Review Panel Finds Aggravated Radiculopathy is a Non-Threshold Injury

In Brief

• Pursuant to clause 4(1) of the Motor Accident Injuries Regulation 2017, an injury to a spinal nerve root that manifests in radiculopathy is a non-threshold injury.
• Increased or new signs of radiculopathy suggests a new injury causing compression of the spinal nerve root or additional compression of an already compressed spinal nerve root.
• Increased or new signs of radiculopathy are sufficient to demonstrate a non-threshold injury.

Facts

The decision in AAI Limited t/as GIO v Lee [2026] NSWPICMP 422 was delivered on 17 June 2026 and published on 2 July 2026.

The Claimant was involved in a motor accident on 9 April 2024. He proceeded to make a claim for statutory benefits. A dispute arose, however, over whether the Claimant only sustained threshold injuries.

The Claimant accepted that he suffered from intermittent right C6 radiculopathy before his motor accident. He said, however, that it always recovered with conservative treatment and he was not suffering from any radiculopathy immediately before the MVA. He alleged that his right C6 radiculopathy symptoms recurred, with greater intensity, following the motor accident and that his radiculopathy was now resistant to treatment.

The Insurer argued that the Claimant suffered from radiculopathy before and after his accident and that the accident had not caused any new injury.

The primary Medical Assessor determined that the Claimant sustained an aggravation of prior disc disease, particularly in relation to C5/6, with overt C6 radiculopathy. The primary Medical Assessor determined that this was not a threshold injury.

The Insurer successfully sought referral to the Review Panel.

The Review Panel’s Decision

The Review Panel agreed that the Claimant had sustained a non-threshold injury for the following reasons:

• The evidence established that there was a clear escalating pattern of symptoms, post-accident, and a new symptom in the form of muscle atrophy.
• The escalating pattern of symptoms indicated that the motor accident had caused further injury to the Claimant’s C6 nerve root.

The Insurer argued that to demonstrate a non-threshold injury, the Claimant had to demonstrate a new “distinct physical injury” and that an aggravation or recurrence of a previous injury is not enough.

The Review Panel rejected the Insurer’s argument for the following reasons:

• The C6 nerve root is about 20 mm long and about 6 mm wide. A disc bulge can affect one side of the nerve root and an osteophyte can affect the other side of the nerve root.
• Either a new injury or an aggravation of an existing injury could further compress a section of the nerve root which is already partially compressed or the compression could affect a slightly different section of nerve root.
• Both the emergence of new signs of radiculopathy or the worsening of existing signs indicate that there has either been a new injury to a different part of the nerve root or there has been an aggravation causing additional compression of the same part of the nerve root.
• A worsening of existing signs of radiculopathy is sufficient to demonstrate a non-threshold injury.

Why This Case is Important

The decision in Lee confirms that a claimant demonstrates a non-threshold injury if a pre-existing condition has been aggravated.

In prior PIC decisions the Review Panel has accepted that:

• The lengthening of a pre-existing annular tear is a non-threshold injury, to the extent of the new length of tearing. Our Case Note can be found here.
• Aggravation (even temporary) of a pre-existing PTSD is a non-threshold injury, to the extent of the increased symptoms. Our Case Note can be found here.

This decision appears to simply apply the same thinking to the aggravation of pre-existing radiculopathy.