Suarez v AAI Limited ACN 005 297 807 Trading as AAMI (Motor Accident Injuries)
[2021] ACAT 82
•3 September 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SUAREZ v AAI LIMITED ACN 005 297 807 TRADING AS AAMI (Motor Accident Injuries) [2021] ACAT 82
MAI 8/2021
Catchwords: MOTOR ACCIDENT INJURIES – treatment and care expenses – whiplash associated disorder – whether reasonable and necessary – whether treatment is of benefit to the claimant – whether treatment is cost-effective – whether the treatment was necessary – internal review set aside – insurer to pay for treatment
Legislation cited: Motor Accident Injuries Act 2019 ss 66, 112, 113, 120, 123, 124, 191, 193, 197
Legislation Act 2001 ss 138, 139, 140, 141, 142
National Disability Insurance Scheme Act 2013 (Cth) s 3
Road Transport (Third‐Party Insurance) Act 2008 (repealed)
Workers Compensation Act 1951 s 70
Subordinate
Legislation cited: Motor Accident Injuries Bill 2019
Motor Accident Injuries (Treatment and Care) Guidelines 2019
Cases cited:AT18 v Australian Information Commissioner [2018] FCAFC 192
Faris v Insurance Australia Limited trading as NRMA Insurance [2021] ACAT 6
IW v City of Perth [1997] HCA 30
Kuzmanovski v NSW Lotteries Corporation [2010] FCA 876
Mohammad v Onsite Formwork Pty Ltd [2015] ACTSC 416
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
TAL Life Ltd v Shuetrim [2016] NSWCA 68
Will v the R (No 2) [2021] ACTCA 14
XYZ v Commonwealth [2006] HCA 25
List of
Texts/Papers cited: Victorian Transport Accident Commission, ‘Clinical Framework for the Delivery of Health Services’ (June, 2012)
Butterworths, Australian Legal Dictionary (1st ed, 1997)
Macquarie Dictionary (7th ed, 2017)
State Insurance Regulatory Authority, Guidelines for the management of acute whiplash-associated disorders – for health professionals (3rd edition, Sydney, 2014)
Tribunal: Presidential Member H Robinson
Date of Orders: 3 September 2021
Date of Reasons for Decision: 3 September 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 8/2021
BETWEEN:
MARIA SUAREZ
Applicant
AND:
AAI LIMITED ACN 005 297 807 TRADING AS AAMI
Respondent
TRIBUNAL:Presidential Member H Robinson
DATE:3 September 2021
ORDER
The Tribunal orders that:
Pursuant to section 197 of the Motor Accident InjuriesAct 2019 the respondent’s internal review decision dated 16 February 2021 to refuse to pay for twenty-two (22) group exercise sessions is set aside.
Pursuant to section 112(1)(a) of the Motor Accident Injuries Act 2019 the respondent is to pay the cost of a course of group exercise sessions recommended in Allied Health Recovery claim entitled Request No. 2 – Physiotherapy.
………………………………..
Presidential Member H Robinson
REASONS FOR DECISION
By way of this application, the applicant seeks external review, under section 193 of the Motor Accident Injuries Act 2019 (the MAI Act), of a decision made by the respondent, AAI Limited (the respondent) on 16 February 2021 confirming the insurer’s original decision dated 6 February 2021 to refuse to pay for twenty-two (22) group exercise sessions on the basis that they were not ‘reasonable and necessary’ (the internal review decision).
Background
On 4 March 2020 the applicant was involved in a rear end motor vehicle accident. She was not at fault. No ambulance attended and she drove her vehicle home.
On 12 March 2020 the applicant submitted to the respondent a Personal Injuries Defined Benefits application (the application) seeking payment for treatment for ‘neck pain and cracking’, shoulder pain and headache. The respondent accepted liability for payment for defined benefits injuries sustained in the accident. A number of treatment plans, including physiotherapy and exercise, were developed over the subsequent months. These included, on 3 November 2020, eight (8) group exercise sessions with ‘Back in Strength’.
On 12 January 2021, Mr Klebansky, a physiotherapist at ‘Back in Strength’ sent to the AAMI Claims team the Allied Health Recovery, a claim entitled Request No. 2 – Physiotherapy (the claim), requesting approval for the group exercise sessions, being 24 further group exercise sessions, at the frequency of two (2) sessions per week for twelve (12) weeks.
On 1 February 2021 the AAMI Claims Team sent the applicant a letter stating that the claim was partially approved, with two (2) sessions having been approved, but not the full requested 24 (the original decision). The statement of reasons for the original decision stated that:
The treatments funded to date has been sufficient and adequate to address Maria’s whiplash associated disorder, and on that basis, no further treatment is considered reasonable and necessary, aside from the self-directed exercise program as she has had sufficient exercise based therapy to transition to a self-directed exercise program.
On 3 February 2021 the applicant sought internal review of the original decision under section 191 of the MAI Act.
On 16 February 2021 the respondent completed the internal review of the original decision (the internal review decision). The internal review decision provides, in part:
1. The decision maker has decided to affirm the decision made by the AAMI Claims Team.
2. The request for a further twenty-two (22) Group Exercise Sessions with ‘Back in Strength’ as per Allied Health Recovery Request No. 2 – Physiotherapy is not considered reasonable and necessary and are denied.
3. AAMI will not cover the cost of twenty-two (22) further Group Exercise Sessions as per Allied Health Recovery Request No. 2 – Physiotherapy.[1]
[1] Application for review of insurer’s decision, Internal Review Notice dated 16 February 2021
The applicant now seeks review of the internal review decision. She maintains that she still has symptoms and that a more targeted recovery plan is preferred.
The medical evidence
Following the accident, the claimant attended her general practitioner, Dr Ostberg. Dr Ostberg provided a diagnosis of “musculoligamentous sprain of the neck with posterior disc protrusion [of] C4 to C7” because of whiplash. She recommended analgesics and physiotherapy.
On 12 March 2020 the applicant lodged a defined benefits application with the respondent citing neck pain, shoulder pain, headache, neck cracking, lethargy and disrupted sleep.
On that same day Dr Ostberg prepared a medical report for the application dated 12 March 2020 reflecting a diagnosis of:
Whiplash injury from rear impact MCA causing a musculoligamentous sprain of the neck with posterior disc protrusion C4 to C7 plus acute stress reaction.
In that report, Dr Ostberg’s recorded the following ‘clinical findings’:
frontal headache [and] extreme lethargy, painful restriction ROM cervical spine with clicking tender muscles of the [right] trapezius, rhomboid and spinal disrupted sleep with nightmares.
Dr Ostberg recommended an MRI of the applicant’s spine, rehabilitation with graduated return to work, physiotherapy and analgesia. She also completed a Fitness for Work Certificate declaring the applicant unfit for work from 4 March 2020 to 24 March 2020.
Sometime later, the respondent directed the applicant to attend a medical assessment with Dr Raymond Wallace, an Orthopaedic Surgeon. On 2 April 2020 Dr Wallace provided a medical report to Dr Ostberg and the respondent’s claim team. Amongst other things, he notes:
10 March 2020: MRI investigation of the cervical spine shows no evidence of bony injury. There are very mild posterior disc bulges at C4/5, C5/6, C6/7 and C7/T1. There is no evidence of nerve root impingement.
Dr Wallace diagnosed whiplash disorder grade II. He opined, relevantly, that the claimant:
…suffered a mild whiplash injury as a result of a rear end motor vehicle collision on 4 March 2020.
She would benefit from an active home-based exercise program using the SWORD computer equipment which will be made available to her early next week.
…
She will be monitored by the physiotherapist remotely in regard to a home-based exercise program.
…
She has no evidence of significant ongoing disability at her cervical spine on clinical examination at the time of the review on 2 April 2020. She has no evidence of structural abnormality at her cervical spine on recent MRI investigation. The minor disc bulges seen on this investigation are due to age-related degenerative change and are unrelated to the index motor vehicle accident.
Dr Wallace concluded that there was no justification for the claimant to be certified ‘totally’ unfit for work. He recommended telephone counselling to address her anxiety around driving, and analgesics. He concluded that the applicant was fit to return to her preinjury duties, and recommended review in six weeks.
The applicant commenced the SWORD program about mid-April 2020. She reported some difficulties with the program on 17 April 2020. She was first contacted by the physiotherapist on 22 April 2020. She subsequently reported to her claims advisor at the respondent’s office that the physiotherapist was happy with her progress and advised her to continue the same exercises with more repetitions.
The applicant’s general practitioner, Dr Liang, issued a further Fitness for Work certificate, finding the claimant unfit or work from 23 April 2020 to 31 May 2020 and also recommending face to face physiotherapy sessions.
On 1 May 2020 Dr Wallace prepared a further report following a remote ‘telehealth consultation’, which I understand is a virtual patient consultation. In the report Dr Wallace states:
Over the last month, she has noted an overall reduction in the level of pain at her cervical spine.
She now complains of intermittent aching pain at the C6/7 spinous process radiating to the right scapular spine.
Dr Wallace then confirmed his earlier diagnoses of whiplash associated disorder grade II. He recommended the applicant “continue with the SWORD home exercise program with a modified exercise prescription”, as well as continuing with counselling. He opined:
In regards to Dr Liang’s comments recommending physiotherapy treatment, I would respectfully refer her to the SIRA Guidelines for treatment of acute whiplash which specifically recommends an active home-based exercise rehabilitation program as being the most effective treatment for whiplash associated disorders over and above physiotherapy treatment.
Dr Wallace noted he would review the applicant in four weeks, but it is not clear if this review took place.
The State Insurance Regulatory Authority, Guidelines for the Management of Acute Whiplash Associated Disorders for Health Professionals (SIRA Guidelines) referred to by Dr Wallace in his 1 May 2020 report are found on the NSW Government website. The SIRA Guidelines appear to be the product of a working group of medical practitioners, physiotherapists and industry representatives. The document states, in part, that:
These Guidelines are intended to assist health professionals delivering primary care to adults (18 years and beyond) with acute or subacute simple neck pain after an MVC in the context of CTP insurance.[2]
[2] SIRA Guidelines page 4
On review of the document, I was unable to identify where it specifically recommends home-based exercise treatment, but the guidelines provide relevantly that:
12-week reassessment
Reassess again at this point. There should be complete resolution of symptoms in at least 40 per cent of cases. In these cases treatment should be ceased. If the patient is still improving, continue treatment with a focus on interventions which require active participation and independence (for example, provide patients with home exercise programs that involve active exercises). In these resolving cases, the patient should be reviewed intermittently over the next six to 12 months until resolution, to ensure home programs are maintaining improvement.[3]
[3] SIRA Guidelines page 11
Treatments recommended in the SIRA Guidelines include range of motion exercises, low load isometric, postural endurance and strengthening exercises.[4] The numerous example exercises specified in the SIRA Guidelines all appear to be capable of being done at home.
[4] SIRA Guidelines page 36
On 5 May 2020 the applicant commenced physiotherapy.
On 13 May 2020 the respondent’s claims team received a treatment request from Accelerate Physiotherapy. The physiotherapist diagnosed whiplash associated disorder – cervical spine and recommended eight (8) sessions with an expected outcome of a full pain-free range of motion and return to previous activities. The claim was accepted.
On 3 July 2020 the claim team received a treatment request for six sessions from the Accelerate Physiotherapy, who this time diagnoses whiplash associated disorder grade II. A further six (6) sessions were requested, with the same expected outcomes with the addition of no headaches. The claim was accepted.
Also in July 2020, the applicant was referred to Guardian Exercise Rehabilitation (Guardian) for the development of a rehabilitation program.
At an assessment with Guardian on 22 July 2020 the applicant reported that she had been back at work for four (4) weeks and her symptoms were increasing. She noted headaches, aching pain and tension in her right ‘traps’ (presumably trapezoid), aggravated by sedentary periods. She had gained weight and ceased walking and hiking due to her injuries.
On 31 July 2020 the applicant met with Guardian at a gym for a “Programme Development Session”. She reported stress from returning to work and regular headaches. She signed up for a three (3) month gym membership.
Guardian reviewed her at the gym on 5 August 2020 and reported that she “engaged very well and seemed motivated to continue to progress her rehabilitation”.[5]
[5] Guardian Exercise Rehabilitation report by Laura Tam dated 5 August 2021
On 7 August 2020 the respondent’s claims team received another request from ‘Accelerate Physiotherapy’ for another four (4) fortnightly sessions, noting continuation of pain in the cervical spine.
The applicant commenced a new role with her employer in August 2020 and reported improvements in her physical and mental health during a review on 3 September 2020.
On 16 September 2020 the applicant’s GP, Dr Liang, recommended a new physiotherapist from ‘Back in Strength’ at Deakin. The GP considered that ‘Back in Strength’ had experience in cases similar to the applicant’s. The applicant discussed this recommendation with Guardian, and Guardian raised concerns about changing physiotherapists with only two (2) sessions left. The applicant expressed frustration with the respondent’s claims process and reported she had “lingering symptoms” and wanted to try a different approach.
On 15 October 2020 the applicant transitioned from Guardian to a new rehabilitation provider.
On 3 November 2020 the applicant’s new physiotherapist at ‘Back in Strength’ reported a diagnosis of “C2/3, C6/7 whiplash injury following MVA with tingling in C7 nerve root distribution, ongoing headaches”. Noted symptomology included pain after sitting. The physiotherapist’s treatment request[6] noted an onset of pain at 11:30am and stated that the applicant’s goals were that within eight weeks the onset of pain would be delayed until around 3:30pm, and that she would be able to drive for two (2) hours without pain in 8-12 weeks. The physiotherapist requested group exercise lessons of one (1) per week for eight (8) weeks and reassessment of the applicant’s back to create a new program. This was approved.
[6] Recorded on an NSW State Insurance Regulatory Authority form
On 12 January 2021 a different physiotherapist at ‘Back in Strength’ sent a further request for treatment. This time the goals were stated to be “improve strength in affected right shoulder and arm (due to nerve root irritation)” and “restore Cx spine ROM and ability to turn neck effectively”. He recommended supervised exercise classes two (2) times per week.
On 12 January 2021 Dr Liang again diagnosed “whiplash to cervical spine; soft tissue injury to shoulder, disc prolapse C4-C7; acute stress reaction” and proposed treatment of ongoing supervised exercise sessions with physiotherapist and private physiotherapist appointments with ‘Back in Strength’.
Mr Klebansky, physiotherapist at ‘Back in Strength’ prepared a report dated 16 April 2021 that stated that at the time of examination and stress testing, the applicant had “demonstrated muscle weakness, and presented with both dyskinesia and pain” and outcome measures were indicative of “moderate to severe limitation/disability.” He wrote:
…The requested sessions were to increase the amount of exercise and load exposure, to facilitate an improvement in shoulder strength and function, and to improve exposure to work postural stress. It was anticipated that this would assist in lengthening the time of symptom onset to further in the day, and eventually allow for [the claimant] to complete a full working day without those symptoms.
This is the request for treatment that was the subject of the internal review decision and the present application.
Background and purpose of the Scheme
The intention of the Motor Accident Injuries Bill 2019, which became the MAI Act, was to replace the at-fault compensation scheme operating under the previous Road Transport (Third‐Party Insurance) Act 2008 with a hybrid, no-fault compensation scheme that includes, amongst other things, the provision for the payment of ‘treatment and care’ to persons injured in a motor vehicle accident.[7]
[7] Explanatory Statement, Motor Accident Injuries Bill 2019 page 2
The new scheme streamlined the process for gathering medical evidence by encouraging insurers to consult with the claimant’s general practitioner first. The Explanatory Statement to the Motor Accident Injuries Bill 2019 (the MAI Bill) summarises the process as follows:
An insurer will generally rely on medical assessments carried out by a person’s own doctor or health practitioner. In order to streamline the medical assessment process and limit the number of required assessments, an insurer may contact an injured person’s doctor with questions, so that a medical report covers all information required by the insurer. However, an insurer can still request an independent medical or vocational assessment if required. Guidelines will be provided to outline how and when this can happen.[8]
[8] Explanatory Statement, Motor Accident Injuries Bill 2019 page 5
While insurers are encouraged to seek the advice of a claimant’s general practitioner, where the insurer considers there to be doubt about a diagnoses or treatment, it can seek additional medical evidence. This information should be sought by the insurer prior to making a decision about the proposed treatment.
In this case, the insurer has relied upon medical evidence from both the applicant’s general practitioners (Dr Ostberg and Dr Liang) and that of Dr Wallace. The latest report from Dr Wallace is from May 2020. Dr Liang’s evidence is the most recent, being from January 2021. In addition, there is the report from a physiotherapist, Mr Klebansky of 16 April 2021. As such, there is limited recent medical evidence before the Tribunal. While not inconsistent with the goals of the MAI Act, medical evidence was problematic in this case. There are cases, particularly at the margins, where further medical evidence should be sought at the internal review stage (see: Faris v Insurance Australia Limited trading as NRMA Insurance [2021] ACAT 6) and this is one such case for reasons set out below.
In making the internal review decision, the respondent also relied upon general medical information including the SIRA Guidelines. The status of the SIRA Guidelines is unclear, as neither party made detailed submissions. The SIRA Guidelines appear to be drafted by respected and well qualified medical experts and allied professionals, but it is unclear to me how I could, and whether I should, apply the guideline principles in considering the applicant’s particular circumstances. I was ultimately not required to make any determinations about that issue when determining this application.
Statutory framework
Section 66 of the MAI Act sets out the obligation on an insurer to pay defined benefit to which the applicant is entitled:
66 Accepting liability—payment of defined benefits
(1)If a relevant insurer accepts liability for defined benefits, the insurer must pay the applicant the defined benefits to which the applicant is entitled.
NoteIf relevant insurer receives an application for death benefits, the insurer must apply to the ACAT for an order for the payment of the death benefits to the dependants (see s 176).
(2)The MAI guidelines may make provision in relation to the payment of defined benefits.
Section 112(1)(a) of the MAI Act provides that a person injured in a motor vehicle accident is entitled to payment of treatment and care expenses (amongst other defined benefits). ‘Treatment and care expenses’ is defined in section 113 to mean:
113 Meaning of treatment and care expenses—ch 2
In this chapter:
treatment and care expenses, for a person injured in a motor accident—
(a)means expenses incurred by the injured person in providing for the injured person’s treatment and care; but
(b)does not include expenses incurred for treatment and care—
(i)that was not reasonable and necessary; or
NoteSection 120 deals with deciding whether treatment and care is reasonable and necessary.
(ii)that did not relate to a personal injury sustained in the motor accident; or
(iii)for which the injured person has not paid and is not liable to pay.
Example—subpar (iii)
nursing care or domestic services provided by a domestic partner or parent on a gratuitous basis
Pursuant to section 123 of the MAI Act the insurer must develop a recovery plan for any applicant who is unable to return to their pre‐injury duties and activities after 28 days from the insurer’s receipt of their application. The plan will include pre‐approval for treatment and care assessed as reasonable and necessary, that can then be billed by the provider directly to the insurer.[9]
[9] MAI Act section 124
A person injured in a motor vehicle accident who wishes to have treatment and care that is not in the recovery plan prepared in relation to the person must apply to the insurer. The relevant insurer must then consider and decide whether to approve that treatment as ‘reasonable and necessary’.
Section 120 sets out when treatment and care is reasonable and necessary:
120 Deciding whether treatment and care is reasonable and necessary
In deciding whether treatment and care for an injured person is reasonable and necessary, the relevant insurer for the motor accident must consider the following:
(a) whether the treatment and care is reasonable and necessary in the circumstances;
(b) whether the treatment and care—
(i)is directly related to the person’s injury; and
(ii)is appropriate for the injury; and
(iii)will benefit the person;
(c) the appropriateness of a provider of the treatment and care;
(d) whether the treatment and care is cost effective;
(e) the MAI guidelines.
The ‘MAI Guidelines’ referred to in section 120 are the Motor Accident Injuries (Treatment and Care) Guidelines 2019 (the Treatment and Care Guidelines). Part 7 of the Treatment and Care Guidelines sets out the principles to be followed by health professionals in making decisions about proposed treatment under the MAI Act. The insurer is to manage claims and make decisions in a manner that adopts and is consistent with the principles of the nationally enforced “Clinical Framework for the Delivery of Health services”.
Part 6.4 of the Treatment and Care Guidelines sets out principles about when treatment and care is considered reasonable and necessary. The principles are lengthy so a copy is attached at the end of these reasons as Attachment A.
The only real question before the Tribunal in this application is whether the proposed treatment meets the criteria of being ‘reasonable and necessary’, having regard to the principles in the Treatment and Care Guidelines and the meaning of that term in the MAI Act.
The respondent’s position
The respondent’s position is that the applicant has suffered a “soft tissue” injury, with no evidence of long-term physiological injury. In relation to this injury, the respondent has already approved treatment by:
(a)Accelerate Physiotherapy – at least fourteen (14) sessions of physiotherapy;
(b)Guardian Exercise Rehabilitation – a three (3) month gym membership and eight (8) guided exercise review program sessions;
(c)Back in Strength – ten (10) group exercise sessions and one (1) reassessment session.
The respondent submits that ongoing supervised treatment 11 months post-accident is not commensurate with the soft tissue injuries sustained and is not reasonable. As set out above, the respondent bases this position on the reports of Dr Wallace, and the general principles the SIRA Guidelines. These respondent considers that the treatment received by the applicant and the two (2) further physiotherapy treatments approved are “…more than sufficient in providing treatment and guidance for the recovery from whiplash associated disorder, and opportunity to re-establish independence with self-managed exercise program”[10] and it “remains unclear how the proposed further Group Exercise sessions at this stage of recovery…will lead to any further measurable improvement with the soft tissue injury sustained.”[11]
[10] Respondent’s reply submission dated 29 March 2021 at [40]
[11] Respondent’s further submissions dated 10 May 2021 at page 1
Additionally, the respondent says, a home-based exercise program is the best practice, and further group sessions risk creating a “dependence on that type of treatment”.[12]
What is ‘reasonable and necessary’ treatment?
[12] Transcript of proceedings 26 May 2021 page 20 at lines 6-7
The phrase ‘reasonable and necessary’ is not defined in the MAI Act, nor are the individual words. I do not think there is much question as to what ‘reasonableness’ means in the context of the MAI Act – the Guidelines and the submissions of the parties address this question. The more complicated question is: when is a treatment ‘necessary’?
As a general principle of statutory interpretation, every word in a statute is to be given some meaning. However, where the words are used as a composite phrase throughout an Act, consideration should also be given to the phrase as a composite whole as well as to each word separately.[13]
[13] See National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [149]; citing Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA 25 at [19], “[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts”.
The starting point in interpreting ACT legislation is the Legislation Act 2001 (Legislation Act). Section 139 of that Act provides that in working out the meaning of an Act, preference is to be given to “the interpretation that would best achieve the purpose of the Act”. Section 138 of the Legislation Act provides that this includes resolving an ambiguity, confirming or displacing the apparent meaning of the Act and finding the meaning of the Act in any other case. Section 140 of the Legislation Act requires that when working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.[14] Section 141 sets out that in working out the meaning of an Act, extraneous material not forming part of the Act may be considered in certain circumstances. Section 142 provides a non-exhaustive list of the material which may be considered in working out the meaning of an Act or statutory instrument, and this includes the explanatory statement for the bill that became the Act.[15]
[14] Also Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69]
[15] Item 4
The explanatory statement to the MAI Bill does not explain what is meant by ‘reasonable’ or ‘necessary’, either individually or as a composite phrase. However, the explanatory statement does give context as to the kinds of things that the drafters were anticipating would be considered:
This clause will require the relevant insurer, in deciding whether treatment and care is reasonable and necessary, to consider whether the treatment and care is:
· cost effective;
· reasonable and necessary in the circumstances; and
· directly related to a person’s injury; and appropriate for the injury; and will benefit the person.
The Explanatory Statement goes on to provide that the Treatment and Care Guidelines may stipulate what constitutes reasonable and necessary treatment and care. The Treatment and Care Guidelines set out the factors an insurer must consider when deciding whether treatment and care is reasonable and necessary. I consider these Guidelines in more depth below, but note here that they do not assist greatly with deciding what is meant by ‘necessary’.
In construing a particular word, or words, the Tribunal may also have regard to the ‘ordinary meaning’ of a word, with the assistance of a Dictionary,[16] although this must be done cautiously, as the use of a dictionary is considered no substitute for the interpretative process.[17]
[16] See Will v the R (No 2) [2021] ACTCA 14 at [121] per Loukas-Karlsson J; citing Kuzmanovski v NSW Lotteries Corporation [2010] FCA 876 at [37]–[38]
[17] TAL Life Ltd v Shuetrim [2016] NSWCA 68 at [80]; note also footnote 12 per XYZ v Commonwealth [2006] HCA 25 at [19]
The Macquarie Dictionary[18] defines ‘reasonable’ to include:
adj.
…
3. not exceeding the limit prescribed by reason; not excessive: reasonable terms...
4. moderate.
And defines ‘necessary’ to mean:
Adj.
1. that cannot be dispensed with: a necessary law
[18] Macquarie Dictionary (7th ed, 2017) ‘reasonable’ (def 3, 4), ‘necessary’ (def 1)
The Butterworths Australian Legal Dictionary does not define ‘necessary’, but defined ‘necessaries’ as – “those things that cannot be dispensed with”.[19]
[19] Butterworths Australian Legal Dictionary (1997) ‘necessaries’
The test of necessity appears to set a relatively high bar, and stands apart from the test of ‘reasonableness’. Reasonableness is more a qualitative assessment of whether the treatment provided is within generally accepted or rational limits.
It is well established that remedial, beneficial legislation should be accorded a “fair, large and liberal interpretation, as opposed to one which is literal or technical[20] but there are limits to the application of this principle when a single word is in issue. As the Full Court of the Federal Court observed AT18 v Australian Information Commissioner [2018] FCAFC 192, a case that involved interpretation of privacy legislation:
76. … the matter is more nuanced than is suggested by either that general proposition or the applicant.
77. Subsequent caselaw has properly emphasised the need for caution in applying this canon of construction. For example, in New South Wales Aboriginal Land Council v Minister Administering The Crown Lands Act [2016] HCA 50; 260 CLR 232 the High Court emphasised the importance of understanding the particular issue to which the task of statutory construction relates in any individual case. Their Honours drew a distinction between a situation where a Court is asked to construe a statute where there are choices available in the statute’s construction, in which case the choice can be guided by taking a broader approach on the basis of the beneficial purpose of the statute, as opposed to a case where the exercise of statutory construction is focused on the meaning of specific words. …
And at paragraph 33:
…In Victims Compensation Fund Corporation v Brown it was pointed out that to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.[21]
[20] See, for example, IW v City of Perth [1997] HCA 30 at [12]
[21] Per Logan, Griffiths and Farrell JJ
Applying that reasoning here, ‘necessary’ means essential, and there is no reason to give it a more liberal or expansive meaning, or to read the phrase ‘reasonable and necessary’ in a way that means ‘reasonably necessary’. However, the question remains: what should the treatment be necessary for?
Much of the treatment contemplated by the MAI Act is clearly not necessary to life, so in the context of the MAI Act the question of what is ‘necessary’ must extend beyond the necessities of life.
In another Federal Court case, National Disability Insurance Agency v WRMF [2020] FACFC 79 (WRMF), the Full Court had to consider the meaning of the term ‘reasonable and necessary’ in the context of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), an Act designed to provide no fault, whole of life benefits to persons with disabilities.
WRMF concerned an appeal from a decision of the Commonwealth Administrative Appeal Tribunal (AAT) that concerned the question of whether certain benefits paid for a service were neither reasonable nor necessary. The appellant, the National Disability Insurance Agency, invited the Federal Court to consider the meaning of the term ‘reasonable and necessary’ in some depth, suggesting that the service in issue did not meet that criteria. Ultimately, the Full Court declined to undertake the suggested analysis because the issue had not been raised at first instance. However, in reaching their decision, their Honours examined the reasoning of the AAT, and then made observations which are useful in the present context.
First, the Full Court considered the AAT’s reasons, and the connection it drew between the concept of ‘need’ and ‘necessity’:
207. In its discussion of the guiding principles clause, the Tribunal stated:
[24] Section 4(3) provides that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. The word ‘need’ in that section seems to me to bear its ordinary English meaning, and that suggests to me in turn that the word ‘necessary’ in the expression reasonable and necessary supports’ also bears its ordinary English meaning. One should ask in that respect: does the support fulfil a need of the participant? The word will extend to a health need, but is not limited to health needs.
208. The Agency contends this is an ‘incorrect construction’. It is not a construction in the way the Agency’s submission implies. It is no more than the Tribunal noting the correlation between the use by the Parliament of the word ‘need’ in the guiding principles provision, and the use by the Parliament of the word ‘necessary’, and observing (correctly in our respectful opinion) that the correlation will inform what is included in the concept of necessary. To say that a support which fulfils a need of a participant may fall within one of the two aspects of ‘reasonable and necessary support’ seems to us to be an uncontroversial proposition.
In other words, looking at a claimant’s needs provide guidance of what is a reasonable and necessary support to meet that need in the context of the NDIS Act.
Any analogy to the MAI Act can only go so far, as the guiding principles of the NDIS legislation are different from those of the MAI Act. The purpose of the NDIS is broader and aimed at ensuring persons with a disability can maximise their independent lifestyles and full inclusion in the community.[22] The concept of ‘needs’ is embedded into the objects of the NDIS Act, the objects of which expressly refer to ‘needs’ in a way that the objects of the MAI Act do not. Nonetheless, the approach suggested, to consider the meaning of ‘necessary’ by reference to the broader context of the Act in which it is used is consistent with the standard approach to legislative interpretation.
[22] National Disability Insurance Scheme 2013 (Cth) section 3
Hence, the most appropriate means to define ‘necessary’ in the context of the MAI Act is to consider whether the proposed treatment is necessary in the sense of advancing the objectives of the Act, as relevant to the applicant. In this case, that would mean I should consider whether the proposed treatment:
(a)encourages early and appropriate treatment and care of people injured in motor accidents to achieve optimum recovery and return to pre-accident levels of activity and work; and
(b)supports people injured in motor accidents to access defined benefits; and
(c)promotes and encourages the early, quick, cost-effective and just resolution of the dispute.
In other words, in considering whether the treatment is reasonable and necessary I will determine whether the proposed treatment is necessary to fulfill a relevant need of the applicant under the Act, is consistent with the Treatment and Care Guidelines and with the objects of the Act, and is ‘reasonable’ in the sense of being within generally acceptable limits.
Applying the Treatment and Care Guidelines
Is the treatment directly related to the applicant’s injuries?
The Treatment and Care Guidelines provide that:
Treatment and care will be directly related to a person’s injury if a service relates to an injury caused by the motor accident including the exacerbation of a pre-existing injury. An insurer may consider the time elapsed since the motor accident, and any subsequent injuries or comorbidities, in determining whether treatment and care is directly related to a person’s injury.
This is primarily a factual question to be determined on the evidence before the respondent as at the time of the internal review decision, and the new evidence was admitted without objection pursuant to applicant’s interim application dated 21 April 2021.
There is no dispute that the accident caused a whiplash injury to the applicant.
There is some dispute as to the extent and cause of the applicant’s continuing symptoms.
On the available evidence, the applicant’s symptoms, as reported by her to her treating medical team, started in the wake of the accident. There is nothing to suggest pre-existing symptomology.
The insurer effectively submits that the Tribunal should infer that many or most of the applicant’s ongoing symptoms are, on the balance of probabilities, now caused by something other than the accident. There is no recent medical evidence confirming that the symptoms have resolved or decisively pointing to an alternative cause for the applicant’s ongoing symptoms, but there is evidence that indicates other factors may be causative.
Radiological evidence shows disc protrusions, but Dr Wallace reported on 2 April 2020 that he considered this a pre-existing condition, related to degenerative changes and not related to the accident. There is no medical evidence connecting those protrusions to the applicant’s symptoms, nor is there any evidence suggesting an aggravation of those degenerative changes.
The respondent relied on the evidence of Dr Wallace that there are no physiological changes, and the generally recognised medical position that a soft tissue injury would have been expected to have resolved by this time. I accept this evidence as to what should generally be the case. Hence, Dr Wallace’s consultation was based on documents provided by the respondent, radiological evidence, and virtual consultations, most recently in May 2020. He has not seen her personally or recently. The respondent also relies on the SIRA Guidelines, which are of a general nature. I accept the evidence as to what should generally be the case.
The most recent medical evidence is that of Dr Liang of 12 January 2021 diagnosing a continuing whiplash and soft tissue injury, as well as disc prolapse. This is the most recent medical evidence.
Mr Klebansky, the applicant’s physiotherapist, reported in April 2021 that the applicant demonstrated muscle weakness with “dyskinesia and pain” and outcome measures were indicative of “moderate to severe limitation/disability.”
This evidence of the reported complaints by the applicant and the surrounding medical evidence suggests ongoing symptoms, even if the cause is unclear.
Circumstantially, there is some evidence that returning to work might be contributing to the applicant’s discomfort. The applicant has reported an increase in neck and shoulder pain from prolonged sitting since returning to work. This suggests a connection between the symptoms and work. It is conceivable that the pain caused by the injury may be exacerbated by work. However, other than a correlation in time, there is no clear evidence that the symptoms relate to a workplace or other cause.
In the circumstances, I am satisfied that the applicant suffered an injury as a consequence of the accident and that the applicant’s symptoms are consistent with that injury and commenced with the accident. Liability was accepted for that injury. While I accept that in the usual course such an injury might be expected to have resolved by now, the evidence suggests that the applicant still suffers pain and weakness that affects her capacity to work and her daily activities. There is reason to believe other factors may be contributing to her symptomology but the balance of evidence before me, and the absence of an convincing alternative cause or intervening event satisfies me that the symptoms are a result of the accident.
Is the treatment of benefit to the applicant?
Under the Treatment and Care Guidelines, treatment and care will benefit a person if:
· it will assist the injured person’s recovery or management of the person’s injury;
· it has specific goals, an expected duration and expected outcomes and these are understood and agreed by the injured person;
· it will not cause adverse outcomes or harm to the person;
· there are medical reports or assessments that show the treatment or care will benefit the person;
· the treatment or care has been provided in the past to the person with positive results or outcomes.
The evidence of Mr Klebansky is that the requested group exercise will increase the claimant’s strength and reduce her pain over the course of the day. This meets the applicant’s recovery goal of delaying the onset of pain while at work.
There is no suggestion that the treatment will cause any significant harm to the applicant. However, there is some suggestion, on the respondent’s part, that the claimant may have become dependent on the treatment, and that a further series of group exercise sessions may prolong this. This requires due consideration.
In addition to the SIRA Guidelines, the respondent relies on a document entitled ‘Clinical Framework for the Delivery of Health Services’[23] (Clinical Framework). This document is found on the Victorian Transport and Accident Commission website, where it is described as “a set of five principles to help health professionals achieve the best possible outcomes for patients injured in a transport accident”. Principle three is that clinical treatment should “empower the person to manage their injury”. This includes developing self-management strategies and promoting independence from treatment.[24] The document also provides that:
The key measurement of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.[25]
[23] Exhibit R22
[24] SIRA Guidelines page 9
[25] Exhibit R22 page 12
In general terms, the Clinical Framework supports the respondent’s position that treatment should empower independence and that inappropriate treatment may result in dependency. As with the SIRA Guidelines, however, I am uncertain how I can apply these general statements to the applicant’s individual circumstances, particularly given her ongoing symptomology and the evidence that group exercise sessions would be beneficial to her. The Clinical Framework is not sufficiently particular that I could conclude that the proposed treatment would cause harm to the applicant, although perhaps there is a risk that it could create a dependency of the kind envisaged in that Clinical Framework.
On the other hand, there is also no evidence that the limited group exercise sessions approved to date are providing sustained, long-term improvement. At its highest, they are part of a course of treatment that is different from that tried previously undertaken. The weight of evidence suggests that the previous treatment regime, which included home-based exercise was helping, but did not resolve the applicant’s symptoms. I am satisfied that, if the applicant needs further treatment, it is appropriate to continue this new course for a short period further, although review would be needed after that.
In terms of costs, this is a claim for a short period of treatment, consistent with a new approach from a physiotherapist.
The applicant’s solicitors have submitted that I should I take into account that the applicant has shown a commitment to rehabilitation, even if, as suggested in the Guardian notes, she has not always been the most cooperative of patients. She appears to believe that further treatment is necessary for her rehabilitation, and the appropriate and recommended treatment is group exercise sessions.
In support of the argument that I could consider the applicant’s subjective views, the applicant’s solicitor relied upon the case of Mohammad v Onsite Formwork Pty Ltd [2015] ACTSC 416 (Onsite Formwork), Associate Justice Mossop (as his Honour then was) had cause to consider the meaning of the term “medical treatment reasonably received” used in section 70 of the Workers Compensation Act 1951:
42. Neither the appellant nor the respondent referred me to any authority in this Court or elsewhere that would assist in the interpretation of the phrase in s 70 “medical treatment reasonably received”. The respondent’s submission was that what was reasonable was a purely objective test. The effect of that submission was that even though an injured worker might take a subjectively reasonable approach to medical treatment if that treatment was ultimately shown to have been not necessary then the Court would be required to conclude that the medical treatment had not been reasonably received for the purposes of s 70. That submission appears to be consistent with the approach taken by the Magistrate insofar as her reasons disclose her approach.
43. I do not accept the submission that the test of reasonableness is a purely objective one. In my view the reference to “reasonably received” should not be interpreted as either a purely subjective or purely objective criterion. It should not be purely subjective because it would then include medical treatment considered by the worker to be reasonable even if a reasonable person or persons acting reasonably in the position of the worker would not have considered it to be reasonable and it was not in fact reasonable. Similarly, it should not be interpreted as being a purely objective criterion because if that was the case then excluded from the scope of s 70 would be any treatment ultimately shown to have not been necessary even if the worker believed on reasonable grounds at the time that it was necessary.
44. In my view the section is best interpreted as involving both subjective and objective components. First, the worker must consider that the treatment is reasonable. That is a subjective component. It is likely to be easily satisfied as it would be extremely unlikely that a worker would undergo treatment which the worker did not consider to be reasonably required. Second, the treatment must be objectively reasonably required in the sense that it must be shown that a reasonable worker in the circumstances of the actual worker would have considered it to be reasonably required. That will exclude circumstances where the worker’s subjective belief as to the requirement for treatment was in fact an unreasonable one having regard to the material available.
As a general observation, the difficulty with application of the Onsite Formwork approach is that the scheme in issue and the facts of the cases are different. Section 70 of the Workers Compensation Act is dealing with reimbursement for medical treatment that was already received. In Onsite Formwork the appellant argued that he had acted on reasonable advice from qualified persons that he should undertake the surgery, and the issue for the associate judge was the test to be applied, and whether a reasonable person in the position of the appellant would have decided to undergo the surgery.[26] That issue does not arise here.
[26] Onsite Formwork at [47]
Nonetheless, drawing upon his Honour’s reasoning in Onsite Formwork, I am satisfied that I should give some regard to the applicant’s subjective opinion in my consideration of whether the treatment is necessary and reasonable. One of the objects of the scheme is to assist injured persons to achieve optimum recovery and return to pre-accident levels of activity and work. In circumstances where the weight of the evidence establishes that the applicant has ongoing symptomology and has not returned to pre-injury activities, her experience is a factor in whether it is necessary that treatment be provided, and whether it is reasonable.
Is the treatment cost-effective?
This is a closed period claim. The respondent did not suggest that the cost was unreasonable and I am satisfied that it is reasonable in the circumstance.
Summary of decision – is the treatment necessary and reasonable?
It is not in dispute that in a motor vehicle accident on 4 March 2020 the applicant sustained the injury of a musculoligamentous sprain to her neck with a whiplash associated disorder.
It is also not in dispute applicant has ongoing pain and weakness, being pain and discomfort in her shoulder and neck, as well as headaches that onset during the working day. She has not returned to her pre-accident activities.
The applicant contends that the injuries she sustained in the motor vehicle accident have not resolved and her ongoing symptoms are a result of those injuries and that she needs guided treatment in order to recover. The respondent considers that to the extent there is any ongoing symptomology, other factors may be contributing, and in any case, treatment should be aimed at independence.
The opinion of Dr Wallace in April 2020, based on radiological evidence, is that there is no evidence of structural abnormality at her cervical spine related to the injury nor any evidence of ongoing disability. I accept this evidence.
Generalised medical opinions, most relevantly the SIRA Guidelines, suggest that soft tissue injuries of the kind sustained by the applicant should be expected to resolve within eighteen months. I accept this as a statement of generality, but it does not address the applicant’s individual circumstances. The respondent has not established that the SIRA Guidelines are relevant to the MAI Act.
Dr Wallace noted that radiological examination showed minor disc bulges. He opined that these appear to be due to age-related degenerative changes and are unrelated to the applicant’s motor vehicle accident. The applicant suggested the injury may have exacerbated the symptomology of this underlying condition. There is little evidence either way as to whether these protrusions revealed by the radiography were aggravated and prompted to cause symptoms by the motor vehicle accident, or indeed are in anyway related to the continuing source of pain. I draw no conclusions on this point.
As of April 2021 Mr Klebansky notes “demonstrated muscle weakness” and other limitations in the applicant’s spine and mobility. The applicant’s evidence of her ongoing incapacity is consistent with this. This report was not before insurer at the time of the internal review decision, but it is not inconsistent with the report of Dr Liang, which was available, and was more recent than that of Dr Wallace.
On balance, and based on the medical evidence available, I am satisfied that the applicant sustained a soft tissue injury in the accident. She is still suffering symptomology consistent with those injuries.
I accept, as a general principle, that it is unusual for symptoms of soft tissue injury to persist for as long as the applicant’s has, but I have no reason to doubt that her symptoms continue. It was open to the internal reviewer to obtain it.
I accept that being at work appears to exacerbate the applicant’s symptoms. However, there is no clear medical evidence before me upon which I could conclude that the applicant’s ongoing symptoms are related to anything other than the injury sustained in the motor vehicle accident. There was no such evidence before the internal reviewer either.
On this basis, I accept that the applicant continues to suffer pain and weakness, at least in part as a consequence of the whiplash injury sustained in the accident, and it is necessary that the applicant continue to receive treatment for those continuing symptoms.
As to what treatment is reasonable, the applicant is actively trying to undertake treatment for her symptoms. She believes she needs further treatment. She is of the view that home-based exercise has not been sufficient.
The respondent does appear to deny that some additional treatment is necessary, but its position is that home-based exercise program is sufficient, and the applicant has (or will have, after two sessions) the necessary skills to conduct that treatment. Even if I accept this, and accept that home-based rehabilitation is the usual best practice, I also accept that the home-based exercise regime does not appear to have achieved the desired outcome.
The applicant has tried several courses of treatment. She expressed frustration to her general practitioner about the progress of recovery, notes from Guardian suggest that her treating team are likewise frustrated with some aspects of their interaction with her. Miscommunication or disconnection between the applicant and her rehabilitation provider may explain some of the apparent failures in her recovery process, although this is speculation. In any event, her general practitioner has recommended a different physiotherapist, one who she believes is experienced with similar cases, and that physiotherapist has recommended group exercise sessions. The evidence of that physiotherapist is that group exercise sessions will address the applicant’s ongoing issues, including her pain and headaches, by building strength. In light of the continuing symptomology, a limited further period of treatment is reasonable.
In the circumstances, I am satisfied that the provision of a further series of group exercise classes for a closed period is a necessary and reasonable treatment, in circumstances where the applicant has ongoing symptomology, a reasonable pattern of compliance with her recovery plan, and a commitment to completing the treatment.
I am satisfied that the proposed treatment is reasonable and necessary.
Accordingly, pursuant to section 112(1)(a) of the Motor Accident Injuries Act 2019 the applicant is entitled to payment of the expenses for all of the group exercise sessions recommended by Mr Klebansky in the claim dated 12 January 2021.
Orders
Pursuant to section 197 of the Motor Accident InjuriesAct 2019 the respondent’s internal review decision dated 16 February 2021 to refuse to pay for twenty-two (22) group exercise sessions is set aside.
The Tribunal makes the following decision: that the respondent is to pay for the twenty-two (22) group exercise sessions as recommended by Mr Klebansky of ‘Back in Strength’ in Allied Health Record request No 2 – Physiotherapy dated 12 January 2021.
………………………………..
Presidential Member H Robinson
| Date(s) of hearing | 26 May 2021 |
| Solicitors for the Applicant: | James Trelor, Malliganis Edwards Johnson |
| Respondent: | Luke Blayney, authorised representative |
Attachment A
6.4 Treatment and care that is considered reasonable and necessary
In deciding whether treatment and care is reasonable and necessary an insurer must
consider the factors set out in section 120 of the MAI Act.
6.4.1 Directly related to a person’s injuries
Treatment and care will be directly related to a person’s injury if a service relates to an injury caused by the motor accident including the exacerbation of a pre-existing injury. An insurer may consider the time elapsed since the motor accident, and any subsequent injuries or comorbidities, in determining whether treatment and care is directly related to a person’s injury.
6.4.2 Benefit to the participant
Treatment and care will benefit a person if:
· it will assist the injured person’s recovery or management of the person’s injury;
· it has specific goals, an expected duration and expected outcomes and these are understood and agreed by the injured person;
· it will not cause adverse outcomes or harm to the person;
· there are medical reports or assessments that show the treatment or care will benefit the person;
· the treatment or care has been provided in the past to the person with positive results or outcomes.
6.4.3 Appropriate for an injury
Treatment and care will be appropriate for an injury if:
· it is based on current clinical practice, evidence-based practice or clinical guidelines;
· there is good evidence for the efficacy of the treatment over other treatments;
· it will not contradict any treatment and care in the person’s recovery plan.
6.4.4 Appropriateness of a provider
A provider of treatment and care will be appropriate if:
· the provider is appropriately qualified and experienced;
· the provider holds any applicable registrations, clearances or licences;
· the provider can deliver services having regard to the injured person’s age, ethnicity and any cultural and linguistic factors;
· the provider is at arms-length to the injured person;
· the injured person can readily access the provider;
· The fees and charges of the provider are reasonable having regard to the fees and charges of like providers in the same geographical location or region and the skills and experience of the given provider. A provider of a service will not be at arms-length to the injured person where the service provider is a family member or relative or the injured person or a business owned or controlled by a family member or relative of the injured person.
6.4.5 Cost effectiveness
Treatment and care will be cost effective if:
· the short and long term benefits and expected outcomes from the treatment and care have been considered and outweigh the costs;
· there are no other treatment and care options that will achieve comparable outcomes, including any diagnosis options necessary to determine future treatment and care needs; and
· delaying the treatment and care may result in additional treatment and care costs
0
11
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