Shouldering the Onus of Proving a Non-Threshold Injury

In Brief

• A Claimant is not entitled to ongoing statutory benefits or common law damages where the only injuries sustained in the accident were threshold injuries.
• The onus is on the Claimant to demonstrate, on the balance of probabilities, that the accident caused them non-threshold injuries.
• Establishing causation involves both a medical determination (whether the alleged factor could cause or contribute to an injury) and an non-medical determination (whether the alleged fact did cause or contribute to the injury).

Facts

The Personal Injury Commission (PIC) published its decision in Toomey v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 209 on 26 April 2024.

The Claimant was injured in a motor accident on 19 November 2021. The accident was at low speed and the Claimant was wearing a seatbelt across her right shoulder.

In order to establish an ongoing entitlement to statutory benefits and an entitlement to common law damages, the Claimant had to establish that the accident caused non-threshold injuries within the meaning of Section 1.6 of the Motor Accident Injuries Act 2017 (MAIA).

By the time the dispute progressed to the Review Panel, the Claimant alleged two non-threshold injuries:

• A further tear to her already torn right supraspinatus.
• A SLAP tear in her left shoulder.

The Insurer, however, argued that these injuries were not caused by the November 2021 motor accident.

The Claimant’s pre-accident GP records demonstrated:

• Both right and left shoulder complaints before the November 2021 motor accident.
• A fall some nine months before the November 2021 motor accident.
• An attendance just eight (8) days before the November 2021 motor accident where the Claimant made complaints of shoulder pain.
• A scan of the right shoulder, before the accident, which revealed a partially torn supraspinatus.

Post-accident, the Claimant underwent five scans of her right shoulder which measured the right supraspinatus tear at a variety of lengths. The most recent scan revealed that the partial tear had progressed to a full thickness tear.

With regard to the left shoulder, the SLAP tear was first noted in August 2023, close to two years after the November 2021 motor accident.

A Medical Assessor certified that the accident only caused the Claimant threshold injuries. The Claimant successfully sought referral to the Review Panel.

Medical Review Panel’s Reasons

At the outset, the Review Panel confirmed that the onus was on the Claimant to satisfy the Panel, on the balance of probabilities, that the accident caused her non-threshold injuries (see Lynch v AAI Limited [2022] NSWPICMP 6 and Briggs v IAG Limited [2022] NSWSC 372).

The Review Panel determined that the Claimant did not discharge the onus, with respect to her right shoulder, for the following reasons:

• The Claimant’s pre-accident imaging reveals a partial supraspinatus tear in June 2021.
• The Claimant attended her GP just eight days before the November 2021 motor accident, complaining of right shoulder pain.
• Given her pre-existing shoulder problems, it is possible that a low-speed accident might cause a soft tissue injury or a further tear of already torn supraspinatus tendon.
• Whilst the partial tear in the Claimant’s right shoulder had progressed to a full thickness tear, this can occur either via additional traumatic events or through continued use of the upper limbs.
• The likelihood of a partial tear progressing to a full tear, without additional trauma, increases with age.
• On the balance of probabilities, the progress of the Claimant’s tear was not caused by the motor accident.
• The only injuries caused to the Claimant’s right shoulder were soft tissue injuries.

The Review Panel determined that the Claimant also failed to discharge the onus, with respect to her left shoulder, for the following reasons:

• A slow speed motor accident is unlikely to cause a SLAP lesion.
• SLAP lesions are more likely to be caused by a fall or by an accident involving more significant forces than a low-speed accident.
• The only injuries caused to the Claimant’s left shoulder were soft tissue injuries.

As such, the Review Panel affirmed the original Assessor’s finding that the accident only caused the Claimant threshold injuries.

Key Learnings

The decision in Toomey confirms, again, that the onus is on the Claimant to demonstrate, on the balance of probabilities, that the accident caused non-threshold injuries. If the Claimant fails to discharge that onus then a finding will be made that the Claimant only sustained threshold injuries and the Claimant will not be entitled to either ongoing statutory benefits or common law damages.

This case is a good example of how a thorough review of the available evidence is required to determine whether both the medical and the non-medical tests for causation are satisfied. That is, whether the accident could cause the alleged injury (medical test) and whether the accident did cause that injury (non-medical test).

When considering the right shoulder injury:

• Medical Test – The Review Panel accepted that, from a medical perspective, the accident could cause a progression of the Claimant’s pre-existing supraspinatus tear.
• Non-Medical Test – The Review Panel was not satisfied, however, that the accident did cause a progression of the tear.

The Review Panel adopted a similar approach when assessing the cause of the Claimant’s left shoulder SLAP lesion.

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

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner