Peter Hunt
Principal
CTP Insurance, Insurance
Does Surgery Transform a Below-Threshold Injury into an Above-Threshold Injury?
29 January, 2024
In Brief
- To be entitled to ongoing statutory benefits and/or common law damages, a Claimant must demonstrate an above-threshold injury within the meaning of s 1.6 of the Motor Accident Injuries Act 2017 (MAIA) and cl 4 of the Motor Accident Injuries Regulation (MAIR).
- Depending on the facts of the case, consequential surgery can cause an above threshold injury if it involves tearing of nerves, ligaments, muscle or bone.
Facts
On 25 January 2024, the Personal Injury Commission published its decision in Saleh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 14.
The Claimant was injured in a motor accident on 22 October 2018.
The Claimant alleged that the accident caused above-threshold physical injuries as defined by s 1.6 of MAIA and cl 4 of MAIR.
A Personal Injury Commission Medical Assessor, however, found all the Claimant’s injuries were below-threshold based on the following reasoning:
- Causation of cervical spine fusion surgery and scarring – there was insufficient indication for the C4/5 and C5/6 anterior cervical discectomy and fusion which the Claimant underwent.
- Presence of radiculopathy in cervical and lumbar spine – there was insufficient evidence of radiculopathy and the only injuries to the spine were soft tissue in nature (absent the surgery).
- Focal tear in right shoulder – there was no evidence of a rotator cuff tear.
The Claimant successfully applied for a referral to the Medical Review Panel.
Medical Review Panel Findings
The Medical Review Panel found an above-threshold injury, based on the following reasoning:
- Causation of cervical spine surgery and scarring – the Claimant’s surgery and the scarring were causally related to the accident because the accident aggravated his pre-existing asymptomatic cervical spondylosis and led to the need for surgery after conservative treatment failed. The Claimant’s surgery involved cutting of the skin and tearing of the Claimant’s nerves, ligaments, muscle and bone. As such, the surgery rendered the injury to the cervical spine an above-threshold injury.
- Presence of radiculopathy in cervical and lumbar spine – the accident did not cause two signs of radiculopathy and the injuries to the cervical spine and lumbar spine were, therefore, below-threshold injuries.
- Focal tear in right shoulder – whilst an x-ray suggested a possible tear of the Claimant’s right shoulder, a subsequent MRI scan showed no tear. As such, any injury to the Claimant’s right shoulder was below-threshold.
For these reasons, the Medical Review Panel revoked the Medical Assessor’s Certificate and certified that the Claimant sustained above-threshold injuries.
Key Learnings
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:
- Reed v Allianz Australia Insurance Ltd [2022] NSWPICMP 287 (14 July 2022) – surgery rendered injury above-threshold because it involved cutting of skin, tendons, ligaments and cartilage.
- Nazari v AAI Limited t/as GIO (No 2) [2023] NSWPICMP 62 (19 January 2023) – a laceration to right eyebrow requiring surgery did not involve an injury to an organ.
- Eftikhari v AAI Limited t/as AAMI [2023] NSWPICMP 93 (16 March 2023) – the skin “supports or surrounds” other structures such as skeletal and muscular structures so an injury to the skin alone is a soft tissue injury. If, however, the injury involves the nerves, then the injury is above-threshold.
Consider also the Supreme Court decision of Mandoukos v Allianz Australia Insurance Limited [2023] 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.
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