Obeid v AAI Ltd

DETERMINATION OF REVIEW PANEL
CITATION:	Obeid v AAI Ltd t/as AAMI [2022] NSWPICMP 76
CLAIMANT:	Mohamed Obeid
INSURER:	AAI Ltd t/as AAMI
REVIEW PANEL:	Principal Member John Harris Dr Drew Dixon Dr Geoffrey Stubbs
DATE OF DECISION:	5 April 2022
CATCHWORDS:	MOTOR ACCIDENTS- The claimant was involved in a motor accident on 20 March 2020 and requested the insurer to pay for various treatment including right shoulder surgery and diagnostic blocks; an issue arose whether the Panel had power to determine a claim for medical expenses not incurred and not provided; discussion of various provisions of the Motor Accidents Injuries Act 2017 (MAI Act) including section 3.24 and Schedule 2 clause 2(b) of the MAI Act, which referred to the expenses “incurred” or provided”; observations that clause 2(b) of the MAI Act must be read in context with section 3.24 of the MAI Act; neither provision referred to expenses not incurred or to be provided; comparisons made with the Motor Accidents Compensation Act 1999 which referred to expenses “to be provided”; plain meaning consistent with other parts of the MAI Act such as section 3.27 of the MAI Act which required expenses to be verified before they could be paid; submission that MAI Act be read beneficially rejected as no purpose identified when there were contrasting objects; All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd applied; Panel determined that there was no power with the Medical Assessor and it to determine the claim; assessment revoked.
DETERMINATIONS MADE:	The Review Panel revokes the certificate dated 7 July 2021 and issues a new certificate determining that it does not have power in this matter.

Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

REASONS

Background

Mr Mohamed Obeid suffered injury in a motor accident on 20 March 2020 when the insured vehicle failed to give way and struck the back-passenger side of his vehicle.[1]
[1] Claimant’s bundle, page 45.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Obeid any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
This decision concerns whether a Medical Assessor, and on review, a Review Panel can determine whether treatment not yet provided or incurred is “reasonable or necessary in the circumstances” and/or “relates to the injury caused by the motor accident”. The issue arises from that part of the definition of “medical assessment matters” in Schedule 2 clause 2(b) of the MAI Act which provides:
“whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care.”
By letter dated 30 September 2020 the insurer accepted that Mr Obeid had suffered a non-minor injury and that the liability to make statutory payments for the claim extended beyond the 26-week period.[2]
[2] Insurer’s bundle, page 178.
By letter dated 14 October 2020 Professor George Murrell recommended arthroscopy and rotator cuff repair of the right shoulder and requested the insurer to approve the procedure.[3]
[3] Insurer’s bundle, page 183.
In a report dated 14 December 2020 addressed to the general practitioner and the insurer, Dr Tim Ho requested approval for a pain management program which included diagnostic lumbar facet joint block and caudal epidural block. [4]
[4] Claimant’s bundle, page 22.
In an internal review decision dated 26 November 2020 the insurer affirmed the claims team decision that it would not cover the cost of right shoulder arthroscopic capsular release and cuff repair.[5]
[5] Insurer’s bundle, page 187.
In an internal review decision dated 25 January 2021 the insurer varied a previous decision and agreed to pay for some treatment. It otherwise denied covering the cost of diagnostic lumbar facet joint block and caudal epidural block.[6]
[6] Insurer’s bundle, page 207.
Applications were then made by Mr Obeid to the Dispute Resolution Service for the payment of treatment and care, specifically:
(a) right shoulder surgery arthroscopic capsular release and cuff repair recommended by Professor Murrell, and
(b) diagnostic facet joint caudal epidural block as part of the Pain Management Program made by Dr Ho.
That application was unheard on the establishment date of the Personal Injury Commission (the Commission).[7] Medical Assessor Woo was then allocated the matter and asked to determine whether either treatment relates to the injury caused by the motor accident and whether they are reasonable and necessary in the circumstances.
[7] See s 14B of the Personal Injury Commission Act 2020.
Medical Assessor Woo issued a medical assessment certificate dated 7 July 2021. He concluded that Mr Obeid aggravated a pre-existing degenerative rotator cuff tear and sustained a soft tissue injury to the lumbar spine in the motor accident. The Medical Assessor otherwise concluded that neither of the treatments relate to the injury caused by the motor accident or were reasonable and necessary in the circumstances.

The review

A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[8] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[8] Section 7.20 of the MAI Act.
The application for referral to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[9]
[9] Section 7.26(10) of the MAI Act.
On 21 September 2021, the President’s Delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[10]
[10] Section 7.26(5) of the MAI Act.
The new review provisions provide[11] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Commission.
[11] Section 7.26(5A) of the MAI Act.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[12]
[12] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[13]
[13] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[14]
[14] Section 7.26(6) of the MAI Act.
The Panel issued a Direction to the parties requesting a provision of respective bundles. The parties eventually complied with this Direction. The claimant also provided a report of Dr Richa Rastogi dated 7 December 2021 and digital scans.[15]
[15] Document AD9.
The Panel issued a further Direction dated 18 March 2022 in the following terms:
“The Panel raises with the parties whether there is power by a medical assessor, and on review, by a Review Panel, to determine a claim for medical expenses that have not been incurred under the Motor Accident Injuries Act, 2017 (the MAI Act).
The parties are specifically referred to Division 3.4 and Schedule 2 (particularly the definition of “medical assessment matters”) of the MAI Act and clauses 4.101 and 4.102 of the Motor Accident Guidelines (version 8).”
The parties filed submissions pursuant to the further direction.

Submissions

Insurer’s submissions

The insurer submitted that the application must be dismissed because the subject matter of the dispute was not a “medical assessment matter” for the purposes of Schedule 2 clause 2(b) of the MAI Act. It submitted that the matter in issue is the question of the insurer declining to fund proposed treatment and that a fair reading of those provisions concern treatment already “provided” to the claimant.

Claimant’s submissions

The claimant referred to the insurer’s submissions and noted that if there is no jurisdiction then “both the assessment of [Medical Assessor] Woo and any Review cannot stand”.
The claimant referred to a number of determinations issued by the insurer in respect of incurred medical expenses and proposed treatment. He noted that the President’s Delegate accepted that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The claimant submitted that the certificate of Medical Assessor Woo is considered binding pursuant to s 7.23 of the MAI Act and “the implication of the assessment is that it is binding in relation to the proposed treatment”.[16]
[16][16] Claimant’s submissions, [5].
The claimant noted that the insurer had accepted that the psychiatric injury was “non-minor” and that the parties agreed that it was unnecessary to determine whether the physical injuries were non-minor. The insurer has continued to pay for the costs of treatment for the psychiatric injury and some physical injuries after 26 weeks, however, had relied on Medical Assessor Woo’s determination to deny other treatment for some of the physical injuries.
The claimant referred to AFD v Allianz Ltd[17] where Member Cassidy noted that, whilst it was not clear, there were two ways in which treatment and expenses could be paid, either by reimbursement to the claimant or directly by the insurer to the treatment provider.
[17] [2019] NSWDRSMR 130.
The claimant also referred to the decision of Adamson J in Stanizzo v AAI Ltd[18] when the Court found that the Medical Assessor failed to accord procedural fairness by failing to address an argument and failed to provide adequate reasons.[19] Reference was also made to the Review Panel decision of Bradley v Allianz Australia Ltd.[20]
[18] [2021] NSWSC 1077 (Stanizzo).
[19] Stanizzo at [13] – [14].
[20] [2021] NSWPICMP 226 at [22].
The claimant noted that in these three matters “the decision makers were able to consider treatment which had not been incurred as it related to whether the treatment was reasonable and necessary and causally related”.[21]
[21] Claimant’s submissions, [16].
The claimant noted that s 3.28(3) of the MAI Act referred to an entitlement to statutory benefits “incurred more than 26 weeks after the motor accident” if otherwise authorised by the Motor Accident Guidelines (the Guidelines). Specifically, the claimant noted clauses 4.76 - 4.77 of the Guidelines, which concerned how the insurer should manage a claim for treatment expenses and the principles which should be considered.
The claimant noted that the requirement of “incurred” is not a pre-condition when the insurer is asked to pre-approve the treatment. In those matters, the issue is causation and whether the treatment is considered reasonable and necessary.
It was submitted that the Commission has jurisdiction to consider the issue of causation and what is reasonable and necessary as it is within the objects of the MAI Act. Reference was made to the objects when it was submitted:[22]
“It is apparent from the above that the prime objects of the [MAI] Act are to ensure fairness and to encourage the early and appropriate treatment and care of injured persons in order to assist them to return to work or other activities, and that the Act is to be interpreted in such a way as to promote the objects of the Act. …. In short, this is legislation which must be construed beneficially for an injured member of the public who, in this case, through no fault of his own and without warning was struck by the negligent driver, whilst driving.”
[22] Claimant’s submissions, [20].
The claimant submitted that allowing the recommended treatment would best promote the objects of the MAI Act. The insurer’s denial of the treatments was “evidently unfounded, unfair, unreasonable and constitutes an improper exercise of the insurer’s discretion”.
The claimant submitted that the Commission is bound in its function to determine disputes. If it is not a medical assessment, then the issue should be determined either as a merit review or in another jurisdiction.
Pursuant to s 7.17(a) of the MAI Act, the insurer created a medical dispute in its denial of the claim. The medical dispute was brought to the Commission who referred the matter to a Medical Assessor. A review is allowed from that assessment “as part of procedural necessity and pursuant to the rules and regulations of the Commission”.[23] The dispute is not limited to treatment that has been incurred but encompasses a dispute as to whether the accident caused or contributed to the need for recommended treatment and whether the treatment was reasonable and necessary.

Statutory provisions
[23] Claimant’s submissions, [24].

An insurer is required to pay statutory benefits pursuant to Part 3 of the MAI Act. These benefits are paid even if the motor accident was caused by the fault of the driver of the vehicle (s 3.1). The types of statutory benefits are funeral expenses (Division 3.2), weekly payments (Division 3.3) and treatment and care expenses (Division 3.4).
Treatment and care expenses are not payable as a component of any damages that may be awarded (s 4.3) which are restricted to damages for non-economic loss (Division 4.3) and specific categories of economic loss (Division 4.2).
The liability of the insurer to pay treatment and care expenses arises under s 3.24 of the MAI Act which relevantly provides:
“(1) An injured person is entitled to statutory benefits for the following expenses
(treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a)the reasonable cost of treatment and care,
(b)reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c)if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.”
Section 3.26 of the MAI Act provides for the payment of reasonable expenses incurred in employing a person to provide domestic services to the claimant’s dependents subject to various restrictions. The section is expressed in terms of expenses incurred in employing a person, that is, the expense has been paid by the claimant.
Section 3.27(1) of the MAI Act provides that “[n]o statutory benefits are payable under the Division unless the expenses are properly verified in accordance with the Motor Accident Guidelines”.[24] The section provides that the Guidelines may make provision for how expenses are verified including that the expenses have been incurred and the treatment and care has been provided.
[24] Version 8, Effective from 17 December 2021.
Clause 4.101 of the Guidelines sets out relevant criteria for the payment of an invoice where it is issued directly to the insurer from a treatment or care provider. That clause includes (at (g)) the date of the invoice must be on or after the last date of the service.
Clause 4.102 provides that clause 4.101 does not apply for reimbursement to the claimant and relevantly states:
“These expenses should be reimbursed to the claimant by the insurer on provision of a receipt confirming the expenses incurred, where the insurer has provided pre-approval and/or the expenses are reasonable and necessary in the circumstances. Insurers should request details of regular service providers to establish direct billing and reimbursement between the insurer and provider to reduce the financial burden on the claimant.”
Section 3.31 otherwise provides that the Guidelines may include provision limiting the amount of statutory benefits payable and approving particular treatment and care.
The liability to pay treatment and care expenses is restricted by various matters. Section 3.28(1) of the MAI Act limits statutory benefits for treatment and care incurred more than 26 weeks after the motor accident if the person was wholly or mostly at fault or the person’s only injuries were minor injuries. Section 3.28(3) provides an exception to s 3.28(1) and specifies that the Guidelines may make provision for the payment of those expenses “if the treatment or care will improve recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances”.
For those categories of claims where there is an ongoing liability by the insurer to pay treatment and care expenses (specifically for non-minor injuries), s 3.45 provides that the Lifetime Care and Support Authority may agree with the insurer to assume responsibility for the payment of treatment and care expenses after a period of five years.
Schedule 2 sets out how various matters are classified for the purposes of Part 7 of the MAI Act. The Schedule is split into three areas. These areas are “Merit review matters”, “Medical assessment matters” and “Miscellaneous claims assessment matters”.
Of relevance to the present issue are the following categories of matters:
Merit review matters include:
·        whether the cost of treatment and care provided to the claimant is reasonable (Sch 2 cl 1(i)), and
·        whether for the purpose of s 3.28 expenses have been incurred after the 26-week period (Sch 2 cl 1(l)).
Medical assessment matters include:
· whether treatment and care provided to the injured person is reasonable and necessary or relates to the injury caused by the motor accident for the purposes of s 3.24 (Sch 2 cl 2(b)), and
·        whether for the purposes of s 3.28 treatment or care provided to the injured person will improve recovery (Sch 2 cl 2(c)).
Miscellaneous claims assessment matters include an extensive list of matters with the following “catch all” in Sch 2 cl 3(n):
·        any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule.

Principles of statutory construction

As the plurality stated in Military Rehabilitation and Compensation Commission v May[25] 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[26] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[27]
[25] [2016] HCA 19 (May) at [10].
[26] [1998] HCA 28 at [69]–[71].
[27] [2009] HCA 41 (Alcan) at [47].
In Grain Growers Limited v Chief Commissioner of State Revenue (NSW)[28] 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)
[28] [2016] NSWCA 359 at [108].
In SZTAL v Minister for Immigration and Border Protection[29] the 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)
[29] [2017] HCA 34 at [14].

Application of principles

A relevant change to the quantification of damages under the MAI Act compared to the Motor Accidents Compensation Act 1999 (the MAC Act) is that the MAI Act excludes treatment and care expenses. The entitlement for treatment and care is now a statutory benefit which is limited in accordance with the terms of the MAI Act. One such limitation is that injuries assessed as “minor” are limited to a period of six months from the date of the accident, subject to some exclusions in s 7.28.
Both the MAC Act and the MAI Act define medical assessment matters. In some circumstances the medical certificate is conclusive evidence of the medical assessment matters certified.[30]
[30] Section 7.23 (2) of the MAI Act and s 61(2) of the MAC Act.
Section 58 of the MAC Act defines various medical assessment matters including:[31]
“whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances.”
[31] Section 58(1)(a) of the MAC Act.
A medical assessment matter for treatment and care under the MAC Act, like the MAI Act, may be referred to a Medical Assessor, and on review, to a review panel.[32]
[32] Sections 60 and 63 of the MAC Act.
The significance between a medical assessment matter in the MAC Act and the MAI Act relating to treatment and care is that the MAC Act covers treatment “to be provided” as well as treatment “provided”.
The words “to be provided” have been removed from the relevant medical assessment matter in the MAI Act.
Accordingly, the ordinary meaning of a medical assessment matter in clause 2(b) of the MAI Act is that the treatment or care has been provided and does not extend to treatment “to be provided”.
The claimant referred to the issues of causation and “reasonable and necessary” as matters of jurisdiction in the Commission but failed to address the past tense in clause 2(b). Reference was otherwise made to the meaning of “incurred”, a word that appears in s 3.24 of the MAI Act.
It is difficult to read words into clause 2(b) when the words “to be provided” were included in the MAC Act and seemingly intentionally left out of the relevant provision in the MAI Act. That can be contrasted with various provisions that have been copied over from the MAC Act to the MAI Act.
Whilst the submission was not made that the words “to be provided” should be read into that part of the definition of medical assessment matters, it is difficult to accept that such an interpretation would satisfy the strict limitations of when words can be read into a provision.
The test for reading words into a statutory provision is articulated in Taylor v The Owners-Strata Plan No 11564[33] where the plurality stated:[34]
“The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ’too big, or too much at variance with the language in fact used by the legislature’.”
[33] [2014] HCA 9 (Taylor).
[34] At [38].
Consideration must be given to the context of the provision. This is emphasised in clause 2(b) because it expressly refers to s 3.24 of the MAI Act.
The wording of s 3.24 is to expenses “incurred in connection with providing treatment and care”. The word “incurred” is used in the context of the present tense of “providing” treatment and care. The phrase is best described as being in the past tense because the word “incurred” describes the balance of the relevant passage. While it is arguable that the context of “incurred” in s 3.24 is not limited to a past tense, in our view the preferred construction of the wording suggests that the expenses have already been incurred.
This interpretation is consistent with s 3.27 of the MAI Act. Section 3.27 provides that no statutory benefits are payable unless the expenses are verified in accordance with the Guidelines. The Guidelines (to the extent that they may be relevant if at all) emphasise the past tense, such as clause 4.102 (set out at [42] herein), which refer to expenses being reimbursed to the claimant.
Section 3.24 does not provide an entitlement to enforce a claim for future expenses. This interpretation is consistent with the unambiguous mandatory requirement in s 3.27 that no statutory benefits are payable unless the expenses are verified.
There is an indication that the MAI Act contemplates some treatment and care that may be enforced as a future entitlement. Treatment or care that will “improve the recovery of the injured person” in s 3.28(3), as an exception to the 26-week limitation set out in s 3.28(1), is suggestive of future treatment and/or a continuum of treatment. However, this is the only provision within the Division which appears to provide for a future expense.
Section 3.24 otherwise refers to an injured person’s entitlement to recover statutory benefits for treatment and care that have been “incurred in connection with providing treatment and care”.
The meaning of “incurred” in s 8.10 of the MAI Act in the context of the recovery of legal costs and other expenses was discussed in AAI Ltd trading as GIO v Moon[35] when the Court held that the word meant “an actual liability to pay”. Wright J stated:
“110. The context of s 8.10 and the fact that what is being incurred are legal costs, indicate that the relevant, ordinary English meaning of “incur” is “to become liable for or subject to” and, in particular, to become liable to pay costs for legal services provided to the person in question. The word “incurred” has also been considered on numerous occasions, in a similar but not identical context, where courts have addressed the question whether a loss or outgoing was “incurred” in a particular year of income, for the purposes of the applicable taxation legislation. In that context, the High Court has explained that the question of whether an outgoing was “incurred” depended on whether the taxpayer was under a present liability to make the relevant payment: see for example Nilsen Development Laboratories Pty Ltd v Federal Commissioner of Taxation[1981] HCA 6; (1981) 144 CLR 616 at 627; [1981] HCA 6 (Gibbs J).
111. Accordingly, in the context of charging and recovering legal costs as found in s 8.10, it can properly be said, in my view, that where the claimant has an actual liability to pay legal costs for services provided by a lawyer and the lawyer who provided the services has a corresponding entitlement to payment, the relevant costs have been ‘incurred’ by a claimant. Absent an existing entitlement to payment, the costs would not be said to have been ‘incurred’. It is not necessary, however, that the claimant has actually paid the legal costs. An actual liability to pay, with the concomitant entitlement to be paid, is sufficient.”
[35] [2020] NSWSC 714 (Moon) at [110] - [111].
There is a rule of construction that the same words appearing in different parts of a statute have the same meaning “unless there is reason to do otherwise”: Registrar of Titles (W.A.) v Franzon.[36]
[36] [1975] HCA 41 at [11] per Mason J (Barwick CJ and Jacobs J agreeing).
The meaning of “incurred” discussed in Moon in the context of the recovery of expenses does not assist the claimant’s submission because it was there defined as an actual liability to pay.
The claimant submitted that the medical certificate is binding pursuant to s 7.23 of the MAI Act. The section provides that the certificate is “conclusive evidence of any other matter certified”: s 7.23 (2)(b). However, that section does not enable the scope of the medical dispute to be widened by “implication” as the claimant submitted. This is because a medical dispute is defined in s 7.17 to be a dispute about a medical assessment matter. Accordingly, the certificate is constrained to the “matters referred for assessment”. There is no basis to widen the scope of the medical assessment by the terms of ss 7.17 and 7.23. On the contrary, the provision confirms that a Medical Assessor is to give a certificate limited to the scope of the medical dispute.
The claimant emphasised the power of a medical assessor to determine issues of causation and “reasonable and necessary” in the context of a medical assessment matter. Whilst that submission is correct insofar as it goes, the terms of the medical assessment matter limit the scope to “any treatment and care provided to the injured person”. The claimant’s submissions fail to address that limitation in the context of the clause and/or the section.
There is a tendency in Schedule 2 to imprecisely define the matter with the corresponding entitlement/issue in the sections of the MAI Act. One example is the definition of medical assessment matters concerning recovery in clause 2(c), which is worded differently from s 3.28(3). The relevant wording in clause 2(c) is “whether…treatment or care provided to an injured person will improve the recovery of an injured person” whereas the wording of s 3.28(3) is that the “treatment or care will improve the recovery of the injured person” and anticipates that the treatment for recovery can occur in the future.
The wording of Schedule 2 clause 2(b) does not precisely reflect the liability provision in s 3.24. The section refers to “expenses incurred in connection with providing treatment” whilst clause 2(b) refers to “treatment and care provided to the injured person…for the purposes of s 3.24”. In our view the clause is probably a slightly shorthand version of the ambit of the liability provision in s 3.24 because it refers to the section. However, reading clause 2(b) in context to encompass the ambit of s 3.24 does not mean that expenses not yet incurred are an enforceable statutory entitlement.
As the claimant correctly submitted, the purpose of the legislation is a consideration relevant to construction. It was submitted that the objects of the MAI Act include the encouragement of “early and appropriate treatment and care”. However, another object, somewhat restrictive to an injured person’s rights, is the object to keep premiums affordable.
The claimant also submitted that the MAI Act should be read “beneficially”.
It is difficult to accept the claimant’s submission that the MAI Act should be interpreted beneficially and in favour of the injured person as a general proposition, in circumstances where the MAI Act significantly reduced entitlements to common law damages that exist under the MAC Act.
The principle of reading legislation in accordance with its purpose was discussed in All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd[37] when Leeming and Payne JJA observed:[38]
“42. The applicant repeatedly invoked in support of its construction the legislative purpose, which was to benefit subcontractors in its position. But Gleeson CJ observed in Carr v Western Australia(2007) 232 CLR 138; [2007] HCA 47 at [6] that:
‘[T]he underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose.’
43. In Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd[39] it was said, by reference to Carr, that:
‘Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem.’”
[37] [2017] NSWCA 289.
[38] At [42]-[43], White JA agreeing.
[39] (2013) 248 CLR 619; [2013] HCA 36 at [40].
The difficulty with the claimant’s submission is that it did not identify the relevant provision that should be read “beneficially” although it was probably referring to both
s 3.24 and clause 2(b) and that they be read wide enough to cover expenses that were to be provided.
We do not accept that a broad beneficial interpretation applies to the MAI Act. We also do not accept that the relevant provisions should be read which would enable the present dispute to be heard as a medical assessment matter. As the Court noted in Mammoet, “stating the purpose is unlikely to solve the problem”.
The claimant correctly raised difficulties with an interpretation of the MAI Act which meant that an injured person’s right to contest the insurer’s refusal to pay for treatment that has not occurred is lost under the 2017 scheme.
There is authority that a construction “‘which appears irrational and unjust’ is to be avoided where the statutory text does not require that construction”.[40] It might be considered unjust that an injured person is left without remedy unless they incur the liability for the expense. However, we do not accept this interpretation satisfies the “unjust” criteria nor does the text require such an interpretation. Questions of the extent of statutory benefits are issues of policy and are matters for the legislature.
[40] Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [45] per French CJ, Kiefel, Bell and Keane JJ citing Legal Services Board v Gillespie-Jones [2013] HCA 35 at [48].
Whether the provision of future treatment and care expenses payable as statutory benefits under the MAI Act are justiciable before the Commission must be based on the relevant provisions of the legislation. Given the clear meaning of clause 2(b) and
s 3.24, we do not accept the submission that this interpretation is contrary to the objects of the MAI Act.
The claimant correctly identified that an insurer could agree to pay for treatment. That is recognised by various clauses of the Guidelines including clause 4.101 and referred to in AFD v Allianz Ltd. Indeed s 3.31 of the MAI Act states that the Guidelines may make provision for approving particular care and treatment. Clauses 4.76 – 4.77 of the Guidelines concern how an insurer should manage a claim for treatment expenses.
However, recognising that an insurer can agree to pay for treatment in accordance with s 3.31 is not the same as a claimant having a statutory right to enforce an entitlement for future treatment not otherwise provided by the legislation.
Finally, we note that the claimant referred to three authorities, including the superior court decision in Stanizzo. However, the present issue was not raised in any of those cases. We also do not accept the claimant’s submission that the determination by the President’s Delegate is determinative of the issue of power.
The claimant submitted that if the claim was not a medical assessment matter, then it could be determined as “either as a merit review matter, or in another jurisdiction”.
The Panel is not required to determine this issue. For the reasons expressed, we have concluded that the dispute raised before Medical Assessor Woo and on review before us, is not a medical assessment matter.
We observe that there is a “catch all” under miscellaneous claims assessment matters for any other issue of liability for statutory benefits in clause 3(n). However, our view is that clause 2(b) refers back to s 3.24 and probably encompasses the totality of any liability dispute under that provision. This interpretation of the relevant provisions would mean that clause 3(n) would have no operation with respect to any liability under s 3.24.

Conclusions

We do not accept that the current dispute for the payment of future right shoulder surgery and future diagnostic blocks is a medical assessment matter under the MAI Act. This is because a medical assessment matter is limited to “treatment and care provided to the injured person” and by extension in s 3.24, to expenses incurred in providing treatment and care for the injured person.
The treatment has not been provided and no liability to pay for the treatment has been incurred. Accordingly, the Medical Assessor and this Panel do not have the power to determine this dispute.
We agree with the claimant’s submission that if there is no power, then the determination provided by Medical Assessor Woo should be revoked. It would be unfair to leave a certificate made without power undisturbed when the Panel has the power to revoke a certificate.[41]
[41] Section 7.26(7) of the MAI Act.
The orders are set out in the Certificate at the commencement of these Reasons.

[2022] NSWPICMP 76

5 April 2022