Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 54

Motor Accident Injuries Act 2019 ss 6, 60, 120, 123, 188, 191, 193, 197

Subordinate

Legislation cited: Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 s 6

Motor Accident Injuries (Treatment and Care) Guidelines 2019 guidelines 3.1.1, 3.1.3, 4, 4.1.2, 4.2.1, 4.4.2

Motor Accident Injuries (Internal Review) Guidelines 2019 guidelines 4.1.1, 4.2.5, 4.4.1

Cases cited: Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Williams v AAI Limited ACN 005 297 807 Trading as GIO [2021] ACAT 100

Tribunal: Acting Presidential Member T Kyprianou

TRIBUNAL: Acting Presidential Member T Kyprianou

1. In response to the applicant's Application to present additional information or evidence dated 18 May 2021, the applicant is given leave to present to the Tribunal the applicant's clinical notes held by Dr Andrew Serafim and is denied leave to present Dr Serafim's report dated 11 July 2021.

2. The respondent's reviewable decision dated 26 March 2021 is set aside.

3. The matter is remitted for reconsideration by the respondent in accordance with the Motor Accident Injuries Act 2019 and the Motor Accident Injuries Guidelines.

4. The applicant is to lodge with the tribunal and give to the respondent an itemised list of costs she has incurred, in accordance with Regulation 6(2) of the Motor Accident Injuries (ACAT Costs Orders) Regulation 2020 and any submissions she wishes to make on the issue of costs by 23 February 2022.

5. The respondent is to lodge with the Tribunal and give to the applicant any submissions it wishes to make, if any, in relation to the application for costs and the

applicant's list of costs, or alternatively advise the tribunal and the applicant that it does not propose to make any submissions by 2 March 2022.

The Tribunal will make a decision in relation to the applicant's application for costs upon receiving from the parties the information set out in orders 4 and 5 above.

1. The review of the decision the subject of the Application for Review of Insurer's Decision (the Application) in this matter, was conducted without a hearing pursuant to section 54(1) of the ACT Civil and Administrative Tribunal Act 2008. Both parties agreed for a decision to be made on the documents and no hearing was held.

2. In addition to the application, the Tribunal has considered and made an order in relation to the applicant's application dated 18 May 2021 for leave to present additional information or evidence. The application dated 18 May 2020 was decided by the Tribunal before commencing deliberation of the substantive application.

3. The reasons for the decision are set out below.

4. The applicant was injured in a motor accident in the Australian Capital Territory on 8 August 2020. The motor car she was driving was hit from behind at a roundabout by another motor car. The collision occurred at low speed and the damage caused to the two motor cars was reasonably minor.

5. On 28 September 2020 the applicant lodged with the respondent an Application for Personal Injury Benefits dated 22 September 2020.[1] In that application the applicant stated that she suffered the following injuries:

right sided leg and hip pain and numbness associated with some neck discomfort and numbness in both arms.[2]

6. She stated further that she was not suffering an illness or injury affecting the same or similar parts of her body at the time of the accident.[3]

7. At the time of the motor accident she was 85 years of age.

8. Liability for the Application for Defined Benefits was accepted by the respondent on 4 January 2021. The letter advising that liability was accepted[4] refers to the Application having been received on 7 December 2020. This appears inconsistent with the earlier documents listed in the respondent's Index of Documents, which support that the Application had been received by the respondent much earlier than 7 December 2020 and the reviewable decision itself which states that the Application had been received on 28 September 2020.[5] I have assumed, though it is not entirely clear from the documents available to the Tribunal, that the Application for Defined Benefits was deemed to have been received on 7 December 2020 because the respondent issued an additional information notice, under section 60 of the Motor Accident Injuries Act 2019 (MAI Act) and the additional information was not received until 7 December 2020.

9. In January 2021 the applicant was referred to an orthopaedic surgeon, Dr Burns by a neurosurgeon, Dr Ow-Yang. The applicant had earlier been referred to Dr Ow-Yang by her general practitioner (GP) Dr Serafim.

10. The respondent had initially approved the consultation with Dr Burns on the wrong understanding, as would later transpire, that she had been referred to him for treatment of her lumbar spine.[6]

11. Dr Burns wrote to the respondent on 14 February 2020 pointing out that the referral he had was for treatment of the applicant's right hip and not her lumbar spine as indicated in the approval for treatment letter from the respondent. He inquired as to whether approval was provided to treat the applicant's right hip.

12. On 25 February 2021 Dr Burns wrote to the respondent advising that he had recommended surgery to the applicant for right total hip replacement (THR). He requested approval from the respondent for that surgery.

13. By letter dated 4 March 2021 the respondent advised the applicant that approval for the surgery requested on her behalf by Dr Burns had been denied, as it was not considered that that treatment was reasonable and necessary. The respondent said that the treatment was due to osteoarthritis which was not caused by the motor accident and there was no medical evidence to indicate that the right hip was injured or exacerbated in the motor accident.

14. On 15 March 2021 the applicant sought internal review of the decision dated 4 March 2021. That request is not included in the MAI documents. The internal review was conducted, in accordance with section 191 of the MAI Act and a decision issued on 26 March 2021 (the reviewable decision).

15. The reviewable decision affirmed the initial decision of 4 March 2021 to the effect that the respondent would not pay for the cost of the applicant's right total hip replacement. It concluded that there was insufficient medical evidence to support the request for the right total hip replacement or to support that the treatment was related to a personal injury sustained in the motor accident and that therefore the initial decision was affirmed.[7]

16. On 22 April 2021 the applicant lodged the application with the tribunal seeking external review under section 193 of the MAI Act.

The applicant's application for leave to present further information/evidence

17. By application dated 18 May 2021 the applicant sought leave of the Tribunal to admit the applicant's clinical notes from her GP's practice as well as a report her solicitors had requested Dr Serafim to prepare. The clinical notes had first been requested by the respondent on 26 October 2020. However, Dr Serafim had not provided them until a further request was made by the applicant's legal representatives on 17 May 2021. The medical report, which is dated 11 July 2021, was prepared by Dr Serafim at the request of the applicant's legal representatives on 17 May 2021.

18. Section 197(2) of the MAI Act provides that, subject to section 197(3), in deciding an external review application, the tribunal must "only consider the information that was available to the decision-maker when the decision was made".

(3) However, the ACAT may, on application by a party, give the party leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made.

a medical report for an examination undertaken, but not reported on, when the decision was made

20. The explanatory statement of the Motor Accident Injuries Bill 2019 provides the reasoning for section 197(3).

In deciding an application ACAT must either affirm, amend or set aside the decision and: substitute another decision in its place; or remit the matter back to the insurer. As the application is not a merit review, only a review on questions of law and fact, ACAT can only consider information that was available to the insurer. However, ACAT may give permission for a person involved in the external review to admit information that was not reasonably available at the time the insurer made the decision. This may apply in the circumstances where a person has had a medical examination conducted, however, the report was not available before the decision was made.

21. As stated by Presidential Member Robinson in Williams v AAI Limited ACN 005 297 807 Trading as GIO [2021] ACAT 100 (Williams) at [50]:

Stated briefly, the intention appears to be to encourage the parties to gather all the pertinent information before a decision is made. This is to discourage parties 'building a case' for the purposes of the Tribunal hearing, and is consistent with the nature of the review the tribunal is (according to the Explanatory Statement), intended to undertake, which is clearly stated to be a review 'on questions of law and fact' only (i.e. 'only' a review on questions of law and fact and not a merits review).

22. Dr Serafim's clinical notes were requested by the respondent as far back as October 2020. They had not been provided and they were therefore not reasonably available to the decision-maker when the decision under review was made. The clinical notes are relevant to the deliberation of the issue in dispute between the parties as they disclose information about the applicant's medical condition pre and post the motor accident. I have therefore granted the applicant leave to admit the clinical notes into evidence in considering the external review application.

23. Dr Serafim's report of 11 July 2021 was also unavailable at the time the reviewable decision was made. The applicant, who seeks to rely upon it, could have asked Dr Serafim to prepare it at the time she sought approval for payment of the cost of the right total hip replacement, or at the time she sought internal review of that decision in order to provide it to the decision-maker. There is no evidence that she asked Dr Serafim for a report to provide to respondent. The respondent could have also asked Dr Serafim for a report at any time, or alternatively it could have asked the applicant to provide a report from her GP, in accordance with section 190(1) of the MAI Act at the time she applied for the internal review, but it did not do so.

24. The respondent has advised that it does not oppose the information the applicant seeks leave to rely upon being admitted.[8] This information includes Dr Serafim's report. In some circumstances, it may be appropriate for the tribunal to give leave to a previously unrepresented applicant to admit further information at the external review stage on the basis that the information was not reasonably available to the decision-maker at the internal review stage. In this case I do not propose to consider whether those circumstances exist. Having considered the information in the report, the clinical notes produced by Dr Serafim and his qualifications as a general practitioner, I do not consider that the report would assist the Tribunal any more than the other documents available to the Tribunal to reach a decision under section 197 of the MAI Act. Though the report contains information, which is very relevant to the issue in dispute, it does not on its own contain sufficient information to enable the Tribunal to amend the reviewable decision or to make a substitute decision. If the reviewable decision is set aside the Tribunal considers that further medical opinion, preferably from Dr Burns or another specialist orthopaedic surgeon is necessary in order to decide whether the THR is necessary and reasonable treatment. Other documents, already before the Tribunal, contain sufficient information to enable the Tribunal to decide whether the decision under review should be affirmed or be set aside. Leave to admit the report in evidence is denied.

Documents and submissions available to the Tribunal

25. In addition to the clinical notes of the applicant admitted on the application of the applicant dated 18 May 2021 discussed above, the Tribunal had available to it the following documents when considering the matter:

(a) Documents containing all available information to the decision-maker when the reviewable decision was made filed by the respondent on 11 May 2021 (MAI documents).

(b) Submissions by the respondent dated 10 May 2021.

(c) Applicant's submissions dated 5 November 2021.

(d) Respondent's submissions dated 19 November 2021.

26. The applicant identified the issues in dispute in the matter as:

(a) Whether the recommended THR relates to a personal injury sustained in the motor accident.

(b) Whether the recommended THR is reasonable and necessary.

27. The applicant submits that her GP's clinical notes support that though she suffered from osteoarthritis prior to the motor accident she did not complain of right hip pain or significantly reduced mobility. Her osteoarthritis was exacerbated because of the motor accident and she started using a walking stick. The THR is the result of the exacerbation of her osteoarthritis. The treatment is reasonable and necessary because she had undergone conservative treatment which was unsuccessful in relieving her right hip pain. In his treatment request of 18 February 2021 Dr Burns considers a THR to be appropriate treatment and the THR will benefit the applicant.

28. The applicant seeks orders that the respondent's decision be set aside and that the respondent reimburse the applicant for the expenses she incurred in having the THR surgery.

29. The respondent confirmed that it relied on the finding of the internal review decision that the THR was not related to personal injury sustained in the motor accident.

30. The respondent submitted that the internal review sets out the available evidence and the reasons for the decision and was conducted by reference to the MAI Act the Guidelines and the Regulations. The respondent submits further that no further information has been received since the internal review was conducted which would alter the respondent's prior determination.

31. The respondent submitted that upon presentation by the applicant to her GP four days following the motor accident her GP diagnosed an injury to the lumbar spine and referred her for an MRI Scan and X-ray, which showed degenerative changes. The reviewer noted there was no diagnosis by the GP of any injury or pain to the right hip as a result of the motor accident.

32. The respondent noted further that Dr Burns had provided to the respondent a copy of his consultation letter to the applicant's GP dated 18 December 2021. It submitted that Dr Burns':

report.... was brief, lacked significant detail and did not list the requisite clinical indicators, nor clinical rationale in support of the request for the Right Total Hip Replacement, particularly in the case whereby conservative treatment measures have not been adopted.

The respondent further noted that the applicant's GP's clinical notes and Dr Burns' clinical notes had not been made available though they had been requested. The respondent submitted that those records were crucial to determine the need for THR and whether the treatment was the result of injury sustained in the motor accident.

33. The respondent submitted that section 120 of the MAI Act had not been satisfied because there was insufficient medical evidence to support the request for THR and that it related to injury sustained in the motor accident.

34. The respondent sought an order that the decision dated 4 March 2021 and the internal review decision dated 26 March be affirmed.

35. The Tribunal notes that the respondent's submissions contain a number of statements of fact which are not supported by the MAI documents. For example:

(a) Paragraph 18 of its submissions dated 19 November 2021, where it is claimed that no report from a physiotherapist has been made available - see pages 90-96 of the MAI documents which appear to be a report from a physiotherapist.

(b) Paragraph 21 where it is claimed that the consultation note was requested from Dr Ow-Yang but a response remains forthcoming - see pages 114-116 of the MAI documents where Dr Ow-Yang's consultation letter is produced.

(c) Paragraph 28 where it is claimed that conservative treatment measures have not been adopted - see pages 99-100 of the MAI documents Procare report, where conservative treatment undertaken by applicant is outlined.

(d) Paragraph 31 where it is claimed that the GP's and Dr Burns' clinical records remain forthcoming - GP's produced to the Tribunal and notified to the respondent 16/09/2021; Dr Burns'pages 117-131 of the MAI documents.

36. These inaccuracies are of concern and make the task of the Tribunal harder than it needed to be as information provided in the submissions cannot be relied upon without verification with the documentary information.

37. Section 188(2) of the MAI Act provides that an application for internal review and the conduct of the review, must comply with the MAI Guidelines.

38. The Motor Accident Injuries (Internal Review) Guidelines 2019 (IR Guidelines) provide that an application for internal review must be made in writing and include certain information including the reasons the applicant believes the decision made should be changed and any additional information or documents the applicant considers relevant to a review.

39. The applicant's application for internal review is not included in the MAI documents lodged. The information included in that application is information the respondent ought to have had at the time of the internal review and it is relevant to the review the Tribunal has been asked to carry out. The review conducted by the Tribunal is not a merits review but rather a consideration as to whether there has been an error of fact or law in reaching the reviewable decision.[9]

40. In deciding whether an error of law has occurred the Tribunal needs to consider whether the applicant's reasons for wishing the decision to be reviewed were considered. If no reasons or information in support of the request for review were initially provided it is relevant to know whether the applicant was afforded an opportunity to do so by the reviewer.

41. The IR Guidelines (at 4.4.1) provide that a review is to be conducted in a manner that best supports the main objects of the MAI Act having regard to the personal circumstances and any special needs of an applicant and the facts and circumstances which gave rise to the application for review. The main objects of the Act are set out in section 6 of the Act. They include:

6 (c) support people in motor accidents to access defined benefits.

42. While an insurer is not only entitled but also required to ensure that injured persons only access defined benefits which are rightly payable pursuant to the MAI legislative scheme, object 6(c) and the IR Guidelines generally make it plain that in circumstances where an injured person may be unfamiliar with what information is required to support their claim, care must be taken to afford them fairness and point them in the right direction to access support in articulating and providing information about their claim.

43. On the documents available it is not possible to determine whether the applicant provided reasons or supporting information for her request for a review. It appears unlikely that she did so because if any such information was provided it would have been included in the MAI documents as directed by the tribunal on 28 April 2021. If she did not provide such information, she ought to have been contacted by the respondent and asked to provide the information required by IR Guideline 4.1.1. This Guideline provides that the application for internal review must be made in writing and include, amongst other information, the reasons the applicant believes the decision should be changed and any additional information or documents, the applicant considers relevant to a review of the decision.

44. Further, IR Guideline 4.2.5 relevantly provides that "an insurer should also contact the applicant, as soon as practicable, after receiving an application....to request any additional information or documents reasonably required for the review." There is no evidence that the applicant was requested by the respondent to provide her reasons for seeking the review and any information or documents to support those reasons. In order to conduct a fair review such information or documents are reasonably required.

45. IR Guideline 4.4.1 provides that a review may include a document review, informal discussions with an applicant, a teleconference, a video conference or a face-to-face meeting. While contact with the applicant during a review is not mandated by the IR Guidelines, procedural fairness requires that an applicant is provided with an opportunity to respond to any information relied upon by the reviewer when reviewing the decision. In this matter, there is no evidence that the respondent provided the applicant with any opportunity to comment on documents considered by the decision-maker during the review or to respond to assumptions drawn by the reviewer from information contained in various documents. For example:

(a) The factual investigation report of 8 February 2021 by Brooksight Investigations at the request of the respondent[10] was relied upon by the reviewer to conclude that the photos of the cars post the motor accident did not support that the collision was at speed high enough to have caused significant injury to the right hip.

(b) The letter dated 18 February 2021 from Dr Burns to Dr Serafim[11] was relied upon by the reviewer to draw a number of factual conclusions, such as that the applicant did not have any conservative treatment before seeing Dr Burns, that she had reported to the doctor that she had jammed her right hip in the seat of the car during the accident and that the radiological findings reported by Dr Burns would have taken a long time to develop and as such were unrelated to the injury.

Neither the factual investigation report nor the letter from Dr Burns to Dr Seraphim appear to have been provided to the applicant. There is also no evidence that the initial needs assessment report prepared by Procare[12] was provided to the applicant for her consideration and comments, if she had any, though it contains information which is relevant to the issue under review.

46. Had the applicant been given an opportunity to comment on the documents referred to above and to provide comment on the assumptions and conclusions the reviewer had drawn from some of those documents before the review was finalised, she would have had the opportunity to provide information herself and/or information from her medical treaters which was relevant to the review. Any information provided by the applicant would not have been determinative of whether the THR recommended by her treating surgeon was the result of the injury she sustained the motor accident, but it would have been information that the reviewer would have had to weigh up in reaching the reviewable decision and it may have changed the outcome of that decision.

47. By relying on information which the applicant was unaware of and by making assumptions based on those documents without giving her an opportunity to comment on them or be heard about them the applicant was denied procedural fairness during the internal review process. This amounts to an error of law as it breaches the hearing rule principle.[13]

Assessment of the medical information available

48. As identified by both parties the pertinent factual issues which need to be determined in order to establish if the applicant is entitled to reimbursement for the cost of the THR operation is whether that treatment was directly related to an injury the applicant suffered in the motor accident of 8 August 2020 and whether the treatment was otherwise reasonable and necessary as provided for in the MAI Act and the MAI Guidelines. Medical opinion is relevant to these issues.

49. Section 120 of the MAI Act sets out the factors which must be considered when deciding whether treatment and care is reasonable or 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.

50. The MAI (Treatment and Care) Guidelines (TC Guidelines), which as provided for by section 120 of the MAI Act must be considered when deciding whether treatment is reasonable and necessary, provide guidance to insurers when making decisions on claims.

51. The TC Guidelines provide that a recovery plan must be developed, as required by section 123 of the MAI Act within 28 days from when the insurer gives the injured person a receipt notice for an application for defined benefits.[14]

52. The development of a recovery plan is significant in the assessment of a claim for treatment and care for a number of reasons. First, it must list the injured person's injuries caused by the motor accident. Second, it must list details of treatment which is being undertaken and which is expected to be undertaken in the future. Third, it must contain a statement of all treatment the insurer accepts is reasonable and necessary. Fourth, it must have a date for review of the plan.[15] Fifth, the recovery plan must be developed in consultation with the injured person and their treating doctor or team.[16] Sixth, the injured person and their doctor must comment on the plan before it is finalised.[17] By complying with these requirements, the insurer ensures that extensive consultation and gathering of medical information occurs at an early stage of a claim and that that process continues regularly throughout the life of a claim.

53. In this case the receipt for the defined benefit application was provided to the applicant on 4 January 2021.[18] However, there is no evidence that a recovery plan was developed by the time the applicant, through Dr Burns, requested approval for the THR procedure on 18 February 2021. The MAI documents contain an initial assessment report from Active Recovery[19] dated 25 January 2021 and an initial needs assessment report dated 25 February 2021 prepared by Procare.[20] These reports may have been precursors to the development of a recovery plan, but they do not satisfy the requirements of the TC Guidelines listed above, nor do they meet the definition of a recovery plan set out in section 122 of the MAI Act, which states that 'recovery plan' means a plan that (a) is prepared by the relevant insurer for the motor accident and (b) provides for the management and coordination of the injured person's treatment and care. Further, there is no evidence that the applicant and her doctor were provided a reasonable opportunity to comment on any treatment that the respondent proposed to approve for the applicant's injuries. This consultative process is mandated by section 123(5) of the MAI Act and MAI (Treatment and Care) Guidelines 4.2. As a result of the absence of a recovery plan the gathering of medical information in relation to the applicant's injuries caused by the motor accident did not occur.

54. In fact, the only documents which contain medical information available to the respondent upon which it could rely to assess whether the need for the THR arose out of an injury caused by the motor accident such as any exacerbation of the applicant's pre-existing osteoarthritis, were:

(a) a pro-forma report completed by the applicant's GP on 3 December 2020;[21]

(b) a referral letter from Dr Serafim to Dr Pik dated 11October 2021;[22]

(c) a letter from Dr Burns to Dr Serafim dated 18 February 2020;[23] and

(d) Dr Burns' request for approval of the THR procedure to the respondent which he wrote out on 18 February 2021.[24]

55. Dr Burns' request for approval of the THR surgery arguably suggests that he considered the procedure related to an injury arising out of the motor accident. It would be odd for a medical professional to seek approval for a procedure from an insurer if he were not of the opinion that there was a connection between the procedure and the motor accident the insurer offered cover for.

56. However, as the respondent has submitted, Dr Burns' letter to the applicant's GP dated 18 February 2021, which accompanied the request for surgery approval does not adequately explain how the need for the THR procedure he recommended is connected to any injury suffered by the applicant during the motor accident nor does it provide any other information as to the reasons he recommended the procedure. Further, the letter contains factual inaccuracies, such as the reference to the date of the motor accident.

57. In these circumstances it was open to the respondent to seek further information and clarification from Dr Burns and the applicant before making a decision as to whether it should approve the request for the THR. This is especially so as there was no recovery plan in place with the medical information it should have contained from the applicant's treating team, in accordance with the TC Guidelines.

58. TC Guideline 3.1.1 lists the circumstances in which an insurer may ask for an assessment of an injured person's injuries. These include "to make a decision about the approval of treatment and care expenses". TC Guideline 3.1.3 provides that an insurer should, if appropriate, first request additional information from a treating practitioner prior to requesting an assessment of an injured person's injuries. The justification for this provided in the Guideline is to minimise the frequency of medical appointments for an injured person.

59. It was also open to the insurer to arrange for an assessment of the applicant with an independent orthopaedic surgeon before making the initial decision to reject the applicant's claim for the THR or when she sought internal review of that decision. Such an assessment would be consistent with TC Guideline 3.1.1.

60. Instead, the respondent determined the claim by relying on the scant medical information available which was clearly insufficient to support the claim. Further, some of the factual assumptions made by the internal reviewer were incorrect. For example, the reviewer assumed that the applicant had had no conservative treatment before Dr Burns recommended surgery. According to the information in the Active Recovery and Procare reports[25] the applicant had engaged in osteopathy, massage therapy, acupuncture and hydrotherapy prior to attending Dr Burns.

61. The respondent's decision was also partly based on the fact that the applicant's GP had diagnosed her with lumbar region pain and not a hip injury. The applicant herself reported right side leg and hip pain as well as neck pain in the defined benefits application form dated 17 September 2020 but she did not report lumbar pain. The internal reviewer's conclusion that there was no diagnosis or clinical findings noted by the applicant's GP of any injury or pain to her right hip as a result of the accident is correct based on the medical report form completed by Dr Serafim on 3 December 2020.[26] However, in his referral to Dr Pik dated 11 October 2020[27] in addition to lumbar pain and immobility Dr Serrafim refers to right radiculopathy features which suggests he was aware of right lower limp pain complaints by the applicant. It is reasonably apparent from the clinical notes produced by Dr Serafim[28] and the documents included in the MAI documents[29] that he initially suspected that the right-side leg pain the applicant reported was emanating from an exacerbation of her pre-existing lumbar spine injury. He had the injury investigated by arranging radiological studies of the lumbar spine and referring her to two neurosurgeons, Dr Pik and Dr Ow-Yang. Those investigations did not confirm an injury to the lumbar spine arising from the motor accident. It was not until the applicant saw Dr Ow-Yang in December 2020 that she was referred to an orthopaedic surgeon for treatment of her hip rather than her lumbar spine. That was because Dr Ow-Yang had opined that her pain arose from right hip pain pathology rather than lumbar nerve compression.[30]

62. The applicant herself informed the respondent by email dated 9 December 2021 that Dr Ow-Yang had prescribed more effective analgesic and that it was comforting to talk to someone who understood her situation.[31] Though Dr Ow-Yang's letter to Dr Burns dated 9 December 2020 is included in the MAI documents it was apparently not received by the respondent until 26 March 2021, which is the same date as the date of the reviewable decision. It is therefore possible that the reviewer had not seen it before finalising her decision.

63. The internal reviewer has stated in the reviewable decision that without access to the applicant's pre-accident clinical records, the respondent was unable to exclude whether the need for the THR pre-dated the motor accident. Rejecting a claim on the basis that there is no available evidence to disprove a possible reason for rejecting it is speculative, as the reasoning is not supported by anything other than conjecture. In any event, the applicant's clinical notes from her GP's practice, which were obtained after these proceedings were commenced and have been admitted in evidence, do not reveal that the applicant required right hip replacement prior to the motor accident of August 2020. It is noted that though the request for the clinical notes initially sent by the respondent on 26 October 2020 asked for clinical notes "including, medical certificates, specialist reports, referrals, scans, radiology and investigations", the notes produced do not include any certificates, reports, scans, referrals etc. These documents could be useful in reconsidering the reviewable decision and the parties may wish to ask Dr Serafim to produce them.

64. I am not satisfied that the respondent followed the guidance provided in the IR Guidelines or the TC Guidelines in reaching the reviewable decision.

65. The reviewable decision is flawed because the procedure adopted in conducting the review was unfair to the applicant. The applicant was not provided with any opportunity to comment on documents she had not previously seen, which were relied upon by the respondent to reach the decision. The applicant was also not provided with any opportunity to comment or present any information in response to factual assumptions made by the decision-maker from those documents. This procedural unfairness amounts to an error of law.

66. Further, contrary to the guidance provided by the TC Guidelines, the respondent relied on the lack of medical information supporting the applicant's claim for the THR to reject her claim rather than make any reasonable effort to obtain such information or invite the applicant to provide it. The lack of available medical information was to a large part due to the failure of the respondent to put in place a recovery plan which met the requirements of the MAI Act and the TC Guidelines. The failure to obtain medical information on which the decision could be based and relying instead on inferences drawn from what was clearly insufficient medical information was also an error of law and fact.

68. I do not consider that the information before the Tribunal is sufficient for a substituted or amended decision to be made. Accordingly, the matter is remitted to the respondent for reconsideration.

69. The respondent must comply with the IR and TC Guidelines in conducting the reconsideration. The review is to be undertaken by the respondent as if it were an internal review to commence on the day after the date of these orders.

70. The respondent may properly consider the report of Dr Serafim obtained by the applicant's legal representatives and dated 11 July 2021 in conducting the reconsideration. The respondent may also obtain a report from Dr Alexander Burns and/or another orthopaedic surgeon who assesses the applicant. The applicant must be provided with an opportunity to comment on any documents and information the respondent proposes to rely upon in making the decision and an opportunity to make submissions to the decision maker before the reconsideration decision is finalised.

71. As the reviewable decision is set aside I propose to consider the applicant's application for costs of the application subject to receiving an itemised list of costs from her along with any submissions she wishes to make and subject to any submissions the respondent wishes to make in relation to the issue of costs.

[7] Last paragraph of page 10 of the reviewable decision

[8] Email from Mr Blayney dated 24 September 2021 9.46 am

[9] Williams at [94] and quote from explanatory statement in paragraph 19 of these reasons

[13] Kioa v West [1985] HCA 81; (1985) 159 CLR 550

[15] TC Guideline 4.4.2 lists requirements 1-4 noted above

[28] Entry in clinical noted dated 19 October 2020