Neish v Insurance Australia Limited ACN 000 016 722 Trading as NRMA (Motor Accident Injuries) - [2022] ACAT 24

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NEISH v INSURANCE AUSTRALIA LIMITED ACN 000 016 722 TRADING AS NRMA (Motor Accident Injuries) [2022] ACAT 24

MAI 16/2021

Catchwords: MOTOR ACCIDENT INJURIES – application for review of insurer’s decision pursuant to section 193 of the Motor Accident Injuries Act 2019 denial of liability for treatment and care benefit – whether treatment relates to injury resulting from motor accident – whether treatment is reasonable and necessary – information available to decision-maker assessing entitlement – whether recovery plan is a necessary document which must be considered by decision‑maker – whether updated recovery plan necessary when deciding if treatment not in the plan is reasonable and necessary

Legislation cited: Motor Accident Injuries Act 2019 ss 6, 67, 68, 113, 121, 122, 123, 124, 125, 126, 127, 129, 187, 193, 197, 487
Safety Rehabilitation and Compensation Act 1988 (Cth) s 37

Subordinate

Legislation cited: Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 s 6
Motor Accident Injuries (Internal Review) Guidelines 2019 4.2.5, 4.2.6
Motor Accident Injuries (Treatment and Care) Guidelines 2019 3.1.1, 3.2.1, 3.2.2, 4.1.2, 4.2.3, 4.4.2, 4.4.3, 4.6.2

Cases cited:Kioa v West (1985) 159 CLR 550
McGuinness v Comcare Australia [2007] FMCA 1486
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Williams v AAI Limited Trading as GIO [2021] ACAT 100

Tribunal:Acting Presidential Member T Kyprianou
Date of Orders:  28 March 2022
Date of Reasons for Decision:      28 March 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          MAI 16/2021

BETWEEN:

ERROL NEISH

Applicant

AND:

INSURANCE AUSTRALIA LIMITED ACN 000 016 722 TRADING AS NRMA
Respondent

TRIBUNAL:Acting Presidential Member T Kyprianou

DATE:28 March 2022

ORDER

The Tribunal orders that:

The respondent’s internal review decision dated 24 June 2021 to reject liability for defined benefits is set aside and the matter remitted to the respondent for reconsideration in accordance with the Motor Accident Injuries Act 2019 (MAI Act) and the relevant Motor Accident Injuries Guidelines.
The same provisions of the MAI Act and Guidelines apply to the reconsideration referred to in order 1 and the same time periods for making the reconsideration decision apply as if order 1 was an application for internal review of the decision to reject liability received by the respondent on the day after the date of these orders.
The applicant is to lodge with the tribunal and give to the respondent an itemised list of costs he has incurred, in accordance with regulation 6(2) of the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 and any submissions he wishes to make on the issue of costs by 4 April 2022.
The respondent is to lodge with the Tribunal and give to the applicant any submissions it wishes to make, if any, in relation to the application for costs and
the applicant’s list of costs, or alternatively advise the tribunal and the applicant that it does not propose to make any submissions by 11 April 2022.

The Tribunal notes:

The Tribunal will make a decision on the papers in relation to the applicant’s application.

………………………………..
Acting Presidential Member T Kyprianou

REASONS FOR DECISION

The application in this matter has been made pursuant to section 193 of the Motor Accident Injuries Act 2019 (MAI Act) seeking external review of the respondent’s internal review decision dated 24 June 2021 to reject liability for eight sessions of physiotherapy treatment in respect of injuries sustained by the applicant in a motor accident on 21 August 2020.

Background facts

The applicant lodged with the respondent a Defined Benefits Application (DBA) dated 24 August 2020 for injuries he claimed he sustained in a motor accident in the Australian Capital Territory on 20 August 2020.
The applicant was the driver of a motor car which was hit from behind while stationary causing it to collide with the car in front. In the DBA he stated that his injuries included headache, sore neck and shoulders and aching back.
The applicant’s general practitioner (GP), Dr Leerdam, provided a report dated 14 September 2020 in support of the DBA. It provided a diagnosis of whiplash, backpain and left sciatica. He said that the applicant had previously suffered from cervical spondylosis. He prescribed physiotherapy in the medium term (4‑13 weeks) to treat the injuries. Dr Leerdam subsequently provided certificates for capacity for work to the applicant[1] for the period up to 23 July 2021 in which he described the applicant’s condition as an exacerbation of a pre-existing condition suffered in a motor vehicle accident on 21 August 2020. In those certificates the GP recommended physiotherapy for the applicant’s condition.
[1] MAI documents pages 225-230
The applicant attended Good Sport Physio Clinic for physiotherapy treatment. The respondent accepted liability for 22 physiotherapy sessions between 1 September 2020 and 8 June 2021.
On 23 March 2021, the applicant attended a medical examination arranged by the respondent with Dr Brett Oppermann, occupational physician.
On 8 June 2021, the applicant’s treating physiotherapist requested the respondent to approve a further eight sessions of physiotherapy treatment to treat his cervical spine.[2]
[2] MAI documents pages 177-181
The respondent denied liability for this physiotherapy treatment.
The applicant asked for that decision to be reviewed internally by the respondent.

Summary of the reviewable decision

The reviewable decision sets out a detailed history of the applicant’s pre accident medical history relevant to the injuries he sustained in the motor accident, the subject of his claim It also sets out details of the treatment approved by the respondent up to the date of the reviewable decision. This consisted of 22 physiotherapy sessions and six massage sessions, all provided by Good Sport Physio Clinic.
The decision makes reference to the treatment approval requests from the treating physiotherapist, made on behalf of the applicant and dated 19 October 2020, 1 December 2020, 27 January 2021 and 8 June 2021. The request forms provided details of the applicant’s clinical assessment, his symptoms, his capacity for work, his ability to carry out activities of daily living, progress made by the applicant since treatment commenced, the goals of the treatment and details of the treatment for which approval was requested. The information set out in those forms was considered by the decision‑maker when making the reviewable decision.
The reviewable decision also refers to Dr Oppermann’s report and his opinion that as of 23 March 2021 when the applicant was examined by Dr Oppermann, the applicant’s symptoms attributable to the motor accident had resolved. Dr Oppermann said in his report that the applicant did not require any treatment for the effects of the accident and that any impairment or incapacity was due to his pre-existing degenerative condition alone.
The decision‑maker also referred to “the Clinical Framework for the Delivery of Health Services - June 2012”. It is not clear from the decision who published the Clinical Framework. Excerpts from the Clinical Framework are set out in the decision and were relied upon to support the reasoning for the decision.
The decision-maker concluded that the applicant had already received a reasonable and necessary amount of physiotherapy and that the medical evidence does not indicate it is reasonable and necessary to support the request for treatment dated 8 June 2021.

External review by the Tribunal

It is common ground that the decision of the respondent dated 24 June 2021 is an ACAT reviewable decision as defined by section 192 of the MAI Act.
Section 197 of the MAI Act relevantly provides:
197        External review—decision
(1)     In deciding an application for external review of an ACAT reviewable decision, the ACAT must, by order—
(a)affirm the decision; or
(b)amend the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter for reconsideration by the insurer that made the decision (the decision-maker) in accordance with any direction of the ACAT.
(2)     In deciding the application for external review, the ACAT must only consider the information that was available to the decision-maker when the decision was made.
Though section 197 is not explicit as to whether the tribunal can conduct a merits review of the reviewable decision or whether it can only consider errors of law or fact affecting the decision, section 193(1) of the MAI Act provides that an application to the ACAT for external review of a reviewable decision can be made by the people listed in the section on a question of law or fact.
The limitation on the information which the tribunal can consider in conducting the review set out in section 197(2) of the MAI Act also supports that its role is to conduct a review of the legality of the decision rather than a merits review. The Explanatory Statement of the Motor Accident Injuries Bill 2019 confirms that this was the legislators’ intention about the role of the tribunal.
Clause 194: External review- decision
In deciding an application ACAT must either affirm, amend, or set aside the decision and: substitute another decision in its place; or remit the matter back to the insurer. As the application is not a merit review, only a review on questions of law and fact, ACAT can only consider information that was available to the insurer. However, ACAT may give permission for a person involved in the external review to admit information that was not reasonably available at the time the insurer made the decision. This may apply in the circumstances where a person has had a medical examination conducted, however, the report was not available before the decision was made.
It is therefore clear that in conducting an external review, the role of the tribunal is to determine whether the reviewable decision is affected by any errors of law or fact. The decision can be set aside or amended only if it was made by engaging in an error of law or by relying on an error of fact.
The question that I must consider in this matter is therefore the lawfulness of the decision rather than its merits.[3] To assess this I need to consider whether the relevant requirements of the MAI Act and the Guidelines have been substantially complied with, whether a proper fact-finding process has been engaged in and whether procedural fairness was observed in reaching the decision. As the High Court stated, “in the absence of a clear legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions.”[4]

Documents available to the Tribunal

[3] see also Williams v AAI Limited Trading as GIO (Motor Accident Injuries) [2021] ACAT 100 at [50]
[4] Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [30]

Subject to section 197(3), section 197(2) provides that when reviewing the decision the tribunal must only consider the information that was available to the decision‑maker. By necessary implication this provision requires the respondent to provide to the tribunal all of the information it had available when making the decision. Consistent with this requirement the tribunal issued a direction on 21 July 2021, that the respondent lodge that information with the tribunal and provide it to the applicant. On 10 August 2021, the respondent lodged a bundle of documents titled “Reasons for decision and relevant enclosures”. Those documents are referred to in these reasons for decision as “MAI documents”. I note at this juncture that the documents do not include any file notes of conversations between the applicant and officers of the respondent during which he provided information which he regarded as pertinent to his claim. It is clear from references in some of the MAI documents lodged that at least one such conversation took place.[5]
[5] MAI documents page 240
Any information provided by the applicant to the respondent about his claim that was available to the internal review decision-maker, is information that was available to the decision-maker when making the reviewable decision. In my view, that information ought to be provided to the tribunal by way of contemporaneous file notes made by the recipient of the information because it is relevant in the review of the decision and the fact finding process the respondent engaged in in making the decision.
I note further that the document referred to in the reviewable decision titled “Clinical Framework for the Delivery of Health Services -June 2012”, is not included in the MAI documents lodged, though the document was considered by the internal review decision‑maker in reaching the reviewable decision. Though it does not materially affect the outcome of this external review decision, that document also ought to have been included in the documents lodged by the respondent as it contained information available to the internal review decision‑maker.

The hearing

At the tribunal hearing of the application for review both parties were represented by counsel.
In summary the applicant submitted that:
(a)the reviewable decision should be set aside because contrary to sections 123 and 127 of the MAI Act, the respondent did not develop and review a recovery plan for the applicant. It was submitted that the absence of a recovery plan renders the decision of the respondent to deny liability for physiotherapy treatment invalid.
(b)Dr Oppermann’s report should be disregarded because Motor Accident Injury (Treatment and Care) Guideline 3.2.1 read together with Guideline 3.2.2 were breached by the respondent in that the applicant was not consulted before an appointment was made for him to be examined by Dr Oppermann.
(c)There is no evidence that the applicant required medical treatment for his neck or his back between 2014 and the date of the motor accident on 24 August 2020. The need for physiotherapy treatment for his neck can therefore not be attributed to pre-existing conditions or injuries. The applicant submitted that he no longer requires treatment for his back and the reviewable decision only concerns physiotherapy treatment for his neck.
In summary, the respondent submitted that:
(a)the reviewable decision was correct in law and on the facts because it was based on the only available medical evidence which addressed the issue in dispute. That evidence was the report of Dr Oppermann who was an independent medical practitioner. The external review by the tribunal was not a merits review and unless there was a demonstrable error of law or fact the decision had to be affirmed.
(b)There was a recovery plan in place which appears at pages 191 to 199 of the MAI documents. It was provided to the applicant, his doctor, his physiotherapist and the rehabilitation provider appointed by the insurer as a draft recovery plan. The applicant did not sign that draft recovery plan and the respondent cannot compel the applicant to sign it. However, having been given the draft recovery plan the applicant’s request for further physiotherapy treatment, not covered in the draft plan, had to be requested by the applicant and assessed by the respondent under section 126 of the MAI Act and that is what the respondent has done.
(c)The respondent was not obliged under the Motor Accident Injury (Treatment and Care) Guidelines to consult the applicant before requiring him to attend the appointment with Dr Oppermann. These Guidelines only require such consultation in circumstances where the referral for medical examination relates to a dispute between the parties and the referral to Dr Oppermann was not due to such a dispute. The respondent properly relied on Dr Oppermann’s report in reaching its decision.
At the hearing the applicant made an application pursuant to section 197(3) of the MAI Act for leave to present further information to the Tribunal, that is evidence from the applicant about what his counsel described as “factual inaccuracies” in Dr Oppermann’s report.
Counsel for the respondent opposed the application for leave for the applicant to give evidence.
I made a decision at the time of the hearing to give leave to the applicant to give oral evidence as long as that evidence was confined to the facts the applicant claims Dr Oppermann reported wrongly in his report.
At the request of counsel for the respondent I agreed to provide more detailed reasons for that decision than I provided on the day of the hearing. I do so below.

Reasons for giving applicant leave to give oral evidence

It is apparent from the email sent by the applicant to the respondent on 10 June 2021 requesting internal review of the decision to reject liability for ongoing physiotherapy[6] that the applicant took issue with some of the content of Dr Oppermann’s report. The applicant’s email is brief and does not provide details of either the aspects of Dr Oppermann’s report that he takes issue with nor the applicant’s reasons for requesting that the decision be reviewed.
[6] MAI documents page 240
The Motor Accident Injuries (Internal Review) Guidelines (MAI Internal Review Guidelines) relevantly provide at 4.2.5 that an insurer should contact the applicant as soon as practicable after receiving an application for internal review, to request any additional information or documents reasonably required for the review. There is no evidence in the MAI documents that after receiving his email requesting internal review of the decision, the insurer contacted the applicant in this case asking him to expand on the issues raised in his email. This may be because there had already been an earlier discussion between the applicant and the respondent about the matter, which the applicant refers to in his email, during which he provided any additional information. However, as I noted above, there is no record of what information, if any, the applicant provided during that discussion. The facts that Dr Oppermann based his opinion on are relevant to the conclusions he reached. If the applicant takes issue with those facts the decision-maker needs to consider the information provided by the applicant and then decide whether or not the issue taken affects the opinion the doctor expressed.
Section 197(3) of the MAI Act provides that ACAT may give a party leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made. In this case it is not clear whether the information the applicant sought leave to provide to the Tribunal by giving evidence was available to the decision-maker because there is no record of what information if any was provided during the discussion the applicant and the respondent had. If the information was previously provided this Tribunal does not have access to it. Further, the evidence the applicant provided under affirmation on which he was cross examined, could not have been provided to the internal decision-maker prior to the hearing. That affirmed evidence, as distinct from the information which may have previously been provided by the applicant was not reasonably available to the internal review decision‑maker because that review process does not allow the information provided by an applicant to be given under oath/affirmation.
The MAI (Internal Review) Guidelines require the internal reviewer to engage with the applicant and obtain from them all relevant information and documents.[7] Applicants also have an obligation under section 187 of the MAI Act to provide all information an insurer requests and reasonably requires to conduct an internal review. If the information is not requested by the decision‑maker a question arises as to whether it was reasonably available to them. An applicant who is unfamiliar with the review process may not know what information, or how much detail the information they provide should include, in order to support their claim. If the decision‑maker does not request relevant information at the time of an internal review, and the applicant later seeks leave to present the information during the external review process, it would be unreasonable to interpret section 197(3) as a bar to allowing the applicant to present information which ought to have been sought at the time of the internal review in accordance with the MAI Guidelines. In the absence of evidence of what, if any, information the applicant was requested to provide in relation to the facts relied upon by Dr Oppermann and the issues the applicant took with those facts, it would have been procedurally unfair to the applicant not to allow him to present his version of the facts reported by the doctor.

Consideration of issues in dispute

[7] Motor Accident Injury (Internal Review) Guidelines 2019, 4.2.5, 4.4.1

The dispute in this matter raises the issues of (a) whether the physiotherapy treatment the applicant sought payment for through his physiotherapist on 8 June 2021 relates to injuries he sustained in the motor accident of August 2020; and (b) whether such treatment was otherwise reasonable and necessary.
Part 2.5 of the MAI Act deals with treatment and care benefits payable to persons inured in a motor accident. The treatment and care provisions in part 2.5 provide that injured persons are entitled to benefits for treatment and care subject to certain exceptions set out in the Act. Relevantly, section 113 provides that treatment expenses incurred for treatment that is not reasonable and necessary or that does not relate to a personal injury sustained in the motor accident does not fall within the meaning of ‘treatment expense’ under the Act. Such expenses are not payable by an insurer.

Should Dr Oppermann’s report be excluded from consideration?

The respondent relies primarily on the opinion expressed in the report of Dr Oppermann dated 23 March 2021 for the finding in the reviewable decision that the physiotherapy treatment does not relate to a personal injury sustained in the motor accident but rather to the applicant’s pre-existing cervical spine spondylosis.
The applicant has submitted that Dr Oppermann’s report ought to be disregarded because the requirements of MAI (Treatment and Care) Guidelines 3.2.1 were not met when the respondent arranged the medical examination of the applicant by Dr Oppermann.
The Guidelines are made under section 487 of the MAI Act and are part of the statutory framework for treatment and care benefits.
Guideline 3.2.1 provides that an assessment of an injured person’s injuries is to be conducted by a health practitioner selected by an insurer. If the assessment is for the purpose of resolving a dispute between the insurer and the injured person an insurer should, prior to preparing a referral, consult with the injured person about the health practitioner to conduct the assessment and the issues to be referred to the practitioner.
The applicant has submitted that the referral to Dr Oppermann was for the purpose of resolving a dispute between the respondent and himself about whether he was entitled to replacement labour for his business.[8] The applicant’s counsel referred to an email dated 17 December 2020 from the respondent to the applicant to support the submission that the examination appointment with Dr Oppermann was arranged because of a dispute.
[8] Transcript of proceedings 8 December 2021, page 32
The email of 17 December 2020 does not appear in the MAI documents and it was not filed or tendered by the applicant. There is no other evidence available to the Tribunal indicating why the examination was arranged. In any event if the examination was arranged due to a dispute about entitlement for the cost of replacement labour in the applicant’s business, that dispute is not a dispute about treatment and care needs. It is a dispute about income loss and the MAI (Treatment and Care Guidelines) relied on by the applicant for the submission that Dr Oppermann’s report should be disregarded do not apply.
Section 121 of the MAI Act provides that an insurer may require an injured person to attend a health practitioner or an assessment of the injured person’s need for treatment and care.
Guideline 3.1.1 provides that an insurer may ask for an assessment of a person’s injuries:
(a)     if the insurer requires additional information to prepare or review a treatment and recovery plan
(b)     to make a decision about the approval of treatment and care expenses;
(c)     to resolve a dispute about a person’s treatment and care needs, or
(d)     to determine whether, or the extent that, the person’s injuries resulted from a motor accident.
I therefore consider that Dr Oppermann’s report should not be disregarded in the review of the reviewable decision. The report contains relevant information which the respondent was entitled to consider in deciding whether the applicant had an entitlement to treatment benefits.

Was a recovery plan an essential prerequisite in deciding if treatment should be approved

The applicant has submitted that there is no recovery plan in place in this matter and that in the absence of such a plan the decision denying the applicant benefits for physiotherapy treatment is flawed. In response the respondent has submitted that a draft recovery plan was developed and submitted to the applicant and his doctor but neither of them signed it and therefore the respondent did not issue a final recovery plan.
Section 122 of the MAI Act defines ‘recovery plan’ to mean a plan that is prepared by the relevant insurer for the motor accident and provides for the management and co-ordination of the person’s treatment and care. There is no document in the MAI documents titled ‘recovery plan’. The respondent has submitted that the document titled ‘Rehab Management Initial Needs Assessment Report’ and dated 30 November 2020, (Rehab Management Report)[9] is a draft recovery plan for the purposes of the MAI Act.
[9] MAI documents pages 191-199
Sections 123(1) and 123(3) of the MAI Act provide that if an insurer is satisfied a person is entitled to treatment and care benefits and because of the injury the person sustained in the motor accident the person is unable to undertake their pre-injury duties and activities for more than 28 days after the date they receive a receipt/late receipt notice, the insurer must give the injured person and the injured person’s doctor a draft of a recovery plan proposed for the injured person. The letter from the respondent to the applicant dated 4 November 2020 accepting liability for defined benefits[10] refers to the development of a recovery plan if the applicant is unable to return to his pre-injury duties and activities. The recovery plan would set out approved reasonable and necessary treatment and care. It is not in dispute that in this matter the insurer had an obligation to give the applicant and his doctor a draft recovery plan.
[10] MAI documents page 231
Section 123(5) provides that the insurer must give the injured person and their doctor a final version of the recovery plan within 28 days, (or any longer time stated in the MAI guidelines), of the receipt notice of the person’s application for defined benefits.
Section 124 of the MAI Act provides that the recovery plan must state the treatment and care approved by the insurer as reasonable and necessary treatment for the injured person. Section 129 of the MAI Act provides that the insurer must pay for treatment and care set out in the recovery plan.
Section 125 provides that the MAI Guidelines may make provisions about various aspects of the development of a recovery plan by the insurer. That includes information to be considered by the insurer when developing a recovery plan and the minimum requirements for a recovery plan.
MAI (Treatment and Care) Guideline 4.1.2 provides that when developing the plan, the injured person, their nominated doctor and any other health care provider must be consulted. Guidelines 4.2.2 and 4.2.3 provide that the insurer should settle a draft recovery plan no later than five days after receiving all necessary medical reports and assessments to prepare the plan. The draft plan is then to be given to the injured person and their doctor who have five days to consider the plan. If no further information is provided in response to the draft plan, the insurer must provide the final plan at the end of the consideration period. There is no requirement under the MAI or the Guidelines for the injured person or their doctor to sign the recovery plan or to consent to it.
Section 127 of the MAI Act provides that if the insurer gives the injured person a recovery plan, the insurer must review the plan at least every 13 weeks after the plan is given to the person. When reviewing the plan, the Treatment and Care Guidelines require the insurer to send any amendments to the plan made after it has been reviewed to the applicant and their doctor and allow them time to consider them and comment on them before the reviewed plan is finalised.[11]
[11] Motor Accident Injury (Treatment and Care) Guidelines 2019, 4.2.4
The legislative scheme set out in part 2.5 of the MAI Act along with the Treatment and Care Guidelines, which have been drafted to provide guidance to insurers on how to administer the scheme, aim to encourage, if not to enforce, consultation between the injured person, their treating health professionals and the insurer in deciding what is reasonable and necessary treatment for injuries sustained in the motor accident. After the consultative process is undertaken the insurer nominates that treatment in the recovery plan. The consultative process is consistent with the objects of the MAI Act which are set out in section 6 of the Act and include:
(a)     ensure benefits are available to support all people injured in motor accidents on a no‑fault basis, subject to some exclusions and limitations; and
(b)     encourage early and appropriate treatment and care of people injured in motor accidents to achieve optimum recovery and return to pre-accident levels of activity and work; and
(c)     support people injured in motor accidents to access defined benefits; and
(d)     promote and encourage the early, quick, cost-effective and just resolution of disputes;
Having determined that the applicant’s injuries were such as to require the implementation of a recovery plan under section 123 of the MAI Act, the respondent was obliged to put in place a recovery plan in order to set out the treatment and care benefits it approved for the applicant’s injuries and to review that plan at least every thirteen weeks.
Section 124 of the MAI Act provides that a recovery plan must set out the treatment and care approved by the insurer. This means the draft plan which needs to be provided to the applicant and their doctor prior to finalisation should set out the treatment the insurer proposes to approve. The Rehab Management Report in this matter does not state what treatment the respondent proposed to approve for the applicant.
Further, some of the other requirements for a recovery plan set out in MAI (Treatment and Care) Guideline 4.4.2 are not addressed in the Rehab Management Report. Apart from not including a statement of all treatment and care proposed to be approved as reasonable and necessary, the arrangements for seeking approval for any treatment and care not mentioned in the plan are not included. These are listed as minimal inclusions for a recovery plan in MAI (Treatment and Care) Guideline 4.4.2.
The Rehab Management Report states that it covers the period 3 December 2020 to 24 March 2021. Though it describes the treatment the applicant had had up to the date of the report it does not state what future treatment is approved or proposed to be approved. Under the heading “recommendations” the author stated:
Rehab Management to liaise with Mr Howland after three sessions of treatment to discuss progress and whether discharge to independent management and full clearance is still appropriate for February 2021. If this goal is not met, Mr Howland stated he would support a decision to refer on to chronic pain team at the ACT Pain Centre for further treatment.
This statement is as close as the report gets to a proposal for approved treatment.
There are no documents lodged with the tribunal which support the submission by the respondent’s counsel that the Rehab Management Report was sent to the applicant and his GP as a draft recovery plan. Counsel for the applicant conceded during the hearing that the Rehab Management Plan was sent to the applicant’s GP. He neither denied nor conceded that the applicant received that report. However, even if the report was sent to the applicant and his GP that action does not discharge the obligations of the respondent under division 2.5.4 of the MAI Act and the MAI (Treatment and Care) Guidelines in relation to the development, finalisation and ongoing review of a recovery plan for a number of reasons:
(a)Firstly, as set out above, the Rehab Management Plan does not meet the requirements for content set out in section 124 of the MAI Act and Guideline 4.4.2.
(b)Secondly, even if the Rehab Management Report was given to the applicant and his GP as a draft for their consideration, as was submitted by the respondent, a document was not then provided to the applicant or his doctor as a final plan as required by section 123(5) of the MAI Act and MAI (Treatment and Care) Guideline 4.2.3.
(c)Thirdly, section 127 of the MAI Act, which states that the insurer must review the recovery plan at least once every 13 weeks after the plan is given to the injured person, has not been complied with. There is no evidence that the Rehab Management Plan was reviewed after the period the plan stated it covered, that is 3 December 2020 to 24 March 2021, expired, or at all.
For the reasons set out in the paragraph above I do not consider that the Rehab Management Report provides for the management and coordination of the applicant’s treatment and care as set out in in division 2.5.4 of the MAI Act and it therefore does not meet the definition of ‘recovery plan’ set out in section 122 of the Act.
The applicant submitted through his counsel that the absence of a recovery plan renders the respondent’s decision to deny liability for the physiotherapy treatment the applicant sought approval for in June 2021 invalid. It was submitted that the applicant and his doctor have had no input into the decision of whether the physiotherapy treatment was reasonable and necessary or related to the applicant’s compensable injuries. Had a recovery plan been in place that input would have been provided because of the process mandated by the MAI Act and the Guidelines for developing and reviewing a recovery plan.
Counsel for the applicant referred the Tribunal to the decision of the Federal Magistrates Court in McGuiness v Comcare [2007] FMCA1486 (McGuiness). That matter concerned the Safety Rehabilitation and Compensation Act 1988 (SRC Act). However, it was submitted that parallels from the decision could be drawn which apply to the relevant provisions of the MAI Act in this case. The applicant in that matter had her worker’s compensation entitlements suspended because she refused to undertake a rehabilitation program developed by her employer. Section 37 of the SRC Act provided that if the employee failed to undertake a rehabilitation program without reasonable excuse their compensation entitlements could be suspended. Section 37 of the SRC Act also relevantly provided that in determining that an employee should undertake a rehabilitation program the employer should have regard to the employee’s attitude to the program. The court held that at the time the rehabilitation program was developed the employer had not had regard to the employee’s attitude to the program. As that was a mandatory requirement of section 37 of the SRC Act the decision suspending the employee’s entitlements was set aside. In reaching that decision the court stated that:
…[it] does not mean that the employee’s attitude should be the determining factor as to whether a program is approved and/or whether the employee is required to undertake the program…
but rather that the employee’s attitude has to be determined and given appropriate weight by the employer before deciding whether the employee should undertake a rehabilitation program.
Though McGuiness concerns a different legislative scheme, I agree with the applicant’s submission that the reasoning of the court in reaching the decision outlined above is applicable in this matter.
At the time that the applicant sought approval for payment of the physiotherapy treatment on 8 June 2021 there was no valid recovery plan in place. The failure to put in place a recovery plan and to revise it at regular intervals as required by the MAI Act and the MAI Treatment and Care Guidelines, led to the lack of opportunity for the applicant and his doctor to provide information about his treatment needs for the injuries he sustained in the motor accident.
Section 127 of the MAI Act requires the insurer to revise the recovery plan at least every 13 weeks. MAI Treatment and Care Guideline 4.6.2 and section 127(3) mandate that an amended plan must be developed in consultation with the injured person and their doctor. Such consultation would have provided the applicant with the opportunity to request his doctor to provide an opinion as to what he considered to be appropriate treatment for the applicant’s motor accident injuries as time passed. The ongoing consultation process set out in the legislation is also consistent with the objects of the MAI Act of encouraging quick, early and cost-effective resolution of disputes. If the treatment an injured person requests is considered through a consultative process it is less likely that a dispute will develop over what treatment is reasonable and necessary. As the court in McGuiness stated, this does not necessarily mean that the injured person’s views (or the opinion of their doctor, in this case) would be determinative of what treatment the insurer approves. However, the MAI legislative scheme mandates that those views be sought and given appropriate weight before a decision about approval of treatment is made. Those views were not obtained in this case, certainly not for the period over which the applicant sought and was denied the physiotherapy treatment, the subject of the reviewable decision.
Counsel for the respondent submitted that the respondent had determined the applicant’s entitlement to the treatment benefit he sought approval for on 8 June 2021 under section 126(1) of the MAI Act and that the existence of a recovery plan is therefore not a relevant issue. Section 126 provides that if the insurer gives the injured person a recovery plan, then the injured person must apply to the insurer for approval to undergo treatment and care that is not mentioned in the recovery plan. It was submitted that the applicant was given a draft recovery plan and that fulfills the requirement of section 126, such that section 126 applies to the process of applying for and approving treatment outside the recovery plan.
Section 126(2) of the MAI Act provides that the insurer may approve treatment and care that is not mentioned in the recovery plan if satisfied on reasonable grounds that the treatment and care is reasonable and necessary and will assist with the injured person’s recovery. The purpose of the section is to provide for approval of treatment not mentioned in the recovery plan. The section is drafted on the assumption that a current recovery plan is in place, not on the basis that a draft plan was given to the applicant which was never finalised. In any event, as already stated, the plan provided to the applicant and his doctor in draft form did not meet the requirements of a recovery plan set out in the MAI Act and the Treatment and Care Guidelines. The respondent had not rejected liability for defined benefits pursuant to sections 68 or 67 of the MAI Act after it received Dr Oppermann’s report. Accordingly, the respondent was required by the MAI legislative scheme to have in place a recovery plan for the applicant. If a current recovery plan was in place on 8 June 2020, which had not approved physiotherapy treatment and the applicant applied pursuant to section 126 for approval of such treatment, the insurer would have had to assess the information gathered in preparing the recovery plan, including the information provided by the applicant’s treaters, along with the other information referred to in the reviewable decision, before deciding whether to approve the treatment. Because there was no recovery plan in place, the applicant and his doctor had not had a reasonable opportunity to provide information relevant to the issue of what was reasonable and necessary ongoing treatment the applicant required for the exacerbation of his neck condition caused by the motor accident of 21 August 2020. It also meant that when deciding whether to approve the physiotherapy treatment the applicant sought on 8 June 2020, the decision‑maker only had Dr Oppermann’s medical opinion to consider and no other.

When reviewing the decision denying liability, the internal reviewer had available the certificates for capacity for work provided by the applicant’s doctor, including one of which covered the period of 8 June 2021[12] when the request for the treatment which was denied was made. That was the only medical information the applicant had submitted in support of his application for review. The certificate noted that the doctor had recommended physiotherapy but provided no details at all as to the reasons he considered it necessary for the injuries caused by the motor accident or any other pertinent opinion or information. This is hardly surprising given the purpose of the certificate was to certify the applicant’s fitness for work and not to recommend treatment. The review decision-maker relied on Dr Opperman’s report as it was the only report available which addressed the issues of the need for treatment for the injuries sustained in the motor accident. This was unfair to the applicant who made it clear in his request for internal review of the decision that he disagreed with Dr Oppermann’s assessment. It was also in breach of the legislative requirements of the scheme set out in the MAI Act for the ongoing assessment of injured persons’ eligibility for treatment and care benefits for injuries sustained in a motor accident. The failure to implement a valid recovery plan and to review it at regular intervals as required by the MAI Act and the MAI (Treatment and Care) Guidelines amounted to an error of law. That error of law affects the reviewable decision because the process of deciding what was reasonable and necessary treatment for the applicant set out in the MAI Act was not followed in reaching the decision. The decision must therefore be set aside.

Some further aspects of the reviewable decision

[12] MAI documents pages 229-230

There are two other aspects of the reviewable decision which warrant mention.
The first arises out of MAI (Internal Review) Guideline 4.2.5 which states that the insurer should contact the applicant to request any additional information required for the review. Given the applicant stated that he did not agree with Dr Opperman’s opinion, which the decision of 9 June 2021 denying liability for physiotherapy treatment relied on, it would have been consistent with Guideline 4.2.5 and the spirit of the MAI legislative scheme which encourages fairness in decision-making and early resolution of disputes, to request the applicant to obtain additional information from his treating doctor if he wished to challenge Dr Oppermann’s opinion. This would have been a proper request under Guideline 4.2.5, especially in light of the fact that the consultative process with the doctor mandated by the recovery plan development and review had not taken place and thus the applicant was not provided with the opportunity to request his doctor to offer information on the treatment he had recommended.
The second arises out of the reliance by the internal review decision‑maker on the document described as “the Clinical Framework for the Delivery of Health Services – June 2012”. The excerpts from that document reproduced in the reviewable decision tend to suggest that the reviewer was not satisfied that the applicant’s treaters empowered him to self-manage his condition independently without the need for ongoing treatment from them. It is also suggested that the applicant’s treatment providers ought to have recommended that he try some other treatment given that he had a number of physiotherapy sessions without long term benefit. The difficulty with relying on this Clinical Framework, apart from the fact that it was not properly referenced, is that the applicant and his treaters were not provided with the opportunity to consider it and comment on the conclusions drawn by the decision-maker. Procedural fairness and its requirement of the fair hearing rule means that if a document is to be relied upon to make a decision about a person’s interests, a reasonable opportunity needs to be provided to the person first so that they may comment on the document before the decision is made.[13]

Conclusion

[13] Kioa vWest [1985] 159 CLR 550, 563

The reviewable decision denied liability for the physiotherapy treatment sought by the applicant on 8 June 2021 for two reasons. The first was based on Dr Oppermann’s opinion that any symptoms arising out of the motor accident injuries the applicant sustained had resolved by March 2021 and he therefore did not require any treatment attributable to the motor accident. The second reason was that the respondent had already paid for a number of physiotherapy treatments but the applicant had not gained long term benefit for his neck injury from that treatment and therefore his reported ongoing symptoms of stiffness and limitation of movement of the neck were reflective of the fact that further physiotherapy treatment was not reasonable or necessary.
The first reason was affected by an error of law because it relied entirely on the medical opinion of Dr Oppermann without giving the applicant the opportunity to provide any input from his nominated doctor about his treatment needs which a recovery plan would have provided.
The second reason was not based on any medical opinion. It relied instead on the excerpts quoted in the decision from the ‘Clinical Framework for the Delivery of Health Services’. As noted above, the applicant and his treatment providers were not provided with an opportunity to comment on that document and the inferences drawn by the decision-maker from it about the applicant’s treatment. Further, the document is not properly referenced. Accordingly, I consider that the conclusion reached that the applicant had already received a reasonable and necessary amount of physiotherapy as previously paid by the insurer and that it was not reasonable to support any further physiotherapy treatment was flawed. This is because the applicant was not given an opportunity to be heard on the document relied upon to support the conclusion or to ask those treating him to provide an opinion on that issue.
The reviewable decision must therefore be set aside.
In the absence of a recovery plan or any other information from the applicant’s doctor there is insufficient information available for the Tribunal to be able to make a substituted decision as to whether the physiotherapy treatment requested on 8 June 2021 was reasonable and necessary as a result of the exacerbation of the applicant’s neck condition caused by the motor accident of 21 August 2020. The matter is remitted to the respondent for reconsideration in accordance with the MAI Act and the MAI Guidelines.
In remitting the decision I note that the respondent will need to obtain additional information from the applicant’s nominated doctor and possibly his other treaters before reissuing a reviewable decision. Internal Review Guideline 5 provides guidance about the time limits within which an insurer must issue an internal review decision. Of particular relevance is Guideline 5.2 which allows the insurer an extension of 10 business days after the insurer receives any requested additional information from a third party to support the application for review, to make the reviewable decision. In other words, it is not essential that the respondent make the decision within the time frame provided for in section 191 of the MAI Act in circumstances where additional information is reasonably required to consider the application for review.
I will make orders giving the applicant and the respondent the opportunity to provide information and make submissions about the applicant’s application for costs. After the parties have had the opportunity to comply with these orders I propose to make an order in relation to the applicant’s application for costs pursuant to the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020, on the papers.

………………………………..

Acting Presidential Member T Kyprianou

Date(s) of hearing:

Counsel for the Applicant:

8 December 2021

Mr D Richards

Solicitors for the Applicant:

Counsel for the Respondent:

Ms S Slockee, Maliganis Edwards Johnson

Mr B Jones

Solicitors for the Respondent:

Ms V Parkins, Moray and Agnew Solicitors