Rasul v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Rasul v Allianz Australia Insurance Limited [2025] NSWPICMR 26
CLAIMANT:	Afin Rasul
INSURER:	Allianz Australia Insurance Limited
MERIT REVIEWER:	Bianca Montgomery-Hribar
DATE OF DECISION:	16 July 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; statutory benefits claim; merit review; costs dispute; other costs and expenses; costs arising from medical assessment matter; occupational therapist report; report alleged to have been obtained solely for medical assessment matter; dispute about whether report reasonable or necessary; costs of report significantly exceeded treatment and care subject of medical assessment matter; proportionality considered; Allianz Australia Insurance Limited v Rymer considered; section 8.10 considered and applied; AAI Limited v Moon considered and applied; Held –costs of report reasonable and necessary however significant portion of report addressed issues outside scope of medical assessment; claimant entitled to recover partial costs of report from insurer under section 8.10.
DETERMINATIONS MADE:	CERTIFICATE 1. For the purposes of s 8.10 of the Motor Accident Injuries Act 2017, the costs of the Activities of Daily Living Assessment Report prepared by Melissa Sale of Evidex dated 12 December 2023 are recoverable in part. The claimant is entitled to recover 40% of the costs of this report from the insurer. 2. There is no other order as to costs.

STATEMENT OF REASONS

INTRODUCTION

The current dispute regards costs arising from a Medical Assessment (Domestic Assistance) matter.
Relevantly, Medical Assessor Clive Kenna was asked to resolve a dispute between Afin Rasul (claimant) and Allianz Insurance (Australia) Limited (insurer) under Sch 2, s 2(b) of the Motor Accident Injuries Act 2017 (MAI Act). This dispute regarded whether the claimant’s request for four weekly cleans of four hours per service and four fortnightly cleans of four hours per service is reasonable and necessary in the circumstances and related to an injury caused by the accident (the Medical Assessment Dispute).
By decision dated 13 June 2023, the insurer partly approved the claimant’s request and approved eight fortnightly cleans of three hours per service, totalling 24 hours of cleaning over 16 weeks. The insurer determined that any provision of services beyond this was not reasonable and necessary.
Accordingly, in effect, the Medical Assessment Dispute regarded the provision of eight hours of cleaning, being the difference between the cleaning services sought by the claimant (totalling 32 hours) and that approved by the insurer (totalling 24 hours).
Medical Assessor Kenna noted that his physical examination indicated that Ms Rasul had made a reasonable recovery over the past almost three years, and considered there had been more than a reasonable provision of domestic assistance. He held that the request for future domestic assistance was neither caused by the accident, nor reasonable or necessary.
Ms Rasul’s legal representatives sought $27,633.53 from the insurer in respect of the Medical Assessment Dispute, comprised of $2,191.73 of professional fees and $25,441.80 of disbursements. The insurer accepted liability of $3,353.84 and refused to pay the balance of the costs sought.
Ms Rasul commenced the current proceedings seeking a determination that the insurer is liable to pay the amount of $21,232.43 in respect of her costs of the Medical Assessment Dispute. At the preliminary conference before me on 9 July 2025, the claimant’s solicitor conceded that several of the disbursement costs sought to be recovered were not relevant to the Medical Assessment Dispute. For the purposes of the issue before me, the claimant only pressed recovery of the Activities of Daily Living Assessment Report prepared by Melissa Sale of Evidex dated 12 December 2023 (the Evidex Report), being $8,214.69.
Accordingly, the current dispute is whether the costs incurred by the claimant by virtue of obtaining the Evidex Report were reasonable and necessary.
Clause 1(aa) of Schedule 2 of the MAI Act provides that “whether for the purposes of section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant are reasonable and necessary” is a merit review matter.

RELEVANT LEGISLATION

The Medical Assessment Dispute was in respect of the claimant’s statutory benefits claim.
The claimant’s entitlement to recover costs from the insurer is governed by Part 8 of the MAI Act.
Section 8.10 provides for the recovery of costs and expenses in relation to claims for statutory benefits and states:
“(1)    A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2)    The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3)    A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4)    The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that—
(a)the claimant is a person under legal incapacity, or
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
(5)    An insurer is not entitled to recover from a claimant for statutory benefits any legal costs, or other costs and expenses, of the insurer in relation to the claim.”
Part 6 of the Motor Accident Injuries Regulation 2017 (Regulations) pertains to costs. Clause 20 of the Regulations provides for “Costs not regulated by this Part” and provides:
“Costs referred to in this Part (Division 4 excepted) do not include any of the following –
…
(c) fees for reports from health practitioners (other than medical practitioners),
(d) fees for other professional reports relating to treatment or rehabilitation (for example, architects’ reports concerning house modifications),
…”.
Clause 19 defines health practitioner for the purpose of the Part and Schedule 2, providing that it “has the same meaning as in the Health Practitioner Regulation National Law.
In s 5 of the Health Practitioner Regulation National Law (NSW) 2009, health practitioner is defined to mean an individual who practises a health profession. Health profession is defined to mean a list of professions, including (h) occupational therapy.
I also draw attention of the parties to the guiding principle contained in s 42 of the Personal Injury Commission Act 2020 (the PIC Act). That principle is that the Personal Injury Commission (Commission) and the parties must co-operate and facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
Both a party to proceedings in the Commission and an Australian legal practitioner representing a party in proceedings in the Commission is under a duty to co-operate with the Commission to give effect to the guiding principle.
In the context of this case, I especially underscore sub-s 42(4). The Commission and the parties should seek to resolve issues together in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject matter of the proceedings.
I also briefly note the objects of the MAI Act include, at s 1.3(2)(g), “to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes”.
In the interpretation of a provision of the MAI Act or the Regulations, a construction that would promote the objects of the MAI Act or the provision is to be preferred to a construction that would not promote those objects (s 1.3(4)). In the exercise of a discretion conferred by a provision of the MAI Act or the Regulations, the person exercising the discretion must do so in the way that would best promote the objects of the MAI Act or of the provision concerned (s 1.3(5)).

ON THE PAPERS

Section 52(3) of the PIC Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
At the preliminary conference on 9 July 2025, the parties confirmed they had nothing further to say in respect of the dispute.
Having considered s 52 of the PIC Act, Procedural Direction PIC2 and the documents before me, I am satisfied that I have sufficient information available to me to allow me to determine the issues in dispute ‘on the papers’ and without holding a formal hearing, and that this is the appropriate course in the circumstances.

SUBMISSIONS

Claimant’s submissions

The claimant relies on written submissions dated 10 June 2025. The claimant’s legal representative also made oral submissions at the preliminary conference on 9 July 2025.
The claimant’s submissions refer to her physical and psychological injuries said to be caused by the accident. She submits that the claimant’s legal representative is required to investigate the claimant’s injuries and the necessary and reasonable prospects of the Medical Assessment Dispute.
The claimant recognises that Medical Assessor Kenna held that the request for domestic assistance was not related to the injury caused by the accident and not reasonable and necessary in the circumstances. However, the claimant submits that the fact she was unsuccessful in the Medical Assessment Dispute is not relevant to recovery of her costs.
The claimant’s written submissions refer to the correspondence with the insurer regarding the costs and disbursements sought in respect of the Medical Assessment Dispute.
The claimant refers to AAI Limited t/as GIO v Moon [2020] NSWSC 714 (Moon) and recognises that, for the costs sought to be recoverable, they must be reasonable and necessary. The claimant also referred to Barnes v AAI Limited t/as GIO [2023] NSWPICMR 9, which held that the claimant’s solicitor needed to account exactly what work they did and why it was reasonable and necessary to be done to advance the claimant’s medical assessment and review matter.
At the preliminary hearing, the claimant’s solicitor made oral submissions that the Evidex Report was reasonable and necessary because the claimant’s instructions were that the amount of cleaning approved by the insurer was not sufficient. The claimant submits that it is paramount that solicitors can investigate a matter and provide legal advice based on their investigations. The claimant submits that the Evidex Report provides opinion on the claimant’s degree of incapacity to undertake domestic activities.
The claimant submits that the Evidex Report was obtained to dispute the domestic assistance decision of the insurer. This report was relied upon to establish the reasonable and necessary nature of the treatment in dispute, as required by the MAI Act.
Reference was also made to the insurer’s reliance on the Greenlight HC Activities of Daily Living Assessment Report dated 1 November 2022 (Greenlight Report). It was submitted that it was reasonable and necessary in the circumstances for the claimant to obtain their own report that accounts for her injuries and abilities to undertake domestic duties, in response to the insurer’s Greenlight Report.
The claimant submits that the Evidex Report was relied upon by the claimant in her application and was referred to by Medical Assessor Kenna in his certificate.
The claimant refers to s 1.3(2)(b) of the MAI Act and submits that the purpose of the MAI Act is to provide early and ongoing financial assistance for persons injured in motor accidents.
Given the claimant’s concession that only the costs of the Evidex Report were pressed, the balance of the claimant’s written submissions have not been summarised.

Insurer’s submissions

The insurer relies upon written submissions dated 1 July 2025. The insurer’s legal representative also made oral submissions at the preliminary conference on 9 July 2025.
The insurer notes that the Medical Assessor Kenna determined that the claimed domestic assistance was not related to the accident and not reasonable and necessary. It further submits that the Medical Assessor found that the dispute had no merit.
The insurer submits that the alleged injuries said by the claimant to have been caused by the accident are misleading. Relevantly, the insurer submits that the accident caused a soft tissue injury to the claimant’s lumbar spine (0% WPI), a soft tissue right hip injury (2% WPI) and post-traumatic stress disorder (8% WPI).

The insurer submits that the disbursements sought to be recovered by the claimant are not reasonable and necessary.
Specifically, in respect of the Evidex Report, the insurer submits that the Medical Assessor did not rely on this report in his determination and that it was of no relevance to the assessment. The insurer notes that the claim for domestic assistance failed.
The insurer submits that the disbursement costs exceeded the value of the claim, which the insurer describes as a “simple medical dispute about home cleaning”.
The insurer also made oral submissions to this effect, being that the costs of the Evidex Report were not reasonable and necessary given they significantly exceeded the value of the Medical Assessment Dispute.
It is noted that the insurer has agreed to pay regulated legal costs and costs itemised as “clinical notes”.
As with the claimant’s submissions, the balance of the written submissions have not been summarised given the concession by the claimant that only the costs of the Evidex Report are pressed.

EVIDENCE

In addition to the submissions of the parties, I have had regard to the bundle of documents provided by each of the parties in relation to this application. While I have considered all documents in the bundles, not all are summarised or referenced.

Certificate of Determination – Internal Review

The Certificate of Determination – Internal Review of the insurer dated 5 September 2023 maintained the decision to partially decline the request for weekly domestic cleaning services.
Relevantly, the internal reviewer concluded that the provision of weekly cleaning services is not cost-effective for the purposes of the MAI Act, and that the request for was not considered reasonable and necessary.
The determination referred to the short-term domestic assistance that had been previously approved, being the four weekly and four fortnightly cleaning services as recommended by Greenlight HC, the claimant’s rehabilitation provider. The report also noted that the insurer continued to support fortnightly cleaning services and that a further eight fortnightly cleaning services had been approved by the insurer on 23 June 2023.
The determination also referred to the insurer’s approval of the purchase of a mop and bucket Vieda with refills, Villeda pro mist with refills, and a robot vacuum cleaner to assist with the claimant’s day to day activities.

Greenlight Report

I have considered the Greenlight HC Activities of Daily Living Assessment Report dated 1 November 2022. I understand this was prepared on instruction by the insurer to address the claimant’s rehabilitation needs. This is supported by the statement in the “Objective of Assessment”, which notes:
“Ms Rasul was referred to Greenlight for an initial assessment of aids/adaptations and/or services that would assist her safety, independence and optional functional capacity in relation to her performance of activities of daily living following injury on 30 December 2021”.
Under “Home Management” it is recorded, in respect of her “Reported/observed abilities during assessment” regarding Cleaning:
“Reported to be continuing to complete most tasks but at a reduced frequency and trying to pace tasks, or completing less thoroughly. She finds the repetitive bending, twisting and squatting difficult to manage. Ms Rasul reported that completing the housework now takes a significant proportion of her available time and energy, and leaves little room for other tasks, including assisting her mother.
Ms Rasul reported attempting to request assistance from her husband with limited success; he did organise a cleaner as a one-off, however found the service too expensive to continue. Ms Rasul reported she has been relying on her 12-year-old daughter for assistance but feels this is not appropriate on an ongoing basis and became teary as she discussed their situation.
Ms Rasul owns a stick vacuum cleaner, however this is insufficient for the large size of their home.
Recommendations:
·Cleaning services temporarily to free Ms Rasul for attending, treatment and work, and assist with heavier cleaning tasks
·Equipment including robot vacuum cleaner, spin mop for thorough cleaning and spray mop for spot cleaning.”
In terms of “Issues / Barriers Identified”, it is noted:
“Ms Rasul has been struggling to complete household tasks since the date of injury due to physical and psychological symptoms sustained in the MVA as detailed in the report. This is impacting on her capacity to maintain her pre-MVA life roles including capacity for work.
Ms Rasul presents with limited capacity for managing work hours and tasks, limited improvements with physical and psychological function since the date of injury and limited understanding of injury management and her rights and obligations within the CTP scheme.”
Under “Recommendations” it is recorded:
“1. a) The provision of short-term cleaning services, including vacuuming, mopping, bathroom cleaning and bed linen changes, to reduce the physical and mental load on Ms Rasul and facilitate recovery and return to work. Frequency to be weekly x 4 services, followed by fortnightly x 4 services, at 4 hours per service due to bed linen changes.
Please note, cleaning services have been approved with Blue Bear Cleaning at the time of reporting, commenced on 18 October 2022. An ADL review after 4 weeks (8 November 2022) is recommended to determine the need for additional weekly services.
b) The provision of lightweight cleaning equipment to minimise physical demands of cleaning tasks and support a return to independence with cleaning:
Lightweight spray mop with removeable and machine-washable pads to facilitate spot cleans, particularly whilst toilet training youngest child. Ms Rasul has already purchased a spray mop as recommended and reimbursement is supported by Greenlight.
Lightweight spin mop for general mopping Ms Rasul has already purchased a spin mop as recommended and reimbursement is supported by Greenlight.
Robot vacuum cleaner for house-wide vacuuming to minimise repetitive trunk/hip flexion and prolonged standing and to support energy conservation. Although Ms Rasul has a stick vacuum cleaner which is helpful for spot cleaning, it continues to encourage repetitive and prolonged activity to vacuum the whole house, even with pacing, thereby limiting her available energy and time for other activities including work.”

Evidex Report

I have read and considered the Activities of Daily Living report prepared by Melissa Sale, a Registered Occupational Therapist, of Evidex.[1] The Evidex Report was prepared following a 2.5-hour interview at Ms Rasul’s home, including an examination of her physical function, and a review of the documents provided by the claimant’s solicitors.
[1] It is noted that the Preliminary Quantum Assessment aspects of the Evidex Report prepared by David Woolf reference a different matter and claimant. It is assumed these references are typographical errors and that the report was prepared solely in respect of the claimant.

Relevantly, it states that since the accident, Ms Rasul has struggled to perform many of her usual domestic tasks, receiving gratuitous support from her daughter and husband.[2] It also states that, in addition to gratuitous support, she has received commercially funded domestic support from her compulsory third party (CTP) insurer for aspects of the cleaning, laundry and bed linen changes.[3]
[2] Evidex Report at 5.3.
[3] Evidex Report at 5.3.
Under “Domestic activities” it records that Ms Rasul confirmed that she is independent with cooking and meal preparation tasks, noting modifications she has made to her food preparation and meals. It notes that she has trouble washing dishes up in the sink due to the degree of standing and bending forward required. Instead, she uses a dishwasher which she loads / unloads with the assistance of a small stood. She has assistance from family cleaning items that cannot go in the dishwasher.[4]
[4] Evidex Report at 5.9.
It notes she is independent with laundering tasks through pacing and task modification.
It is noted that Ms Rasul has difficulty with bed making and changing due to the degree of bending / stooping required and that she is dependent on support from commercially funded cleaners for assistance with bed making / changes. The report states that this task was likely to exacerbate her pain given the degree of physical handing and forward reaching, stooping and bending required.
In respect of cleaning, it notes:
“Ms Rasul is independent with light to moderate cleaning duties. She can wipe over kitchen benchtops, the dining table and perform a general tidy/clean by pacing herself.
She is also able to complete a spot clean of the floors using a lightweight stick vacuum. For day-to-day cleaning, Ms Rasul relies on her robotic vacuum that was provided to her by her CTP insurer.
For large scale cleaning duties including that of the bathroom, toilet, and floors (mopping), Ms Rasul is dependent on commercially funded services.
Based on my observations of function, Ms Rasul does not have the capacity for cleaning duties that require sustained or repetitive bending, stooping and low-level cleaning. This includes scrubbing of bathroom floor areas and cleaning low level areas. She would also trouble mopping the floors, a task that requires a degree of sustained forward flexion, a position that currently exacerbates her pain (as noted with her limitations with dish washing tasks).”
Overall, it opines that Ms Rasul requires 2.5 hours of heavy cleaning (low level scrubbing, bathroom cleaning, floors etc) per fortnight, and bed linen changes at 30 minutes per fortnight, totalling 1.5 hours of domestic assistance per week.

Statements of the claimant

The bundle of documents contains three statements from the claimant dated 22 July 2022, 14 March 2024 and 3 December 2024. The first of these statements was considered by Medical Assessor Kenna and referenced in paragraph 18 of his reasons.
The statements of the claimant are detailed. The paint a picture of the devastating impacts she says the accident has had on her life, and how it has impacted her work and future study plans. It also describes the impact it has had on her relationship with her husband, children and family members. There is a reference to the claimant’s mother, sister and daughter assisting with cooking and preparing food, and cleaning the kitchen.
These statements are compelling and convey the claimant as a stoic and hard-working individual. However, there is no explanation for why the claimant says that the cleaning approved by the insurer was insufficient. There is also minimal reference to the cleaning activities said to be required by the claimant due to her accident-related injuries.

REASONS

The Medical Assessment Dispute regarded approval of approximately eight hours of cleaning, being the difference between that approved by the insurer and that submitted to be reasonable and necessary by the claimant.
In no document before me is it explained by the why the amount of cleaning approved by the insurer is insufficient. However, that is not the issue before me.
What must be determined is whether, in the context of the Medical Assessment Dispute, the costs of the Evidex Report are reasonable and necessary, and incurred in connect with the claim.

Were the costs incurred by the claimant in connect with the claim?

As noted in Moon, “incur” is “to become liable for or subject to”, and regards an actual liability to pay. It is not necessary that the claimant has actually paid the costs, an actual liability to pay is sufficient.[5]
[5] Moon at [109]-[112].
I am satisfied that that the costs of the Evidex Report are liable to be paid by the claimant, based on the invoice dated 12 December 2023 in the amount of $8,214.69 which is included in the claimant’s bundle. I note that the Preliminary Quantum Assessment section of the report refers to a different claimant at several points. However, I have assumed these references are typographical errors and that this section of the Evidex Report was also prepared in relation to the claimant.
The insurer has not submitted that these costs have not been incurred.
I find that the costs of the Evidex Report were incurred by the claimant in connection with the claim.

Are the costs reasonable and necessary?

Whether costs are ‘reasonable and necessary’ is determined on a case-by-case basis.[6]
[6] Moon at [105].
The fact that the claimant was unsuccessful in the Medical Assessment Dispute is not relevant.[7]
[7] Moon at [82].
As recognised in Allianz Australia Insurance Ltd v Rymer [2025] NSWPICMRP 7 at [75], the issue of proportionality is important. This was not a medical assessment dispute where the claimant’s entitlement to damages and/or ongoing statutory benefits was in issue. It was a dispute limited to the provision of eight hours of domestic assistance. Accordingly, the reasonableness and necessity of the Evidex Report must be considered in that context.
I note that the claimant initially sought recovery of the costs of a suite of reports totalling over $20,000. Appropriately, the claimant’s legal representative conceded at the preliminary conference that the claimant was only pressing recovery of the costs of the Evidex Report.
I have considered the documents included in the insurer’s bundle and accept that they evidence medical opinions to support the insurer’s submission that the accident caused a soft tissue injury to the claimant’s lumbar spine (0% WPI), a soft tissue right hip injury (2% WPI) and post-traumatic stress disorder (8% WPI). However, I find this is of little relevance to the issue before me.
I accept that the Medical Assessor does not reference the Evidex Report, save for a possible reference in paragraph [18].[8] However, I do not accept the insurer’s submission that it necessarily follows that the Evidex report was of no relevance to the assessment. I find that the Evidex Report may have assisted the Medical Assessor to determine whether the need for cleaning as reported by the claimant was accurate and therefore may have been relevant to the Medical Assessment Dispute, even if not specifically referenced by the Medical Assessor.
[8] It is unclear whether this is a reference to the Evidex Report or the Greenlight Report.
In respect of the claimant’s submission regarding the objects of the MAI Act, I note that the competing objects and purposes of the MAI Act are well recognised.[9] While I accept providing early and ongoing financial assistance for persons injured in motor accidents is one object of the MAI Act, it must be considered in context of the other objects, which include, inter alia, to keep premiums affordable (s 1.3(2)(d)), and to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes (s 1.3(2)(g)).
[9] See e.g., the comments of Kirk JA in Allianz Australia Insurance Ltd v Estate of Late Summer Abawi [2025] NSWCA 85 at [59].
Subsection 1.3(3)(a) is also important to acknowledge, which states:
“It must be acknowledged in the application and administration of this Act—
(a) that participants in the third-party insurance scheme have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable and of promoting the recovery and return to work or other activities of those injured in motor accidents.”
This acknowledges that the roles of the parties are integrated. Noting the low financial value of the Medical Assessment Dispute, it was open to the insurer to request a further statement from the claimant if it was not satisfied that the cleaning approved was inadequate. Equally, it was open to the claimant to provide a statement to this effect and to make inquiries of the insurer as to whether this was adequate before going to the expense of expert evidence.
While I consider that a statement from the claimant as to why the approved hours of cleaning were insufficient may have been a more appropriate way of establishing whether the services were reasonable and necessary, this is not how the parties approached resolution of this dispute.
The claimant’s solicitor submitted that he did not know how else he could have proceeded with the matter other than to obtain an occupational therapist report.
I accept that the claimant should be able to investigate her claim and not be prevented from obtaining reports in response to those obtained by an insurer. I also accept the insurer’s submission that the Greenlight Report was commissioned as a rehabilitation report and provided to the claimant’s general practitioner, rather than being commission for the purposes of the Medical Assessment Dispute. However, given the insurer’s reliance on the report for the purposes of the Medical Assessment Dispute, I accept the claimant’s submission that she considered it reasonable and necessary in the circumstances to obtain an occupational therapist report in response. Indeed, I note that the insurer upheld its decision on internal review to deny the additional cleaning services by, inter alia, reliance on the Greenlight Report.
I accept that the claimant may have considered that obtaining her own activities of daily living assessment was appropriate to determine the extent of domestic assistance she should be provided.
In terms of costs, the insurer submitted that the costs of the report exceeded the costs of the dispute in question, which is a consideration weighing against a finding that the report is reasonable and necessary. I agree with this submission.
The claimant’s solicitor conceded that the costs of the Evidex Report were disproportionately high and that he did not anticipate an invoice of over $8,000.
In the circumstances, I would have expected that a quote for this type of report would have first been obtained. The claimant’s solicitor, an experienced personal injury lawyer who confirmed that he had used Evidex to prepare similar reports in the past, should have had an idea of the usual cost of these reports and considered whether there was an alternative, more cost appropriate method of obtaining the evidence required.
While I find that the costs of the Evidex Report were disproportionately high when considered in the context of the Medical Assessment Dispute, this is only one factor to be considered regarding whether the report is reasonable and necessary.
As noted above, I accept the claimant’s solicitor’s submission that he considered that obtaining the Evidex Report was reasonable and necessary to understand why the claimant said the approved hours of cleaning was insufficient. He submitted that he did not see any other way to progress the matter.
Given the recommendations of Evidex as to the domestic assistance required by the claimant, I find that the Evidex Report may have assisted in resolution of the matter as between the insurer and the claimant.
The Evidex Report was prepared by Melissa Sale, a Registered Occupational Therapist. I find she is a health practitioner for the purposes of the Health Practitioner Regulation National Law (NSW) 2009 and therefore the fees for the Evidex Report fall within cl 20 of the Regulations and are not regulated per s 8.10(2) of the MAI Act.
In determining what costs should be allowed, the claimant submits that the Evidex Report was commissioned solely for the Medical Assessment Dispute. However, it was conceded by the claimant’s solicitor at the preliminary conference that the Evidex Report addresses issues that go beyond that dispute.
The report addresses the claimant’s vocational capacity, driving ability, occupational therapy service needs, pain management and other therapies. The claimant’s likely future occupational therapy needs was also a direct question raised by the claimant’s solicitor, being an issue not related to the Medical Assessment Dispute.
I find that the inclusion of these irrelevant aspects were not reasonable and necessary and would have increased the costs of the Evidex Report. Accordingly, I do not consider it is appropriate for the claimant to recover the full costs of the Evidex Report.
In determining the amount that is appropriate, I have considered that the Evidex Report examines the following aspects, in addition to the claimant’s domestic activities, capabilities and future needs: required occupational therapy, assumed life expectancy, past gratuitous care, diagnoses and symptoms, pre-injury status, pre-existing medical history, current home environment, current social situation, physical function, psychological impact of the injury, experience of pain, personal care, vocational capacity, and driving. It also sets out her equipment and home modification needs, occupational therapy service needs, vocational service needs, “other therapies” such as exercise physiology and psychology, and pain management.
While I accept that some aspects of these considerations may have had a bearing on the conclusion of Ms Sale as to the appropriate hours of domestic assistance required by the claimant, the Evidex Report goes significantly beyond the bounds of the Medical Assessment Dispute.
On balance, based on the above, I find that the Evidex Report, in part, was reasonable and necessary for the purposes of s 8.10 of the MAI Act. I find it is appropriate to allow 40% of the costs of the Evidex Report.
Appropriately, as this is a merit review application in respect of costs, neither party sought costs in relation to this application, and I make no orders as to the costs.

OutcomeDocumentSignee

OutcomeDocumentSignature

[2025] NSWPICMR 26

16 July 2025