Great Scott! Where does surgery fit on the injury continuum?

In Brief

• An `injury‘ is established where the motor accident is a necessary condition of the continuum of harm or disturbance suffered by the claimant.
• Surgery can, depending on the circumstances, fall within the continuum of harm caused by the accident.

Facts

The Personal Injury Commission (PIC) published its decision in Bridgefoot v Allianz Australia Insurance Limited [2024] NSWPICMP 194 on 2 August 2024.

The Claimant was injured in two accidents, approximately one year apart, in 2018 and 2019. On both occasions the Claimant was a passenger on a bus insured by the insurer.

The Claimant alleged that each accident caused an injury to her right knee which ultimately led to a total knee replacement (TKR).

At first instance, a PIC Medical Assessor determined that each accident caused the Claimant a soft tissue injury to her right knee, which was a threshold injury within the meaning of s 1.6 of the Motor Accident Injuries Act 2017 (MAIA).

The Claimant sought a review.

The Review Panel’s Reasons

The Medical Review Panel concluded that the 2019 MVA caused an above-threshold injury for the following reasons:

• The Claimant did not frame the TKR as a separate or consequential injury.
• Rather, the Claimant claimed that the second accident caused `a traumatic meniscal injury and traumatic patellar fracture resulting in a total knee replacement‘.
• The definition of injury‘ in s 1.4 of MAIA is circular in that an `injury‘ is defined to include `a bodily injury‘.
• Where a word in a statute is defined in terms of itself, the natural and ordinary meaning of the word should be used, subject to the context.
• An `injury‘ is established where the motor accident is a necessary condition of the continuum of harm or disturbance suffered.
• In this case, the TKR was a necessary condition of the continuum of harm caused by the 2019 MVA because it flowed from the aggravation of the underlying pre-existing arthritic condition in the Claimant’s right knee caused by that accident.
• The TKR was not a soft tissue injury and was, therefore, an above-threshold injury.

Key Learnings

Whilst the Medical Review Panel decision in Bridgefoot was published by the Commission on 2 August 2024, it was delivered to the parties on 8 March 2024. Importantly, this is after the Supreme Court’s decision in Mandoukos but before the Court of Appeal decision in that matter.

It is questionable whether the Review Panel would have come to the same conclusion in this dispute had it been armed with the Court of Appeal’s decision.

In obiter remarks at [99], the Court of Appeal stated (emphasis added):

“The foraminotomy procedure occurred some 18 months after the motor accident. It involved a mechanism, consensual surgical removal of bone, entirely separate from the impact of the motor accident. That is so even though it was performed by reason of Mr Mandoukos’ symptoms resulting from the motor accident. It is also of a different character from an assault or impact upon the body consequent upon the forces of the motor accident. Ultimately, however, if Mr Mandoukos seeks referral of a medical dispute as to whether the foraminotomy procedure has the consequence that the cervical spine injury he sustained in the motor accident is a minor injury, that question can be assessed by a medical assessor.”

To date, a superior court has not yet delivered a binding precedent on whether – and in what circumstances – surgery might transform a below-threshold injury into an above-threshold injury.

Until a superior court precedent is delivered, however, the decision inBridgefoot adds to the collection of somewhat conflicting Review Panel decisions on this issue, which include Reed v Allianz Australia Insurance Ltd [2022] NSWPICMP 287,  Nazari v AAI Limited t/as GIO (No 2) [2023] NSWPICMP 62, Eftikhari v AAI Limited t/as AAMI [2023] NSWPICMP 93 and Saleh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 14, noting that no Review Panel decision holds any greater precedent value than any other Review Panel decision.

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.