The Mysterious Case of the Additional Lumbar Vertebra

In Brief

• Pursuant to the Motor Accident Injuries Act 2017 (MAIA) statutory scheme, a claimant is only entitled to ongoing statutory benefits and common law damages if the accident caused them a non-threshold injury.
• Pursuant to the definition in s 1.6 of MAIA, a soft tissue injury is a threshold injury, whereas a fracture is not.
  
  
• When viewing radiological reports, care must be taken to ensure that the affected vertebra has been correctly labelled.

Facts

On 23 February 2024, the Personal Injury Commission (PIC) published its decision in Verscio v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 57.

The Claimant was involved in a motor accident on 8 May 2020.

A threshold injury dispute unfolded, as follows:

• The claimant alleged that the accident caused a fracture at T11.
• The insurer concluded that the T11 fracture was pre-existing and that the accident only caused soft tissue injuries.
• The claimant was involved in a prior motor accident in 2014.
• Radiological reports from 2014 referred to wedge compression fractures at T10.
• Following the 2020 motor accident, radiology revealed wedge compression fractures at T11.
• A Personal Injury Commission (PIC) Medical Assessor determined that the accident only caused a soft tissue injuries superimposed upon prior T11 fractures.
• The claimant successfully sought a review of the Medical Assessor’s determination.

Review Panel’s Reasons

The Medical Review Panel confirmed the threshold injury determination for the following reasons:

• The Claimant is a rare member of the population who has an L6 vertebra.
• Given the additional lumbar spine vertebra, the radiological reports from 2014 incorrectly labelled the fractured vertebra T10 when, in fact, the affected vertebra was T11.
• When viewed side-by-side, it is clear that the T11 fractures observed post-accident are the same fractures observed in the 2014 films.
• The Medical Assessor correctly concluded that the T11 fractures were pre-existing and that the 2020 accident only caused soft tissue injuries to the thoracic spine.

Key Learnings

The decision in Verscio v IAG provides a useful reminder that, sometimes, all is not as it seems at first blush.

A casual reading of the pre-accident radiological reports might have resulted in an incorrect conclusion that the relevant fractures were at T10, as reported. However, on closer inspection, the pre-accident reports had mislabelled the affected vertebra. Once that error was corrected, it became apparent that the fractures revealed post-accident were the same fractures which were present pre-accident.

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 Peter Hunt today.

Additional McCabes Resources

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