CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Mayer v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 393	
		
Claimant:	Alexander Mayer	
		
insurer:	Insurance Australia Limited t/as NRMA Insurance	
		
Member:	Elizabeth Medland	
		
DATE OF DECISION:	24 July 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute regarding liability for treatment and care expenses under section 3.28; claimant had earlier been certified as being wholly at fault for the accident; claimant had surgery within the “liability period” which was the subject of a medical assessment which certified the surgery to be reasonable and necessary and caused by the accident; insurer denied treatment expenses outside the “liability period”; claimant self-represented and argued that the expenses claimed were directly related to the surgery that the insurer was found liable for and ultimately paid for; issue for determination centred on statutory interpretation of the words “expenses incurred” contained within section 3.28(1); Held – “incurred” is not synonymous with “provided”; the liability for the reasonable and necessary treatment expenses directly related to the surgery were “incurred” at the time of the surgery and therefore the insurer is liable; issue of “reasonable and necessary” is not a miscellaneous claims dispute and would amount of a “medical assessment” matter for the purposes of Schedule 2.
	
determinations made:	CERTIFICATE
In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 
1.	For the purposes of s 3.28 of the Act, the insurer is liable for treatment and care expenses that are directly related to, and reasonably contemplated at the time of, the surgery (C3/4 anterior cervical discectomy and fusion surgery) carried out on 4 July 2023, whether or not the treatment was provided after the 26 week period (13 July 2023). 	

STATEMENT OF REASONS
introduction
1.	Mr Alexander Mayer (the claimant) suffered injury as a result of a motor accident occurring in New South Wales on 12 January 2023. He subsequently lodged an application for statutory benefits upon Insurance Australia Limited t/as NRMA Insurance (the insurer). 
2.	The claim was initially accepted, however, ongoing liability for statutory benefits was denied on the basis that the insurer considered the claimant to be wholly at fault. The claimant disputed such decision. 
3.	Such dispute came before me in separate proceedings and I ultimately issued a determination that the claimant was wholly at fault, meaning that he was not entitled to ongoing statutory benefits beyond 26 weeks. 
4.	A further dispute has arisen as to liability for a number of treatment expenses. The insurer has denied payment of such expenses on the basis that the treatment occurred after the liability period ended, in accordance with my earlier determination. The claimant argues that the treatment is related to surgery he underwent, that was funded by the insurer, during the first 26 weeks. 
5.	The claimant subsequently lodged an application with the Personal Injury Commission (Commission), seeking a determination of the dispute. The matter has come before me as a Member of the Commission. 
6.	Initially the insurer argued that I did not have jurisdiction to determine the dispute because the claimant did not request an internal review of the decision, as required by s7.41 of the Motor Accident Injuries Act 2017 (MAI Act). 
7.	A number of teleconferences occurred that focussed on the jurisdiction/internal review issue and further information, documentation and a telephone recording were provided and considered by me. The claimant argued that he had, in effect, requested an internal review and the insurer did not undertake one. 
8.	During the course of the jurisdiction issue being ventilated the claimant took the step of requesting an internal review from the insurer. The insurer responded by asserting that because the liablity period had ended they were not required to undertake an internal review. 
9.	I held a further, and final, teleconference on 12 June 2024. The insurer did not attend the teleconference. It would appear that there was a technical mishap in this regard. In any event, I noted in the relevant preliminary conference report that on the basis of the telephone recording of a conversation between the claimant nd the insurer, an internal review had not been initially requested by the claimant. However, I also noted the insurer’s change of position whereby they not assert the insurer is not required to conduct an internal review. 
10.	I made a direction that the insurer indicate whether they agree that as a Member of the Commission I can now determine the substantive matters in dispute. The insurer subsequently confirmed in written submissions dated 18 June 2024 that the insurer agrees that the Commission has jurisdiction to determine the dispute. 
11.	I subsequently directed that the insurer provide me with copies of all treating medical evidence so that I could properly consider the dispute. Such evidence was received by me on 3 July 2024. 
12.	I consider that the matter is suitable for an assessment on the papers, and both parties have agreed to such course. 
13.	The dispute is to be determined under Schedule 2 cl 3(n) of the MAI Act, that provides for determination of “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule.  
LEGISLATIVE FRAMEWORK
14.	Section 3.28 of the MAI Act provides, inter alia (and as in force at the relevant time), as follows: 
“(1) 	An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) 	the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) 	the person’s only injuries resulting from the motor accident were threshold injuries.”
DOCUMENTS
15.	I have considered all documents provided by the claimant and insurer in the application and reply and all other additional documentation and submissions provided thereafter. 
BACKGROUND FACTS
16.	In accordance with my earlier determination in the capacity of a Member of the Commission, I issued a determination on 5 October 2023 certifying that the claimant was wholly at fault. 
17.	This determination meant that the liability period for statutory benefits ceased after 13 July 2023, being 26 weeks from the accident. 
18.	The information provided by the parties suggest that the claimant requested the insurer fund surgery for injuries caused by the accident. It was apparent that the surgery was subsequently funded. I had cause to suspect that a dispute as to the costs of surgery was the subject of a medical assessment by the Commission. At my request, Commission staff have provided me with a copy of a certificate and reasons of Medical Assessor Clive Kenna dated 10 January 2024. The certificate certifies that the following treatment and care relates to the injury caused by the motor accident, and is also reasonable and necessary in the circumstances: 
•	the request for C3-4 anterior cervical discectomy and fusion surgery proposed by Associate Professor Jin Tee. 
19.	Medical Assessor Kenna noted an MRI of the cervical spine of 14 February 2023 confirmed at the C3/4 level there was minimal loss of disc height associated with the left posterolateral disc protrusion extending into the left C4 exit foramen and compressing the exiting left C4 nerve root. 
20.	It was also noted that Associate Professor Jin Tee of the Alfred Hospital noted in a letter of 27 May 2023 that the claimant’s neck was extremely stiff and he was unable turn to the left and had left sided radiculopathy with nerve root impingement. 
21.	A subsequent MRI showed severe left sided C3/4 foraminal stenosis but essentially secondary to the disc prolapse. 
22.	Consequently, the proposed surgery was recommended. However, the insurer declined the request for surgery. 
23.	Medical Assessor Kenna then notes that in view of the claimant’s clinical state he took a loan from his father and self-funded the operative procedure, which he then, on 4 July 2023, underwent at the Peninsula Private Hospital, where he had a C3/4 anterior cervical discectomy and fusion. 
24.	The findings of Medical Assessor Kenna following examination of the claimant suggest that the claimant had a good result from the surgery, with the claimant often being completely asymptomatic, while experiencing some mild pain no more than 1-2/10. 
25.	On the evidence, the surgery could be described as a great success. 
SUBMISSIONS
Insurer submissions
26.	In submissions dated 18 June 2024 the insurer notes that the relevant “…26-week period consists of 182 days, meaning that the statutory benefit entitlement period commenced on 13 January 2023 and ceased on up to and including 13 July 2023…” 
27.	The insurer then submits: “therefore, the insurer submits that Mr Mayer was entitled to treatment and care benefits incurred or provided up to and including to the date of 13 July 2023.” 
28.	Noting the reimbursement requests made by the claimant relate to treatment and care costs that were not incurred on or before 13 July 2023 fall outside the statutory benefits period as limited by s 3.28 of the MAI Act. 
Claimant submissions
29.	The claimant has provided a list of treatment and related expenses claimed. The list includes a number of expenses seemingly directly related to the surgery, and received prior to 13 July 2023 that the insurer has paid for. This totals $42,032.06. The remaining treatment and related expenses claimed, that the insurer has denied payment for is as follows: 
Date of Treatment	Description	Cost $	
25/9/23	Post-op surgeon consultation – Peninsula Private	250.00	
25/8/23	Frankston Pain Management consultation	200.00	
28/7/23
18/8/23
22/8/23
15/9/23
2/10/23	Post-op general practitioner (GP) appointments (paid by claimant)	460.00	
14/7/23
16/7/23
17/7/23
25/7/23
8/8/23
10/8/23
15/8/23	Post-op GP appointments (unpaid and overdue)	744.00	
14/7/23 – 18/1/23	Post-op medications	339.92	
To date	Rehabilitation (gym membership) 	$150.00	
22/1/24	Post-op surgeon consultation, Peninsula Private	250	
7.8.23	Travel to radiology – 8km	5.28	
25.8.23	Travel to Frankstown Pain Management – 82km	54.12	
29.8.23	Travel to Frankstown Pain Management – 82 km	54.12	
25.8.23	Travel to Peninsula Pain Health (Bed Pole) – 98km	64.68	
25.9.23	Travel to Peninsula Private – post-op review	54.12	
11.10.23	Travel from Rosebud Hospital (taxi)	19.53	
Various	Travel to GP consultations (18 as listed above)	327.36	
	TOTAL	$3,023.12	
30.	In this application form lodged with the Commission, the claimant essentially states that the insurer has denied the treatment because some costs were “technically paid after the liability period ended, despite them being one hundred percent related to the surgery.”
31.	In an email to the insurer dated 8 February 2024 the claimant points out that the surgery took place within the liability period of the insurer. He argues that any costs associated with the surgery are the responsibility of the insurer, regardless of the costs – “surgery costs are surgery costs.” 
FINDINGS
32.	The insurer has argued that the claimant is only entitled to treatment and care expenses “incurred or provided up to…” the cessation of the relevant 26 week period (being after 13 July 2023). 
33.	This submission effectively is an extension to the wording in the relevant statutory provision. As set out above, the relevant wording of s 3.28 provides that an injured person is not entitled to treatment and care expenses “incurred” more than 26 weeks after the accident (if found to be wholly or mostly at fault). The words “or provided” utilised by the insurer are simply absent from the provision. 
34.	Accordingly, in my opinion the real issue that requires determination is the meaning of the word “incurred” in the context of the provision. 
35.	In terms of statutory interpretation, generally the meaning of a statute is the grammatical meaning, however, that is not always the case. 
36.	In the leadings case for statutory interpretation, Project Blue Sky v ABA [1998] 194 CLR 355 (Project Blue Sky) at [780], Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ found: 
“The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning…But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” 
37.	Section 37 of the Interpretation Act 1987, requires that when interpreting a certain statutory provision, a construction that would promote the purpose of the object underlying the Act is to be preferred to a construction that would not promote that purpose or object. 
38.	After carefully considering the wording of s 3.28, I find that the words should be given their grammatical meaning. In this regard, I reject any suggestion that words “or provided” should be read into the provision. 
39.	This leaves the interpretation of “expenses incurred” as contained in s 3.28. 
40.	It is notable that the section does not refer to treatment actually received or treatment provided. It instead refers to the “expenses” related to same. To my mind, this invokes a meaning of liability for payment rather than the date of provision of services/treatment. 
41.	The Cambridge dictionary provides the following definition of “incur” as a verb: “to experience something, usually something unpleasant, as a result of actions you have taken.”  This suggests that one can “incur” something after a particular action. 
42.	In my opinion, the words “expenses incurred” is not synonymous with the words “treatment received” or “treatment provided” and therefore can be asynchronous. 
43.	In my opinion “incurred” in the context of expenses, equates to a meaning of becoming liable for an expense. It follows therefore, in my opinion, that the insurer, once deemed liable for the surgery, became liable for all related treatment that would be reasonably contemplated as being reasonable and necessary at the time of the surgery. 
44.	The claimant’s simple statement that “surgery costs are surgery costs” holds considerable merit, in my view. 
45.	This interpretation is in line with the objects of the Act contained in s 1.3 of the MAI Act, specifically s 1.3(2)(a) that provides that the objects include: “to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities.” 
46.	This is particularly so in situations, such as the subject matter, where delays in receiving treatment due to a denial of liability by the insurer that necessitates a dispute process to unfold where ultimately the insurer is found liable.  Such situation has the potential to significantly prejudice a claimant, and their “optimum recovery” from injuries if s 3.28 were to be interpreted the way the insurer contends. 
47.	Whilst my initial intention was to carefully consider all medical evidence and make a determination on each item of treatment in dispute, upon further reflection I consider that such a determination would be outside my power. In this regard, I note that the question of whether treatment is reasonable and necessary and related to the injury caused by the accident is deemed a “medical assessment matter” under Schedule 2 cl 2(b) of the MAI Act. 
48.	By way of comment only, however, it would appear prima facie that the expenses claimed could be categorised as being reasonable and necessary and directly related to the subject surgery. Although, there may be some question as to whether gym membership is directly related to the surgery. However, this is a question to be answered after careful consideration of medical evidence and is not a question for my determination in a miscellaneous claims matter. 
CONCLUSION
49.	I find that the insurer is liable for treatment and care expenses that are directly related to, and reasonably contemplated at the time of, the surgery (C3/4 anterior cervical discectomy and fusion surgery) carried out on 4 July 2023, whether or not the treatment was provided after the 26 week period (13 July 2023).