On 25 January 2024, the Personal Injury Commission published its decision in Saleh v Insurance Australia Limited t/as NRMA Insurance  NSWPICMP 14.
The Claimant was injured in a motor accident on 22 October 2018.
A Personal Injury Commission Medical Assessor, however, found all the Claimant’s injuries were below-threshold based on the following reasoning:
The Claimant successfully applied for a referral to the Medical Review Panel.
The Medical Review Panel found an above-threshold injury, based on the following reasoning:
For these reasons, the Medical Review Panel revoked the Medical Assessor’s Certificate and certified that the Claimant sustained above-threshold injuries.
The decision in Saleh, adds to the debate over whether consequential surgery can transform a below-threshold injury into an above threshold injury.
Some earlier Commission decisions addressing this issue include:
Consider also the Supreme Court decision of Mandoukos v Allianz Australia Insurance Limited  NSWSC 1023 where Chen J found – in general terms – that there is no “presumption” that a below-threshold injury becomes an above-threshold injury merely because the Claimant undergoes surgery. His Honour reasoned that whether the surgery in a particular case could transform a below-threshold injury into an above-threshold injury “would, at least initially, be a question of fact” [Para 110].
In Saleh, the Medical Review Panel was satisfied that the surgery in this particular case involved ” damage by way of tearing to the claimant’s nerves, ligaments, muscle and bone” and this damage rendered the injury an above-threshold injury. See paragraphs 180 to 187 of the Medical Review Panel reasons.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Principal, Peter Hunt, today.
Additional McCabes Resources
On 19 January 2024, the Personal Injury Commission published its decision in RACQ Insurance v BRT  NSWPIC 672.