Neish v Insurance Australia Limited ACN 000 016 722 Trading as NRMA Insurance (Motor Accident Injuries) - [2021] ACAT 83

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NEISH v INSURANCE AUSTRALIA LIMITED ACN 000 016 722 TRADING AS NRMA INSURANCE (Motor Accident Injuries) [2021] ACAT 83

MAI 16/2021
Catchwords: MOTOR ACCIDENT INJURIES – application pursuant to section 197(3) of Motor Accident Injuries Act 2019 seeking leave to present information or evidence – deciding if information or evidence reasonably available to decision‑maker when decision was made – party seeking leave to obtain and present all reasonably available information to the decision-maker as early as possible – meaning of ‘not reasonably available to the decision-maker’ in section 197(3)

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 6
Motor Accident Injuries Act 2019 ss 6, 120, 121, 197, 487

Subordinate

Legislation cited: Motor Accident Injuries (Treatment and Care) Guidelines 2019 Guideline 3.1

Tribunal:Acting Presidential Member T Kyprianou

Date of Orders:  9 September 2021
Date of Reasons for Decision:      9 September 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          MAI 16/2021
BETWEEN:
ERROL NEISH
Applicant

AND:
INSURANCE AUSTRALIA LIMITED ACN 000 016 722 TRADING AS NRMA INSURANCE
Respondent

TRIBUNAL:Acting Presidential Member T Kyprianou

DATE:9 September 2021

ORDER

The Tribunal orders that:

The respondent’s Application to present additional information or evidence dated 16 August 2021, being the supplementary report of Dr Oppermann dated 13 August 2021, is dismissed.

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Acting Presidential Member T Kyprianou

REASONS FOR DECISION

The respondent, Insurance Australia Limited trading as NRMA Insurance (the NRMA), has applied under section 197(3) of the Motor Accident Injuries Act 2019 (the MAI Act) to present additional evidence to be considered by the Tribunal in the review of the respondent’s decision dated 24 June 2021. The additional evidence is a supplementary report prepared by Dr Oppermann, consultant occupational physician, dated 13 August 2021.
Dr Oppermann’s supplementary report of 13 August 2021 was requested by the respondent on 10 August 2021. That was after the applicant lodged in ACAT on 20 July 2021 the application for external review of the decision. As noted above the reviewable decision, which is the subject of the application for external review, was made on 24 June 2021. That decision was made following an internal review of a decision made by the respondent on 9 June 2021 refusing approval for payment of physiotherapy treatment requested on behalf of the applicant on 8 June 2021. The report, that is the subject of this application for leave, is supplementary to an earlier report dated 23 March 2021 prepared by Dr Oppermann at the request of the respondent.
The respondent relied on Dr Oppermann’s original report dated 23 March 2021 to reach the reviewable decision. The question that was put to Dr Oppermann by the respondent in the request for the supplementary report, and that is addressed by Dr Oppermann in that report, relates specifically to the treatment benefits requested by the applicant on 8 June 2021 which are the subject of the reviewable decision.
Section 197(2) of the MAI Act provides that when reviewing a decision the ACAT must only consider the information that was available to the decision-maker when the decision was made.
Section 197(3) of the MAI Act provides that the ACAT may, on application by a party, give the party leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made.
The question this Tribunal must answer in deciding whether to give the respondent leave to present Dr Oppermann’s supplementary report is whether the information contained in that report was reasonably available to the respondent when the reviewable decision was made on 24 June 2021.
The use of the expression ‘not reasonably available’ in section 197(3) indicates that the new information or evidence that is the subject of the application for leave could not have been made available to the decision-maker by the party seeking to rely on it before the reviewable decision was made. In other words, that it was not within that party’s ability and power to obtain the information and present it to the decision‑maker, within the time‑frame that the reviewable decision had to be made.
In this case I note that the request for approval of physiotherapy treatment, which Dr Oppermann was asked to provide an opinion about in the supplementary report, was sent to the respondent on 8 June 2021. As it was that request for approval of the physiotherapy treatment on 8 June 2021 which led to the dispute which is the subject of the reviewable decision, the respondent could have asked Dr Opperman for the supplementary report as early as 8 June 2021, and certainly before the reviewable decision was made on 24 June 2021. When the supplementary report was requested, on 10 August 2021, it was provided by Dr Oppermann within three days. This leads to the conclusion that the information contained in the supplementary report was reasonably obtainable by the respondent and therefore available to the decision-maker before the reviewable decision was made, because the report could have been requested and, presumably, provided before 24 June 2021.
The objects of the MAI Act set out in section 6 include:
6 Objects of Act
…
(d) promote and encourage the early, quick, cost-effective and just resolution of disputes
Consistent with this object, the language used in sub-sections 197(2) and (3) of the MAI Act makes it plain that the ACAT must only give leave to a party to present information or evidence not presented to the decision-maker before the reviewable decision was made, when that information or evidence could not have been reasonably obtained before the application for external review is lodged in ACAT. By encouraging parties to do all that is reasonably possible to obtain all relevant information before external review of the decision is sought from the ACAT, disputes about decisions are more likely to be resolved during the internal review process set out in the MAI Act, thus promoting the early, quick and cost‑effective resolution of disputes. This avoids the delay and expense of making an application for external review.
The Motor Accident Injuries (Treatment and Care) Guidelines 2019 (MAI Guidelines) made under section 487 of the MAI Act, provide guidance to insurers about approving and making payment for an injured person’s treatment. Guideline 3.1 provides that, to inform a decision about the approval of treatment and care expenses, the insurer may ask for an assessment of the injured person by a medical expert. It is important to note that Guideline 3.1 applies to the operation of the process set out in sections 120 and 121 of the MAI Act, that is before a dispute about treatment benefits is lodged with the ACAT. Guideline 3.1 also supports the approach whereby the insurer obtains all relevant information during making the initial decision and the internal review process and before the applicant seeks external review by the ACAT.
The ACAT’s objects require the Tribunal to encourage parties to comply with the decision-making process set out in the relevant legislation (see section 6(f) of the ACT Civil and Administrative Tribunal Act 2008). In this case it is evident from the provisions of subsections 197(2) and 197(3) of the MAI Act and the MAI Guideline referred to in the previous paragraph, that the MAI legislation sets out a decision‑making process which requires parties to obtain and present all reasonably available information to the decision-maker as early as possible, rather than wait until the external review phase before doing so.
In this case, in March 2021 the respondent sought and obtained from Dr Oppermann an assessment of the applicant’s need for treatment arising out of the injuries caused by the motor accident. The decision‑maker relied on that report to make the reviewable decision. The supplementary report, which the respondent seeks to rely upon, does no more than make reference to the physiotherapy treatment for which the applicant sought approval on 8 June 2021, and repeats the opinion expressed by Dr Oppermann, in the earlier report, that the applicant’s motor accident injuries had resolved and that the applicant does not require any further treatment for those injuries.
In my view the information in the supplementary report is of little, if any, value in the review process of the decision under review. If the respondent considers the supplementary report was necessary to support the reviewable decision, it could have sought the supplementary report when it received the applicant’s request for approval of the physiotherapy treatment, before making the initial decision on 9 June 2021, or before the internal review of that decision was carried out and the reviewable decision made on 24 June 2021.
No reason has been provided as to why the supplementary report was not obtained by the respondent before the reviewable decision was made. Accordingly, the application for leave to present the supplementary report in these proceedings is denied. Had the supplementary report contained information which I considered would assist the Tribunal in its deliberations of the application for external review, I would have sought further submissions from the respondent as to the reasons, if any, the report was not obtained before, or during, the internal review stage. However, given that I do not consider that the report can assist the Tribunal, I have not done so.
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Acting Presidential Member T Kyprianou

Date(s) of hearing	On the papers
Solicitors for the Applicant:	Ms S Slockee, Maliganis Edwards Johnson Barristers and Solicitors
Solicitors for the Respondent:	Ms V Parkins, Moray and Agnew Solicitors