If you are injured in a motor vehicle accident and it was not your fault, the CTP insurer must fund rehabilitation services. These include surgeries, physio, but can also include other things like temporary home modifications. This means you don’t have to pay for these costs upfront out of your own pocket while you wait for the claim to be settled.
But what if the CTP insurer refuses to pay simply because they don’t agree that the rehabilitation services are needed? This is exactly the issue which the District Court decided in the case of Simmons v QBE Insurance.
Facts
Ms Simmons was injured in a motor vehicle accident. She was diagnosed with foraminal stenosis at the C5/6 level. This is basically nerve root compression. She suffered symptoms of radiculopathy which is pain down the arm caused by the compression of the nerve root.
Her treating doctors first tried nerve root block injections which provided temporary pain relief for about three months.
Subsequently, Ms Simmons’ treating surgeon recommended surgery. The estimated cost was $45,000. The CTP insurer refused to pay.
Medical evidence
Ms Simmons’ treating surgeon as well as an orthopaedic surgeon whom she engaged both said that there was clinical evidence of radiculopathy. They both stated that Ms Simmons reacted well to nerve block injections. They suggested that these considerations supported the proposed surgery.
By contrast, the CTP insurer obtained a report from a neurosurgeon, a separate report from an orthopaedic surgeon, and a further report from a psychiatrist. The neurosurgeon and the orthopaedic surgeon both stated that there was no objective evidence of radiculopathy. They essentially both concluded that the proposed surgery would only serve to aggravate Ms Simmons’ pre-existing degenerative spinal disorder. In addition, the psychiatrist stated that if the outcome of the surgery was adverse, this would lead to further negative psychiatric consequences.
Payment of rehabilitation expenses: CTP insurer’s obligation under the law
The legislation which governs this area is the Motor Accident Insurance Act 1994. Section 51 states that if the insurer admits liability for the accident, and if the claimant requests, then the insurer must make reasonable and appropriate rehabilitation services available. In other words, they have to pay the cost of it.
The scheme of the legislation is that it is the claimant’s responsibility to develop a rehabilitation plan – obviously in consultation with their doctor. The insurer’s responsibility is to facilitate this by paying for it.
The fact that the CTP insurer and its doctors have different views on the proper ways in which rehabilitation should be undertaken doesn’t matter – unless the CTP insurer’s experts provide evidence which reflects on the reasonableness and appropriateness of rehabilitation which the claimant proposes to undertake, the CTP insurer must pay the cost of the rehabilitation services.
This also means that if the claimant’s experts produce one opinion and the CTP insurer’s experts produce the contrary opinion, it does not follow that the contrary opinion must prevail.
Findings in this case
Ms Simmons’ experts supported surgery, and provided detailed reports outlining the basis for their conclusions.
Additionally, the Court considered the CTP insurer’s experts non-persuasive.
Moreover, although the Court acknowledged that there was a risk that an adverse surgical outcome would have negative psychological implications for Ms Simmons, the Court considered this as being a downside risk which must be weighed against the upside benefit that the surgery may go well. The upside benefit was that a positive surgical outcome was likely to completely relieve or substantially reduce Ms Simmons’ symptoms.
Having regard to all of these issues, the Court ordered the CTP insurer to pay for the $45,000 surgery.
Read the full case here: Simmons -v- QBE
