The Personal Injury Commission does not have the power to determine a treatment dispute for treatment not incurred and not provided.
Determinations which have been made may be revoked.
The Personal Injury Commission is currently considering how it will identify and manage affected claims and will provide further details soon.
The claimant was involved in a motor accident on 20 March 2020.
He sought approval for treatment including right shoulder surgery and diagnostic blocks. The insurer denied liability for this treatment. Internal Review affirmed the decision.
The claimant sought a review of that decision before the remedy at the Personal Injury Commission. Medical Assessor Woo concluded that the need for treatment was not caused by the accident.
A review application was lodged. The Review Panel directed the parties to provide submissions as to whether a medical assessor had the jurisdiction to determine a claim for medical expenses that had not been incurred.
The review panel (comprising of Principal Member John Harris, Dr Drew Dixon and Dr Geoffrey Stubbs) considered the differences between a medical assessment under the Motor Accident Compensation Act
1999 (MACA) and the Motor Accident Injuries Act
2017 (MAIA). The significance is MACA covered treatment ‘to be provided’, the MAIA does not.
The words ‘to be provided’ have been removed from Sch 2 cl 2(b) in the MAIA.
Accordingly, the ordinary meaning of a medical assessment matter in clause 2(b) of the MAIA Act is that the treatment or care has been provided and does not extend to treatment “to be provided”.
Section 3.24 of the MAIA provides for a claimant’s entitlement to statutory benefits for treatment and care.
An injured person is entitled to statutory benefits for the following expenses ( "treatment and care expenses" ) incurred in connection with providing treatment and care for the injured person--
- (a) the reasonable cost of treatment and care,
- (b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
- (c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
- No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned. [our emphasis].
The wording of s 3.24 expresses statutory benefits “incurred” in connection with providing treatment and care. Principal Member Harris described the word “incurred” as being in the past tense.
As such, Personal Injury Commission’s Medical Assessors had no power to determine a claim for medical expenses not incurred and not provided.
In this instance, Mr Obeid’s treatment had not been provided and no liability to pay for the treatment had been incurred. The Personal Injury Commission’s Medical Assessors did not have the power to determine this dispute.
Any determination provided by a Medical Assessor in those circumstances should be revoked as it would be unfair to leave, undisturbed, a certificate made without power. This means all prior determinations may be void on the basis that the Personal Injury Commission had no standing to make the determination.
Principal Member Harris discussed a construction “‘which appears irrational and unjust’. He agreed that it might be considered unjust that an injured person is left without remedy unless they incur the liability for the expense, however, the authority did not support this situation being so significantly unjust to require alternative construction.
Questions as to the extent of statutory benefits are issues of policy and are matters for the legislature.
The Personal Injury Commission is considering how it will identify and manage affected claims and will provide further details soon.
Post by Hicksons' Partner, Naomi Tancred and Special Counsel, Laura D'Alessandri.