Sharpen your Pencil – the Scope of Medical Disputes

8 April, 2024

In Brief

  • The scope of a medical dispute is circumscribed by the arguments made by the parties to the medical dispute.
  • A PIC Medical Assessor is not required to trawl through the material provided by the parties in order to identify the scope of the dispute.
  • Consequential surgery will not necessarily transform a threshold injury into a non-threshold injury.


The Court of Appeal handed down its decision in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 on 4 April 2024.

The claimant was involved in a motor accident on 8 January 2019.

A minor injury (now “threshold injury”) dispute arose between the claimant and the insurer. A PIC Medical Assessor accepted that the motor accident caused an injury to the claimant’s cervical spine but found that the injury was a minor / threshold injury. That determination was confirmed by the Medical Review Panel.

On 1 July 2020, the claimant underwent a C5/6 foraminotomy. A notation in the operation note stated “R/O medial 1/3 facet”, which indicated that a segment of bone was removed during the procedure.

On 30 July 2021, the Claimant sought a further assessment of the minor / threshold injury dispute under s 7.24  of the Motor Accident Injuries Act 2017 (MAIA). The claimant argued that the need for the foraminotomy demonstrated that the cervical spine injury he sustained in the accident caused radiculopathy and rendered his injury non-minor / non-threshold. He, however, did not argue that the surgery itself, and the removal of some bone, transformed his injury into a non-minor / non-threshold injury.

On 14 June 2022, a PIC Medical Assessor concluded that the accident only caused a soft tissue injury to the claimant’s cervical spine and, therefore, his cervical spine injury was a minor / threshold injury.

On 12 July 2022, the claimant sought a review of the Medical Assessor’s minor / threshold injury determination pursuant to s 7.26 of MAIA. He subsequently lodged a late submission which argued that his surgery involved the removal of bone which necessarily rendered his injury non-minor / non-threshold. On 9 September 2022, a PIC Delegate declined to refer the dispute to the Review Panel.

The claimant sought judicial review both of the Medical Assessor’s decision and the Delegate’s decision. The decision was dismissed, at first instance, by Chen J. The claimant appealed.

The Court of Appeal Decision

The Court of Appeal dismissed the appeal – and, effectively, affirmed the minor / threshold injury determination – for the following reasons:

  • Section 7.17 of MAIA defines a “medical dispute” to be a dispute between a claimant and an insurer “about a medical assessment matter“.
  • The extent of the dispute between the claimant and the insurer is a question of fact based on evidence of the competing claims made by each party.
  • In this matter, the medical dispute referred to the Medical Assessor did not include any competing claims regarding the capacity of the foraminotomy, and the removal of bone, to render the claimant’s injuries non-minor / non-threshold.
  • Neither the PIC Medical Assessor nor the PIC Delegate were required to consider whether the removal of bone during the foraminotomy rendered the injury non-minor / non-threshold because that question was not part of the “medical dispute” formulated by the parties which was referred to the PIC for determination.

In addition, Stern JA, with whom Leeming and Kirk JJA agreed, made the following obiter remarks at [99] regarding whether the removal of bone renders the claimant’s injury non-minor / non-threshold, even if that issue had been part of the dispute referred by the parties to the PIC for resolution:

“In any event, even on the assumption that the removal of bone during the foraminotomy procedure could be a personal or bodily injury as defined in the Act (a question which, as set out at [54] above, it is unnecessary and inappropriate for this Court to determine) my provisional view is that that would be a “different” injury from the injury to Mr Mandoukos’ cervical spine sustained at the time of the motor accident. 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.”

Key Learnings

Medical Disputes

The Court of Appeal decision in Mandoukos is of critical importance to both insurers and claimants.

The decision makes it clear that the scope of any medical dispute referred to a PIC Medical Assessor is circumscribed, not by the Act, but by the arguments made by the parties. The Court of Appeal stated at [73] that:

“The phrase “about a medical assessment matter” in s 7.17 does not mean that the medical dispute necessarily encompasses the whole of the medical assessment matter. Rather, a dispute between a claimant and an insurer about a medical assessment matter, in s 7.17, is a reference to the dispute which has in fact arisen between a claimant and an insurer, albeit that, to fall within the definition of “medical dispute” in s 7.17, that dispute must relate to the subject matter of a medical assessment matter.”

At [74], the Court of Appeal specifically stated that a PIC Medical Assessor should not be expected “to trawl though all material provided to identify whether there is any matter which, albeit not complained of or identified as such by a claimant, could fall within the ambit of personal or bodily injury as defined by the Act“.

As such, the PIC Medical Assessor in this claim was not required to go outside the arguments made by the parties and to consider whether the Claimant’s surgery – which included removal of bone – rendered his injury non-minor / non-threshold. Instead, the Assessor was only required to determine whether the need for surgery indicated the presence of radiculopathy, which may have resulted in a non-minor / non-threshold injury finding because that was the scope of the dispute circumscribed by the parties’ submissions.

It follows that the parties to a medical dispute must ensure they make all arguments available to them when referring the dispute to the Commission. A failure to do so cannot be remedied by making the argument, for the first time, when applying for review.

Consequential Injury

Furthermore, the Court of Appeal, at [99], shared the doubts expressed by Chen J, at first instance, at [110], on the question of whether consequential surgery can transform a minor / threshold injury into a non-minor / non-threshold injury. Indeed, the Court of Appeal’s doubts are expressed in stronger terms.

Both the remarks made by the Court of Appeal and by Chen J were, however, obiter dictum.


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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