s submission that in this dispute, the claimant is seeking a reimbursement from the balance of the fees charged by Dr Damiani of $7,113.75 and the reasonable cost of the treatment approved by the insurer at the AMA rate of $5,125.
This submission is misconceived and must be rejected. It is clear from the claimant’s submissions, the insurer’s review decision and to a certain extent from the insurer’s other submissions, that the dispute is about deductions inappropriately made from the approved amount for the reasonable cost of the treatment.
For the above reasons, I find that the claimant is entitled to a reimbursement of $1,487.85 being the difference between the amount of $3,637.15 already paid by the insurer and the amount of $5,125 approved by the insurer for the reasonable cost of the treatment provided by Dr Damiani on 22 December 2022.
CONCLUSION
The reviewable decision is set aside.
The insurer is to reimburse the claimant the amount of $1,487.85 for treatment expenses incurred in connection with the treatment provided by Dr Maurizio Damiani to the claimant on 22 December 2022.
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