4 July 2018

NSW Supreme Court decides that MAS cannot modify the treatment dispute which is referred for assessment


Her Honour Justice, Adamson SC of the NSW Supreme Court, delivered Judgment in the matter of Insurance Australia Limited v Kong Lai Kai [2018] NSWSC 958, on Friday, 22 June 2018.

Her Honour granted administrative relief from a decision of the Proper Officer in the Medical Assessment Service at SIRA, where there had been a failure to refer part of a treatment dispute referred for assessment by a CTP insurer under section 58 of the Motor Accidents Compensation Act 1999 (NSW).

The MAS application

The claimant had claimed a specific number of sessions of each type of treatment and the insurer disputed, based on its own medical evidence, that any treatment after January 2016 was reasonable and necessary or causally related.

The insurer framed the ‘medical dispute’ as representing a range between 0 and the number of the sessions/consultations claimed for each type of treatment.

MAS conducted the allocation review and prepared letters of instruction to each of the Assessors appointed to assess the medical dispute. In the letters of instruction, the claim for care was referred as a range of hours between, for example, 0 to 6 hours per week of commercial assistance for assistance with the tasks set out by the claimant. An assessment of the dispute on that basis avoids the issue which arose in the matter of Girgis1 where MAS issued a certificate certifying that 4 hours per week was not reasonable but the CARS Assessor still awarded care for an alternate number of hours, contrary to the number of hours assessed by the doctor in the statement of reasons.

While the Proper Officer accepted that a range was appropriate for the referral in relation to care, she did not accept that a range was appropriate in relation to the other forms of treatment claimed.

The Summons

A Summons was filed seeking a declaration that the Proper Officer had failed to exercise her statutory duty to refer the ‘medical dispute, in its entirety.

Her Honour held that the Proper Officer is obliged to refer the dispute that is referred by the parties and:

the Authority had no right to interfere with the parameters of the dispute referred to it.’

On the primary issue, the first defendant:

contended that the ambit of the medical dispute which was required to be referred under s 60(2) was a factual matter (although not a matter of jurisdictional fact) for the Authority to determine.’

However, Her Honour rejected that submission, finding that:

‘the insurer was entitled … to have the medical dispute which it referred to the Authority referred to the Assessors and not merely an expurgated version of it which had been filleted and edited by the Authority in consultation with the claimant.

At paragraph 66, Her Honour went on to accept the plaintiff’s Mr Robinson’s submission that:

this micromanaging and dictation of the nature and scope of a medical dispute is impermissible.’

and she went on to hold that:

‘the approach taken by the Authority has deprived the insurer of having its medical dispute result in a certificate which provided conclusive evidence as to what, if any, treatment was required within the range…’

Further, that:

‘By referring only the claimant’s version (in the example above), the Authority refused to refer part of the insurer’s medical dispute.’

Her Honour was satisfied that the Authority had failed to discharge its onus to refer the medical dispute that was referred to it for assessment.

What does it mean?

This decision continues the expansive approach that the Supreme Court has taken in Scott2 and Lithgow3 to a Medical Assessor’s power to determine disputes with respect to treatment. In Scott, they determined that a claim for gratuitous assistance was a claim for treatment. In Lithgow, the Court determined that a Medical Assessor could determine a dispute where treatment was not claimed and now, that the Proper Officer cannot modify a referral referencing the claimant’s particulars and is under statutory obligation to refer our medical disputes as they are framed.

The decision also affirms the important role a Medical Assessor plays in conclusively determining the dispute between the parties to avoid the problem that arose in Girgis by referring to the range of the claim.

Going forward this should greatly reduce the work involved for insurers, their solicitors and importantly the Authority in framing the disputes for referral, as the court has held that the Authority is not permitted to modify the referral which is made.

Treatment disputes remain a powerful tool to be used by Insurers as an independent Medical Assessor can conclusively determine a Claimant’s need for treatment (including care) based on a clinical assessment.

The Medical Assessment Service is presently reviewing their internal procedures for the referral of treatment disputes to Assessors given the additional guidance provided by the Supreme Court.

1Allianz v Girgis [2011] NSWSC 1424
2Insurance Australia Limited t/as NRMA Insurance v Scott (2016) 92 NSWLR 741
3Insurance Australia Limited t/as NRMA Insurance v Lithgow [2017] NSWSC


Daniel is an experienced insurance lawyer with close to 20 years advising clients on insurance litigation.  He specialises in...

Melinda is an experienced insurance litigator who helps insurers resolve CTP claims involving complex liability and quantum issues.

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