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2. Following the accident the Respondent accepted a defined benefits application from the Applicant, who has had various treatments carried out since that time, paid for by the Respondent.

3. On 17 March 2025 the Applicant consulted an orthopaedic surgeon, Dr Damiani, who initially recommended non-surgical treatment. Dr Damiani reviewed the Applicant again on 29 October 2025, when he recommended left shoulder surgery, specifically a ‘keyhole clean-up of the AC joint and removal of a small portion of bone containing cysts’ (the proposed surgery). On 25 November 2025 the Respondent wrote to the Applicant to advise that it was declining payment for the proposed surgery.

4. The Applicant requested that the Respondent conduct an internal review of that decision, which it duly carried out. On 19 December 2025 the internal review confirmed the original decision and the Applicant was advised accordingly. It is the affirmation of the original decision that constitutes the reviewable decision that is now before the Tribunal.

Relevant legislation

5. In accordance with section 38 of the MAI Act, a person injured in a motor vehicle accident is entitled to the payment of defined benefits (including treatment and care benefits) in relation to the injuries sustained.

6. Section 113 of the MAI Act defines treatment and care benefits as expenses incurred in providing for the injured person’s care excluding treatment that is not reasonable or necessary, or treatment that does not relate to the injury sustained in the accident.

7. Pursuant to section 120 of the MAI Act in determining whether treatment is ‘reasonable or necessary’, the insurer must consider: (1) … (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.

8. Section 186 of the MAI Act identifies certain decisions made by an insurer to be internally reviewable, including the decision to refuse payment for proposed treatment. The refusal of payment for the proposed surgery fell into that category.

9. Under section 193 of the MAI Act, an applicant for defined benefits may apply to the ACT Civil and Administrative Tribunal (ACAT) for external review of an ACAT reviewable decision. It is common ground between the parties that this is a reviewable decision within the scope of section 193.

The Tribunal’s role

10. Section 197 of the MAI Act provides that: (1) In deciding an application for external review of an ACAT reviewable decision, the ACAT must, by order— (a) affirm the decision; or (b) amend the decision; or (c) set aside the decision and— (i) make a substitute decision; or (ii) remit the matter for reconsideration by the insurer that made the decision (the decision-maker) in accordance with any direction of the ACAT. (2) In deciding the application for external review, the ACAT 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.

11. Section 193 of the MAI Act (referred to above) also specifies that ACAT review under that Act is confined to questions of ‘law or fact’. In the ACAT 1 case of Williams v AAI Limited, Presidential Member Robinson stated that the nature of the review the Tribunal is intended to take is ‘only’ a review on questions of law and fact, not a merits review (as might apply in other types 2 of cases that come before the ACAT). I agree with and adopt that reasoning. This is not a merits review where the Tribunal has the capacity to substitute its own preferred decision for that of the original decision maker. Rather, the Tribunal is required to consider whether there was a legal or factual error in the decision making process rendering the decision unreasonable. In the circumstances of this case, the Tribunal’s role therefore is to determine whether the Respondent’s decision to refuse payment for the proposed surgery constitutes an error of law or fact.

The Applicant’s grounds of review

12. The following is a summary of the main contentions made by the Applicant in support of his application for review: (a) The Respondent erred by relying for its refusal of shoulder surgery on the fact that since the accident, his reference to shoulder pain had not been consistent. (b) The Respondent erred in the reliance it placed on medical reports provided, at its request, by a specialist rheumatologist (Dr Reiter) and a specialist orthopaedic surgeon (Dr Miniter): (i) Dr Reiter diagnosed his pain/injury to be an aggravation of a pre-existing age-related condition but did not provide any reason for reaching that conclusion.

1 [2021] ACAT 100 2 Williams v AAI Ltd [2021] ACAT 100 at [50] (ii) To the best of his knowledge, the Respondent has available to it his pre-collision medical history, which shows no evidence of a pre-existing shoulder condition. (iii) Dr Miniter concluded, referring to photographs of the damaged vehicle, that the nature of the collision was of such low velocity that it was unlikely to cause whiplash injuries, when he is not qualified to make such an assessment, and his conclusion contradicts an earlier medical report obtained by the Respondent that diagnosed a “Whiplash injury Grade 2”. (iv) Dr Miniter also concluded that there was no evidence of any injury. The Applicant stated that this contradicted the finding of Dr Reiter that there was in fact an injury (even though she considered it to have been an aggravation of a pre-existing condition).

13. A further reason given by the Respondent for refusing payment for shoulder surgery was that in recommending the proposed surgery, Dr Damiani had not explicitly attributed the need for such surgery to the accident. The Applicant contended that the conclusion drawn by the Respondent overlooked the fact that the reason he was referred to Dr Damiani was for assessment in relation to injuries sustained in the collision. The insurer had approved Dr Damiani’s recommendation for earlier treatment. In the Applicant’s view it would have been redundant for Dr Damiani to continue to expressly link his treatment to the collision in subsequent correspondence.

14. In summary, the Applicant contended that the Respondent erred by not reverting to Dr Damiani to clarify whether his recommendation for shoulder surgery was directly related to the vehicle accident; by not seeking reasons from Dr Reiter for her conclusion that the injury was related to a pre-existing condition; and by not seeking further information to clarify the apparent contradiction in the report provided by Dr Miniter.

15. Finally, the Applicant submitted that if the Tribunal found in his favour it should order that the Respondent approve and pay for the shoulder surgery as recommended by Dr Damiani and not remit the matter to the Respondent for further assessment because this would almost certainly cause a significant delay in the treatment of his shoulder injury.

The Respondent’s submissions

16. The Respondent provided a detailed outline of medical treatments and consultations over the period since it accepted the Applicant’s claim for defined benefits, as well as outlining the process by which the internal review was conducted. It referred to medical opinions that either did not attribute the Applicant’s left shoulder injury to the accident, or did not diagnose an injury at all: (i) ‘Dr Reiter considered that the accident “appeared to have aggravated [the Applicant’s] underlying, pre-existing and age-related acromioclavicular joint osteoarthritis” and indicated that any ongoing 3 symptoms were not related to the subject accident.’ (ii) ‘Dr Miniter reported that “examination of the shoulders was within normal limits, there was no evidence of rotator cuff disease, impingement, AC joint pathology, or instability, and a full range of 4 motion was identified on both sides.”

17. The officer conducting the internal review concluded that there was insufficient evidence to correlate the request for left shoulder surgery to the subject accident and for the same reason, ‘it followed that the treatment was 5 also not cost-effective’. The decision-maker acknowledged that there was no evidence to suggest that Dr Damiani was not an appropriate or suitably qualified treatment provider.

18. The Respondent further submitted that the decision-maker relied primarily on the advice of Dr Reiter and Dr Miniter and did not err in doing so. The Respondent stated that each was engaged to consider an issue ‘which

3 Respondent’s written submissions dated 25 March 2026 at [28](c)(i) 4 Respondent’s written submissions dated 25 March 2026 at [28](c)(ii) 5 Respondent’s written submissions dated 25 March 2026 at [28](d) required them to form an opinion on the cause of any shoulder condition 6 suffered by the Applicant’: Each was briefed with a comprehensive range of materials, took a history. and performed an examination, held appropriate knowledge and experience to form the opinions that they formed, and was independent. Each formed the opinion that the Applicant did not presently suffer a condition in the left shoulder that was caused by the subject accident. It was open to the decision-maker to make a finding 7 to that effect in reliance on their opinions.

19. The Respondent stated that Dr Miniter had the added advantage of having been selected independently (not by the Respondent). It acknowledged that the ACAT has found in previous cases that there is a duty on an insurer to perform investigations to understand a request for treatment before making a decision to decline that request. The Respondent submitted, however, that in this case it had discharged that obligation by obtaining opinions on the diagnosis and cause of the Applicant’s condition from independent specialists, and that this duty did not require it to obtain a further opinion 8 from the treating specialist (Dr Damiani).

20. Based on the above contentions, the Respondent submitted that the application should be dismissed.

The application for leave to present further material

21. In accordance with section 197(2) of the MIA Act, the Tribunal should take into account only the information that was available when the Respondent’s internal review was carried out, unless leave is granted to present information that was not reasonably available when the reviewable decision was made. The Tribunal notes in that regard that at the hearing of this matter the Applicant requested leave to tender two medical reports that were not available at the time of the internal review: reports by Dr Romil Jain, a pain management specialist, and Dr Niah Campbell, a psychologist. The Respondent did not oppose those reports being accepted into evidence, and

6 Respondent’s written submissions dated 25 March 2026 at [51] 7 Respondent’s written submissions dated 25 March 2026 at [50] 8 Respondent’s written submissions dated 25 March 2026 at [53] leave has been granted to present that material on the basis that they were not available when the reviewable decision was made.

22. The Applicant also sought to tender two pieces of email correspondence and the results of an online search that were in his possession as at the date of the internal review but were not provided to the Respondent at that time. The Respondent objected to the inclusion of those documents. The Tribunal has denied leave to accept those documents into evidence, on the basis that they could have been but were not made available by the Applicant at the relevant 9 time. They are, in any event, not considered by the Tribunal to have been of 10 likely material value in determining this matter.

The Tribunal’s decision and reasons

23. As indicated above, in the Respondent’s written submissions it acknowledged that there is a duty on an insurer to perform investigations to understand a request for treatment before making a decision to decline that 11 request. It submitted that in this case that obligation was discharged by obtaining opinions on the diagnosis and cause of the Applicant’s condition from independent specialists. The Respondent stated that based on the independent medical opinions, it was in possession of “authoritative 12 evidence on causation” as to the shoulder injury.

24. The Tribunal considers, however, that there were clear inconsistencies in the information relied upon by the Respondent to refuse approval for the proposed surgery; that there was a lack of reasons for some conclusions reached by medical practitioners whose opinions were sought by the Respondent; and there was a failure by the Respondent to follow up a noted absence of relevant information: (a) Dr Miniter’s report stated: “The history is clear, wherein he [the Applicant] has not been involved in a serious injury, and I have no

9 See Ahmad v Insurance Australia Ltd [2025] ACAT 11 at [86] and [107] 10 See Neish v Insurance Australia Ltd [2022] ACAT 24 at [14] 11 Ahmad v Insurance Australia Ltd [2025] ACAT 11 at [166]; Bothe v AAI Ltd [2022] ACAT 12 at [59] 12 Respondent’s written submissions dated 25 March 2026 at [52]–[53] explanation for his presentation. Indeed, I doubt the authenticity of the 13 matter … I can see no evidence of injury.” (emphasis added). This conclusion clearly conflicts with assessments made by other medical practitioners. For example, Dr Reiter’s report (upon which the Respondent also relied) referred to the Applicant’s AC (acromioclavicular) joint osteoarthritis: “marked tenderness of his left acromioclavicular joint with mild pain in this area which stresses the 14 acromioclavicular joint … ”. Dr Damiani’s report confirmed “left 15 AC joint pathology”.

(b) Dr Reiter’s report stated that ‘it appears that [the Applicant] aggravated his own, underlying pre-existing, age-related’ joint pathology; that any aggravation caused by the accident had resolved once he had an ultrasound injection; and that any ongoing issues were 16 due to that pre-existing condition. Insufficient reasons or evidence were provided in support of that conclusion.

(c) In the Respondent’s letter (dated 25 November 2025) advising the Applicant of its refusal of the proposed treatment, it drew attention to the fact that his treating practitioner Dr Damiani had not attributed the need for surgery to the accident. It is the view of the Tribunal that the Respondent should have sought confirmation from Dr Damiani whether, in his opinion, the recommended surgery related to the accident and, if so, the reasoning behind that assessment. No such follow up occurred.

25. There is a difference of view between the Applicant’s treating surgeon, Dr Damiani, and Dr Reiter as to whether further treatment would improve

13 Documents produced by respondent pursuant to order 2 of 13 February 2026 dated 27 February 2026 at 275 14 Documents produced by respondent pursuant to order 2 of 13 February 2026 dated 27 February 2026 at 262 15 Documents produced by respondent pursuant to order 2 of 13 February 2026 dated 27 February 2026 at 270 16 Documents produced by respondent pursuant to order 2 of 13 February 2026 dated 27 February 2026 at 263 the Applicant’s AC joint pathology. An attempt should also have been made to clarify this difference of opinion through appropriate follow up.

26. Where an insurer is faced with apparently conflicting advice or information or there are material gaps in the evidence, it should take all reasonable steps to necessary care to explain why it prefers one assessment over another. In this case, the Tribunal considers that the Respondent did not have available to it sufficient information to reach the conclusion that it did and that it therefore failed to take reasonable steps to satisfy itself that the Applicant 17 was not entitled to benefits before refusing to pay them.

27. After considering the medical opinions provided by Drs Reiter and Miniter but without seeking to obtain relevant reasoning or to resolve apparent inconsistencies between the two, the review officer formed the view that the shoulder injury for which the Applicant was seeking surgery was not caused by the accident. The officer also decided that there was no need to obtain 18 clarification from Dr Damiani as to his opinion on causation. The Tribunal considers that the gaps in the information obtained by the Respondent were sufficient to render the reviewable decision unreliable. The additional information, if sought, might realistically have altered the review outcome.

28. Having reached that conclusion, it remains for the Tribunal to consider the appropriate decision pursuant to section 197 of the MAI Act. The Applicant submits that the appropriate course of action is for the Tribunal to order that the proposed surgery be approved. The Tribunal does not consider that it has sufficient basis for making such a decision, noting that in the absence of appropriate follow up, the questions of whether the proposed surgery is likely to be effective as well as whether any need for such surgery can be attributed to the car accident remain open, necessitating further enquiry and clarification.

17 See Bothe v AAI Ltd [2022] ACAT 12 at [66]; Ahmad v Insurance Australia Ltd [2025] ACAT 11 at [169] 18 Respondent’s Written Submissions dated 25 March 2026 at [48] The Tribunal notes

29. The Tribunal notes that that in the Applicant’s case, the defined benefits period has now expired. In its submissions the Respondent’s requested that, if the Tribunal is minded to remit the matter for further determination, consideration should be given by the Tribunal to when benefits would become payable should the Respondent conclude upon reconsideration that the proposed surgery should have been approved. On remittal, the Respondent is required to determine whether the Applicant’s entitlements were properly determined at the relevant time, that time being the date of the reviewable decision, which fell within the defined benefits period. If the Respondent concludes that a defined benefit was payable at that time, any benefit that should have been approved at that time should in all fairness be provided to the Applicant as it was then due.

30. Although there are time limits on the payment of defined benefits, the Applicant’s request for benefits in relation to the proposed surgery was lodged within the defined benefits period, as were his applications for internal review and ACAT review. The Tribunal does not consider that the time limit on payment of defined benefits would fairly apply if the Respondent finds that the reviewable decision was incorrect, given that the Applicant met all applicable timeframes in pursuing his right to have this matter reviewed. The Tribunal therefore considers, on balance, that in the event of an error in the reviewable decision being established and accepted by the Respondent, the effect of agreeing to make payment for the proposed surgery would, rather than giving rise to an entitlement after expiry of the defined benefits period, be giving effect to an entitlement that had already accrued. The Tribunal does not consider that the provisions of the MAI Act expressly prevent the payment of benefits being backdated to the date of the reviewable decision if, having reconsidered the decision in accordance with the Tribunal’s orders, the Respondent were to conclude that, in light of additional information that should have been obtained at the date of the 19 reviewable decision, a different decision should have been made.

19 See Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Conclusion

31. Section 193 of the MAI Act provides that an applicant for defined benefits may seek ACAT review of a reviewable decision ‘on a question of law or fact’. As set out above, this provision limits the Tribunal’s role in this case to consideration of whether the Respondent’s decision on internal review was affected by an error of fact or law, sufficiently material that the decision 20 should be set aside. The Applicant bears the burden of establishing that there was an error in the reviewable decision.

32. The Applicant contends that there were inconsistencies in the medical reports relied upon by the Respondent which necessitated further enquiries on its part, and that it should have placed greater emphasis on, or conducted additional enquiries in relation to the recommendation of his treating practitioner, Dr Damiani. The Respondent refutes these claims, arguing that the conclusions reached were reasonably open to the officer who conducted the internal review, based on the medical reports obtained.

33. The Tribunal finds that the reviewable decision was flawed in that, in refusing payment for the proposed treatment, the Respondent failed to undertake enquiries that were reasonably necessary to make an adequate determination of material facts. This was unfair to the Applicant. The failure to obtain adequate information upon which a decision could fairly and reliably be based, and the reliance on inferences drawn from insufficient medical information, is so compelling as to be characterised as an error in 21 fact or law. This is reflected in the order that the matter be remitted to the Respondent for further consideration and determination.

……………………………….. Senior Member D Kerslake Date of hearing: 10 April 2026 Applicant: In Person Solicitors for the Respondent: HWLE Lawyers

20 Neish v Insurance Australia Ltd [2022] ACAT 24, Williams v AAI Ltd [2021] ACAT 100, and Montgomery v Insurance Australia Ltd [2024] ACAT 60 21 See Bothe v AAI Ltd [2022] ACAT 12 at [65]-[66]