QBE Insurance (Australia) Limited v Kim

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Kim [2023] NSWPICMP 463
CLAIMANT:	Mi Suk Kim
INSURER:	QBE
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Margret Gibson
MEDICAL ASSESSOR:	Rhys Gray
DATE OF DECISION:	15 September 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; claimant was driving her car which was hit on its left-hand side; she sustained injuries to her back, right ankle and right foot; she made an application for treatment and care for a proposed surgery on her right ankle; the Medical Assessor (MA) certified that the proposed surgery would improve the claimant’s recovery; the insurer sought a review; whether the Panel had jurisdiction; Held – the Review Panel did not have jurisdiction to determine a review application of the MA because when originally enacted the words ‘to be provided’ had been removed from Schedule 2 clause 2(b); accordingly, the definition of a “medical assessment matter” in clause 2(b) only applied to the treatment or care that has been provided; it did not extend to treatment “to be provided”; the words “to be provided” were inserted into clause 2 (b) of Schedule 2 when it was amended by the Motor Accident Injuries Amendment Regulation 2022 on 10 June 2022; decision in Obeid v AAI Ltd t/as AAMI followed and applied; additional decisions considered Kotb v AAI Limited t/as GIO and AAI Limited t/as GIO v Stojanov (No 1 and No 2).
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION ASSESSMENT OF TREATMENT AND CARE Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel has no jurisdiction to review the certificate of Medical Assessor James Bodel dated 14 April 2021 (issued 14 April 2022) because it relates to a dispute about proposed or future treatment and care.

STATEMENT OF REASONS

INTRODUCTION

On 25 May 2020 Ms Mi Suk Kim (the claimant) was driving her Toyota Corolla and wearing a seatbelt on her way to work. The claimant was travelling on Old Windsor Road at Seven Hills. As she approached the intersection with Fitzwilliam Road in Toongabbie her car was hit on its left-hand side from a car approaching from Fitzwilliam Road (the accident).
Ms Kim complained of head and neck pain, lower back pain and right foot and ankle pain. Shortly after the accident she was transported by ambulance to Westmead Hospital.
QBE Insurance Australia Limited trading as QBE (the insurer) is the relevant insurer with liability to pay any damages to Ms Kim under the Motor Accident Injuries Act 2017 (MAI Act).
Ms Kim lodged an Application for personal injury benefits.
On 14 September 2020 the insurer determined that the claimant’s injuries were minor injuries.
On 7 October 2020 the claimant’s solicitors requested an internal review of the insurer’s decision.
On 28 October 2020 the insurer issued a Certificate of Determination – Internal Review affirming that the claimant’s injuries were minor injuries.
The minor injury dispute was assessed by Medical Assessor Home who issued a certificate dated 7 June 2021.
The treatment and care dispute was assessed by Medical Assessor James Bodel who issued a certificate dated 14 April 2021. This certificate was incorrectly dated 14 April 2021. The certificate was actually completed and made available to the parties on 14 April 2022.
On 8 June 2022 insurer lodged an application for a review of the certificate of Medical Assessor Bodel.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are currently declared to be a medical assessment matter, including (b):
“whether any treatment and care provided or to be 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)”.
Schedule 2, cl 2 of the MAI Act was amended on 10 June 2022. Prior to the amendment of Schedule 2, cl 2 of the MAI Act, the words “…or to be provided …” were not in the clause.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].
[1] Section 7.20 of the MAI Act.

COMMISSION JURISDICTION AND LATE APPLICATION FOR REVIEW

The certificate of Medical Assessor Bodel was mistakenly dated 14 April 2021. The parties received the certificate on 14 April 2022.
After receiving Medical Assessor Bodel’s certificate the insurer wrote to the Personal Injury Commission (Commission) on several occasions including 19 April, 3 May, 9 May and
[2] Obeid v AAI Ltd t/as AAMI [2022] NSWPICMP 76 (5 April 2022),(Obeid)
[3] See letter from insurer dated 1 August 2022 detailing history of the review application.
19 May 2022 referring to the decision in Obeid v AAI Ltd t/as AAMI (Obeid).[2] This correspondence sought updates from the Commission as to how it would deal with a dispute about future treatment and care in light of the Obeid decision. This correspondence also advised both the Commission and the claimant’s solicitors that the insurer may lodge a review application seeking to review the decision of Medical Assessor Bodel.[3]
In its correspondence to the Commission the insurer submitted that the claimant's solicitors and the Commission had been on notice since 19 April 2022 that the insurer intended to lodge a Review Application. The correspondence also asserted that the Commission did not have jurisdiction to issue a Medical Assessment Certificate and required confirmation as to whether the Commission had jurisdiction to determine a Review application of a Certificate that was issued without the Commission having such jurisdiction. The insurer questioned whether the Certificate was valid in circumstances where the Commission did not have jurisdiction to make a determination on any future or proposed treatment.
Unfortunately, the Commission did not reply to any of the insurers correspondence which questioned whether the Commission had jurisdiction to determine the dispute about future or proposed treatment in light of the decision in Obeid.
The insurer’s solicitors then wrote a letter dated 1 August 2022 which made detailed submissions about the effect of the Obeid decision and argued that the insurer’s Review Application should be accepted.
In summary the insurer’s submissions argued that on 5 April 2022 the Obeid decision determined that Commission did not have jurisdiction to make a determination with regards to future/proposed treatment. The Commission issued the Certificate of
Medical Assessor Bodel related to future treatment/proposed treatment on 14 April 2022. The insurer wrote to the Commission on 19 April 2022 seeking the Commission’s view about the insurer’s proposed review application. The insurer argued that had a response been provided to the insurer's email of 19 April 2022, the parties would have been in a position to lodge the Review Application within the review period and/or make submissions as to whether the Certificate was valid or invalid in light of the Obeid decision. The Certificate of Medical Assessor Bodel is now deemed valid due to the amendments made to the Regulations, and therefore the Commission can determine a Review Application in respect of a valid Certificate. However, the Commission did not have jurisdiction to determine a Review Application in April 2022 or May 2022 when the parties could have lodged a Review Application.
The insurer submissions highlighted the dilemma faced by the insurer during April and May 2022. During that period, due to the reasoning in Obied, the Commission did not have jurisdiction to determine a review application of Medical Assessor Bodel’s certificate. However, after the amendments were made to cl 2 (b) of Schedule 2 of the MAI Act on 10 June 2022 giving the Commission jurisdiction, any review application brought in this case would be brought outside the 28-day limitation period for bringing a review application.
An application for review may be made under s 7.26 and must be made within 28 days after the parties to the medical dispute have been issued with the original medical assessment certificate or a longer period determined or allowed in accordance with the Commission rules.[4]
[4] Subsection 7.26 (10)
The insurer lodged an application for review of the medical assessment of
Medical Assessor Bodel on 8 June 2022 which was not within 28 days of the date on which the certificate of Medical Assessor Bodel was issued to the parties.

REVIEW PROCEDURE

The insurer lodged an application for review of the medical assessment of
[5] See insurer bundle A 6 page 2.
Medical Assessor Bodel on 8 June 2022 which was not within 30 days of the date on which the certificate of Medical Assessor Bodel. The insurer submits that Medical Assessor Bodel‘s certificate was dated 14 April 2021 but was not made available to the parties until 14 April 2022.[5]
On 7 November 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.^[6] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[6] Section 7.26(5A) of the MAI Act.
Part 5 of 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.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties on 21 February 2023 (the first Direction) which required the parties to upload into the Commission portal indexed and paginated bundles of documents they relied upon. The Panel issued a further Direction to the parties on
7 March 2023 advising the parties of the medical examination date and also requiring the claimant to bring to the re-examination copies of all CT scans, MRIs and x-rays of her right ankle and also for the parties to provide further physiotherapy and treating doctor clinical notes. Only some of the further directions to the parties were complied with by the parties and some films and clinical notes were not produced to the Panel.

TREATMENT – STATUTORY PROVISIONS

Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“3.24   Entitlement to statutory benefits for treatment and care
(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.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
(3) The Motor Accident Guidelines may provide for—
(a)  circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and
(b)  circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2).
Note—
See Part 7 and Schedule 2 for provisions relating to disputes about whether treatment and care, or the cost or treatment and care, provided or to be provided to an injured person is reasonable and necessary.”
Prior to 10 June 2022 cl 2 (b) of Schedule 2 of the MAI Act defines a medical assessment matter as “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 s 3.24 (Entitlement to statutory benefits for treatment and care)”.
As at the date of the issue of the certificate of Medical Assessor Bodel, on 14 April 2022 cl 2 (b) of Schedule 2 of the MAI Act provided:
2   Medical assessment matters
The following matters are declared to be medical assessment matters for the purposes of Part 7—
(a)  ….
(b)  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).
As at the date of the application for review of the certificate of Medical Assessor Bodel, being made by the insurer on 8 June 2022 cl 2 (b) of Schedule 2 of the MAI Act was still unamended.
Clause 2 (b) of Schedule 2 of the MAI Act was amended two days after review application made by the insurer. On 10 June 2022 cl 2 (b) of Schedule 2 of the MAI Act was amended with the inclusion of the words “or to be provided” into the provision.
The amendment was made by the Motor Accident Injuries Amendment Regulation 2022 (MAI Regulation 2022). The amendment was made by subclause 3 (2) as follows:
‘3 (2) Schedule 2, clause 2(b) Insert “or to be provided” after “care provided”.’
The MAI Regulation 2022 provided that the regulation commences on the day on which it is published on the NSW legislation website. The date of publication was 10 June 2022.
After the amendment cl 2 (b) now reads as follows (emphasis added):
2   Medical assessment matters
The following matters are declared to be medical assessment matters for the purposes of Part 7—
(a)  ….
(b)  whether any treatment and care provided or to be 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).
The amendment to cl 2 (b) of Schedule 2 was in response to a Medical Review Panel decision in Obeid that concluded that a Medical Review Panel had no power under the MAI Act to determine a claim for future treatment.[9]
[9] Obeid v AAI Ltd [2022] NSWPICMP 76 (Obeid).
Section 3.28 of the MAI Act provides that treatment and care ceases after 26 weeks where the person was mostly at fault or otherwise only received minor injuries. However, an exception to the cessation of payments is provided by s 3.28(3) which provides:
“(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”

ASSESSMENT UNDER REVIEW

The dispute was originally referred to Medical Assessor James Bodel. In his certificate dated 14 April 2021 (actually issued 14 April 2022) he certified that the right ankle surgery proposed by Dr Chung will improve the recovery of the injured person.
Medical Assessor Bodel disagreed with the insurers submission that the injuries to the right ankle are pre-existing and that they predate the accident and that any treatment responds to the pre-existing condition and not to the motor vehicle accident. Medical Assessor Bodel considered that the proposed treatment is reasonable and necessary.
On examination the claimant told Medical Assessor Bodel that she had no prior problems with her right foot or ankle. The claimant reported that her right ankle had not improved some two years after the motor accident.
On examination Medical Assessor Bodel found the claimant to have a restricted range of right ankle movement with a slight muscle wasting in the right calf.
Medical Assessor Bodel disagreed with the certificate of Dr Alan Home dated 7 June 2021. Medical Assessor Bodel disagreed with Dr Holmes conclusion that the right ankle injury is a minor injury for the purposes of the MAI Act.
Medical Assessor Bodel refers to an ultrasound of the right ankle dated 28 February 2020, but he states that he has not been provided with those films.
Medical Assessor Bodel acknowledges that there is some medical evidence of pre-existing right ankle pathology, but it appears that additional pathology has occurred in the motor vehicle accident. He states that in his opinion the additional injury to the right ankle has occurred as a result of the motor vehicle accident. He refers to the MRI scan dated
14 September 2020 showing a full thickness chondral fissuring and damage to the tibialis posterior and talar dome lesion.

EVIDENCE BEFORE THE REVIEW PANEL

Both parties to the review application both provided extensive and detailed medical records and submissions to the Panel.
As this Panel’s decision is limited to considering only the issue of jurisdiction these reasons will not refer in any detail to any of the parties evidence or submissions unless relevant to or having some bearing on the issue of the Panel’s jurisdiction in this case.
The Panel has carefully considered and reviewed all of the medical evidence from the parties but will not comment upon it unless relevant to the issue of its consideration of jurisdiction.

SUBMISSIONS

The insurer’s solicitors provided detailed written submissions dated 8 June 2022 in support of a review of certificate and reasons of Medical Assessor Bodel.[10]
[10] Insurer’s bundle AD 3 pages 2-5.
The insurer’s solicitors also provided detailed written submissions dated 1 August 2022 (referred to above) about whether the Commission had jurisdiction to conduct a review of the medical assessment given the decision in Obeid. Those submissions also argued that the insurers review application should be accepted even though it was late.
The claimant provided submissions dated 7 November 2022 in reply to the insurer’s submissions.[11] The claimant disputes that the insurer is able to lodge a review of the report of Assessor Bodel dated 14 April 2021 as the review application was out of time.

THE MEDICAL EXAMINATION
[11] AD 3.

On 18 April 2023 Ms Kim attended as arranged for her assessment at the Commission Rooms. She was accompanied by her husband, Tom. Interpreter Sandy (NAATI number CPN 5IS77W) was present for the duration of the assessment.
Assessor Gray was present at the Commission rooms in person and Assessor Gibson by video conference.

Although the medical members of the panel conducted the medical re-examination of the claimant the results of this medical re-examination will not be included in these reasons because they are limited to only considering the issue of the Panel’s jurisdiction in this case.

PANELS DETERMINATION

Before setting out its reasoning on the jurisdiction issue the Panel will briefly refer to some of the relevant correspondence between it and the parties on the issue jurisdiction.
On 7 July 2023 the Panel wrote to both parties stating that the Panel may not have jurisdiction to review the decision of Medical Assessor Bodel because of the decision of Obeid and requested submissions from the parties.
On 31 July 2023 the Panel wrote again to both parties following terms:
"The Panel has given both parties a few weeks to submit written submissions about the issue of the Panels jurisdiction. On 19 July 2023 the parties messaged the Commission and asked for an extension of time to submit the written submissions. The Panel agreed to this request and extended time for both parties to make written submissions to 5 PM Friday, 28 July 2023. Today the Commission advised that the parties written submissions have not been received.
The Panel notes that the written submissions requested by the Panel had not been received as at 1 PM 31 July 2023
The Panel will now proceed to determine the matter in the absence of written submissions which had not been provided as requested."
By written submissions from the claimant’s solicitors dated 2 August 2023 the claimant solicitors wrote in part as follows:
“The claimant agrees the Review Panel may not have jurisdiction to review the decision of Assessor Bodel due to the decision of Obeid and when the amendments to the MAI legislation and rules were made.”
In written submissions dated 4 August 23 the insurer’s solicitors wrote in part as follows:

“2. The Insurer agrees with the submissions made by the Claimant and the consideration given by the Member on 7 July 2023 stating that the Panel may not have jurisdiction to review the decision of Medical Assessor Bodel because of the decision of Obeid v AAI limited t/as AAMI (Obeid).
3. However, the Insurer submits that an object of the Motor Accident Injuries Act is to facilitate the just, quick and cheap resolution of the disputes, and on that basis, the Insurer respectfully requests the Panel to not only make a determination with respect to the jurisdiction issue but to also provide the parties with some indication as to the Review Panel’s views on Assessor Bodel’s findings. This approach may facilitate just and quick resolution of the dispute between the parties.”

The Panel wrote to both parties on 8 August 2023 in the following terms:
”Dear parties,
The Panel refers to its earlier message dated 7 July 2023 concerning whether or not the Medical Review Panel in this matter has jurisdiction to determine a dispute about proposed treatment and care.
In its message dated 7 July 2023, the Panel expressed its preliminary view that it may not have jurisdiction to review the decision of Medical Assessor Bodel because of the decision in Obeid v AAI Ltd t/as AAMI [2022] NSWPICMP 76 (5 April 2022),(Obeid) .
The Panel notes that it has recently received submissions from both parties in this matter dated 2 August and 4 August 2023. In those submissions both parties expressed agreement with the Panel’s preliminary view that the Panel may not have jurisdiction to review the decision of Medical Assessor Bodel because of the decision of Obeid.
In its written submissions dated 4 August 2023 the Insurer also requests the Panel to not only make a determination with respect to the jurisdiction issue but to also provide the parties with some indication as to the Review Panel’s views on Assessor Bodel’s findings.
The Panel declines to provide the parties with any indication as to its views on the certificate of Medical Assessor Bodel. A Medical Review Panel does not give advisory opinions.
The Panel notes that the insurer is the applicant seeking a review of Medical Assessor Bodel’s certificate.
In view of the parties submissions agreeing with the Panel’s preliminary view that it may not have jurisdiction to deal with this review, the Panel will allow the parties 14 days to consider withdrawing their review application and attempting to reach an agreement to resolve the medical dispute in this case.
If a resolution is reached within that period, the applicant in this case, the insurer, is to file and serve a notice of discontinuance on the claimant and the Commission.
If a resolution cannot be reached and the review application is not withdrawn within the 14 day period this Panel will proceed to consider all submissions and to deliver its reasons as to whether or not it has jurisdiction to deal with the medical review in this case. The Panel’s determination will be restricted to only considering the issue of jurisdiction and no other.
There is also a second issue in this matter which the Panel brings to the attention of the parties. A medical dispute for recovery that has been determined by a Medical Assessor ,which may be subject to review, is no longer a “medical dispute” due to the repeal of Sch 2, cl 2(c). The effect of this repeal may be that a Medical Review Panel no longer has power to review the issue of ‘recovery’.
The Panel is referred to the message written by the Division Head in this matter dated 24 July 2023. In that message the Division Head referred the parties to the recent decisions of Kotb v AAI Limited t/as GIO [2023] NSWPICMP 312 (Kotb) and AAI Limited t/as GIO v Stojanov (No 1 and No 2) [2023] NSWPICMP 307 which gives consideration to issue of jurisdiction in other matters.
This Panel in particular draws the parties attention to the following paragraphs in the decision Kotb (footnotes not reproduced):
“ 129.      Section 3.28(3) extends the 26 week period due to certain matters including where the treatment “will improve the recovery of the injured person” was repealed by the MAI Amendment Act.[68] The sub-section is saved for motor accidents occurring before the date of the commencement (1 April 2023).[69]
130.        A medical assessment matter is defined in Schedule 2, cl 2 of the MAI Act and previously included (at cl 2(c)) where treatment will “improve the recovery of the injured person”. Clause 2(c) provided:
“... whether for the purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) treatment or care provided to an injured person will improve the recovery of the injured person”.
131.        Clause 2(c) of Sch 2 was repealed by the MAI Amendment Act[70] and has not been saved as a transitional provision.
132.        The medical dispute for recovery that has been determined by a Medical Assessor but is subject to review is no longer a medical dispute due to the repeal of Sch 2, cl 2(c). The review provisions no longer apply to that former category of medical disputes.
133.        We received and appreciated the prompt response from the parties in response to the Panel’s Direction that, in light of the amendments, whether we had “power to review the issue of ‘recovery’”.
134.        The claimant’s submissions did not address that issue.
135.        The insurer noted that an amendment made by the MAI Amendment Act “extends to proceedings pending before the Commission”.[71] It submitted that it followed that “the Commission” no longer has power to determine a dispute on the issue of whether treatment or care will improve the recovery.
136.        It is unnecessary to address whether the Commission, through a Member, has power to address this issue. Medical disputes on “recovery” that have not been determined by a Medical Assessor may, arguably, be determined by a Member under the “catch all clause” (Sch 2, cl 3(n)).
137.        For these brief reasons we have determined that the Panel no longer has power to determine on review a dispute pertaining to recovery’
The Panel will await any advice from the parties as to whether or not they have been able to resolve their dispute and file a notice of discontinuance by 5pm 23 August 2023. If no notice is received by that time the Panel will issue its decision on jurisdiction without further notice to the parties. “
As at 4 September 2023 there has been no response or further written submissions from the parties. Accordingly, as indicated in its message to the parties, the Panel will determine the issue of jurisdiction.
In Obeid the review panel considered the differences between a medical assessment under the Motor Accidents Compensation Act 1999 (MACA) and the
Motor Accident Injuries Act 2017 (MAI Act). The significance is MACA covered treatment ‘to be provided’, the MAI Act did not.
In the original version of the MAI Act the words ‘to be provided’ have been removed from Schedule 2 cl 2(b) in the MAI Act.
Accordingly, the ordinary meaning of a medical assessment matter in cl 2(b) of the MAI Act applies to the treatment or care that has been provided. It did not extend to treatment “to be provided”.
Section 3.24 of the MAI Act provides for a claimant’s entitlement to statutory benefits for treatment and care.
The wording of s 3.24 expresses statutory benefits “incurred” in connection with providing treatment and care. In the Obeid decision Principal Member Harris described the word “incurred” as being in the past tense.
In the Obeid case, treatment had not been provided and no liability to pay for the treatment had been incurred. The Personal Injury Commission’s Medical Assessors did not have the power to determine this dispute. Accordingly, the Commission’s Medical Assessors had no power to determine a claim or dispute for medical expenses not incurred or not provided.
In this case the panel adopts and follows the reasoning of the review panel in the Obeid case.
As at the date the review application was made by the insurer on 8 June 2022 the original version of cl 2 (b) of Schedule 2 of the MAI Act was still extant. Clause 2 (b) was not amended until 10 June 2022. Accordingly, when the insurer’s review application was made the Panel had no jurisdiction to deal with the dispute about proposed or future treatment and care in this claimant’s case. At the time of the review application was made the previous version of cl 2 (b) still applied which did not recognise disputes about proposed or future treatment and care. Accordingly, the Panel finds it had no jurisdiction at that time to deal with the dispute in this case.
The Panel also notes that if the same reasoning and rules of statutory interpretation are followed and applied to the original decision of Medical Assessor Bodel then it may be that he did not have jurisdiction to make a medical assessment of the proposed treatment and care for the claimant in this case. It may be that the certificate and reasons of Medical Assessor Bodel are themselves a nullity and there was nothing for this Panel to review. Perhaps a way forward for the parties is commence a fresh application for a medical assessment.

CONCLUSION

For the above reasons the Panel concludes that it has no jurisdiction to deal with the dispute referred to about the proposed future treatment and care of the claimant.

[2023] NSWPICMP 463

15 September 2023