CTP Insurance, Insurance

Threshold Injuries – the Importance of Clinical Expertise

4 November, 2024

In Brief

Radiological findings may be incidental – and unrelated to an accident – particularly for claimants above a certain age.
The absence of immediate complaints of pain following an accident may indicate that an acute injury was not caused by the accident.

Facts

On 1 November 2024, the Personal Injury Commission published its decision in Mourtada v Allianz Australia Insurance Limited [2024] NSWPICMP 726.

The Claimant was rear ended in a motor accident on 3 November 2022. He alleged sustaining injuries to his cervical spine, lumbar spine, left shoulder, right shoulder and right knee.

At first instance, the PIC Medical Assessor determined the Claimant only sustained threshold injuries.

The Claimant sought a review.

The Review Panel Reasons

The Review Panel agreed that the Claimant sustained threshold injuries for following reasons:

The Supreme Court confirmed in Adam Briggs v IAG Limited t/as NRMA Insurance [2024] NSWSC 3 that the onus was on the Claimant to establish, on the balance of probabilities, both that the accident could cause the injury in question (medical test) and that the accident did cause the injury (non-medical test).
The injuries to the Claimant’s cervical spine and lumbar spine did not manifest in any signs of radiculopathy. As such, the neck and back injuries met the definition of “soft tissue injuries” pursuant to s 1.6(2) of the Motor Accidents Injuries Act 2017.
The injury to the Claimant’s left shoulder was also a soft tissue injury because the labral tear identified in an MRI scan dated 9 May 2023 represented an incidental finding which was unrelated to the motor accident. The Review Panel reasoned as follows:
- The Claimant was in an age group where a labral tear may be an incidental finding.
- The acute pathology related to the AC joint and not the glenohumeral joint where the labral tear was located.
- It followed that, on the balance of probabilities, the labral tear disclosed on the MRI scan was an incidental finding and not caused by the accident.
The Claimant sustained a soft tissue injury to the right shoulder because the Claimant demonstrated full range of movement on re-examination.
The Claimant sustained a soft tissue aggravation of the underlying right knee condition because:
- The Claimant first complained of knee pain four weeks after the accident.
- The Panel determined if there had been any internal derangement of the right knee then the Claimant would have been in pain immediately after the accident.
- The MRI of the right knee most likely present progression of degenerative changes relating to the previous meniscectomy.

As a result, the Claimant’s statutory benefits ceased at 52 weeks and the Claimant is not entitled to pursue a common law damages claim.

Key Learnings

This decision is interesting because the Review Panel applied its clinical expertise in two ways:

The Review Panel recognised that, for people of a particular age, incidental findings may be disclosed on radiological scans.
The Review Panel recognised that, for certain acute injuries, the absence of immediate complaint may demonstrate that the injury was not caused by the 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 Special Counsel Helen Huang today.