Helen Huang
Special Counsel
CTP Insurance, Insurance
I injured my back and needed surgery! Do I have an above-threshold injury?
12 August, 2024
In Brief
- If a Claimant’s injuries are only threshold injuries, they are not entitled to claim either statutory benefits beyond 52 weeks, or common law damages.
- 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
On 9 August 2024, the Personal Injury Commission (PIC) published its decision in Kennedy v Allianz Australia Insurance Limited [2024] NSWPICMP 498.
The Claimant was involved in a motor vehicle accident on 11 July 2019. He alleges sustaining injuries to his cervical spine and lumbar spine which required discectomy surgery.
The Claimant argued the effect of having surgery means he sustained an above-threshold injury relying upon the decision of Reed v Allianz Insurance Limited [2022] NSWPICMP 287.
At first instance, the PIC Medical Assessor determined the Claimant’s injuries were threshold injuries within the meaning of [s%201.6]s 1.6 the Motor Accidents Injuries Act 2017 (MAIA).
The Claimant sought a review.
Relevant Provisions
A threshold injury is defined under s 1.6 of MAIA as a soft tissue injury.
Section 1.6(2) of MAIA defines a “soft tissue injury” to be an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial members), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
Section 1.6(4) of MAIA provides that regulations may be made include or exclude specific injuries from the definition of “threshold injury“. Clause 4(1) of the Motor Accident Injuries Regulation (MAIR) states that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Clause 5.9 of Motor Accident Guidelines (MAGs) then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
In summary, if the Claimant sustains a spinal nerve injury then this is a threshold injury unless the particular nerve injury manifests in two of the five signs of radiculopathy.
Clause 5.8 of the MAGs defines radiculopathy as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
- loss or asymmetry of reflexes …;
- positive sciatic nerve root tension signs …;
- muscle atrophy and/or decreased limb circumference …;
- muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
- reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
The Review Panel’s Reasons
The Medical Review Panel concluded the Claimant’s injuries were threshold injuries for the following reasons:
- The accident did not cause a lumbar spine injury because:
- The evidence demonstrates the Claimant had episodes of lumbar spine pain leading up to the accident despite the Claimant stating he had completely recovered from his previous 1998 back injury.
- There was no consistent history of complaints of lumbar spine pain in the Claimant’s treating records following the accident, until nine months after the accident.
- The accident did cause a cervical spine injury because although there was a gap of five days between the accident and the first consultation with the GP, the Panel accepted the Claimant’s explanation that he was reluctant to lodge a workers compensation claim so soon after obtaining a traineeship.
- The injury to the cervical spine is a soft tissue injury on a background of degenerative changes based on the radiological findings.
- The Panel was not satisfied the Claimant demonstrated two or more of the five signs of radiculopathy on examination.
Key Learnings
This decision stands alone because the Panel did not accept causation of the lumbar spine injury and did not engage with the decision of Reed v Allianz Insurance Limited [2022] NSWPICMP 287.
However, if the Review Panel did accept causation, it will be interesting to see whether this Panel would have agreed with any of the other conflicting Review Panel decisions on this issue, which include 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.
As discussed in last week’s case note of Great Scott! Where does surgery fit on the injury continuum? – McCabes Lawyers – until a superior court has delivered a binding precedent on whether – and in what circumstances – surgery might transform a below-threshold injury into an above-threshold injury, no Review Panel decision holds any greater precedent value than any other Review Panel decision.
Each matter will be determined on its own merits at the time of assessment before the constituted Review Panel.
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 Special Counsel Helen Huang today.
