Key takeaways

The claimant was injured in a motor accident in NSW in 2019. He returned to live in South Korea shortly after the accident, where he then received various medical treatments via telehealth from Australian health practitioners and also sought approval for further telehealth treatments.

The insurer declined to pay for or approve the treatment, relying on s3.33 of the Motor Accident Injuries Act 2017 (‘MAIA’) which precludes an injured person who is not an Australian citizen or permanent resident from receiving statutory benefits for treatment and care that is provided outside Australia.

Issues in Dispute

The main issue was whether telehealth treatment is properly classified as treatment that is provided from the location it was given (i.e. within Australia via telehealth) or whether it is properly classified as treatment provided in the location it was received (i.e. in South Korea where the claimant was located). The claimant argued that the treatment should be considered to have been provided in Australia as this was the location of the health providers.

Judgment

Member and Merit Reviewer Cassidy (‘Member Cassidy’) found that, regardless of the nature or form of treatment, treatment involves one person giving treatment, and one person receiving it, and that it is the ‘…giving and receiving of treatment that constitutes the provision of treatment.’[1] She rejected the claimant’s various submissions about why a telehealth consultation should be considered as treatment provided where the practitioner is located and ultimately adopted the insurer’s position that ‘treatment is provided when and where it is received’[2] as opposed to when or where it is given, dispensed or dispatched.

In interpreting s3.33 Member Cassidy noted that, although one of the objects of the MAIA is to provide for early and appropriate treatment, there are other objects, in particular to keep premiums affordable and ensure that there is a measure of stability and predictability in the setting of premiums that also need to be considered. She considered that the purpose of s3.21, 3.33 and cl 2(r) of Schedule 2 ‘in the context of a compulsory scheme of insurance where affordability is recognised, is to provide limits to the statutory benefits that can be recovered to people residing overseas.’[3] It was her view that there is a clear legislative purpose and intent to restrict statutory benefits generally on the basis of where the claimant is residing and, in particular, restricting treatment and care benefits for injured persons who are not Australian citizens or residents and who are no longer living in Australia.[4]

It was also of some note that Member Cassidy found that she did not in fact have jurisdiction to consider the treatment dispute in so far as it related to the provision of future treatment. She referred to the decision in Obeid v AAI Limited t/as AAMI [5] and the subsequent amendment of schedule 2(2)(b) of the MAIA to enable medical assessors to determine disputes about treatment provided or ‘to be provided’ under s3.24. However, Member Cassidy noted that there has been no such amendment to the merit review matters in schedule 2(1)(r) of the MAIA, and that the clause is clearly worded to apply only to the determination of disputes concerning treatment that has already been provided. Nevertheless, Member Cassidy was able to determine the matter in the context of the treatment that had already been provided and her findings in respect to s 3.33 can be applied by insurers who may be considering treatment requests.

Implications

Although the situation may not arise frequently, the determination is topical given the increased movement of people internationally after a few years of pandemic shutdowns and the increase in telehealth treatment seen during that time. Member Cassidy’s determination provides clarity for insurers and claimants who are not Australian citizens or residents in similar circumstances. Essentially, treatment will not be payable pursuant to s 3.33 unless the claimant is physically in Australia when receiving the treatment.

It is also of some note that Member Cassidy was of the view that merit reviewers may only determine disputes for treatment that has already been provided, and therefore the Obeid decision continues to apply in that context.

Further information / assistance regarding the issues raised in this article is available from the authors, Erin Woodward, Senior Associate, and Freya Taylor, Law Graduate, or your usual contact at Moray & Agnew.

[1] Cha v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 64, [94] (emphasis added).

[2] Ibid, [96] (emphasis added).

[3] Ibid, [105]

[4] Ibid, [105].