Torn – Is a Disc Herniation a Non-Threshold Injury Even Without Radiculopathy?

In Brief

• Section 1.6(2) of the Motor Accident Injuries Act 2017 (MAIA) provides that “a complete or partial rupture of tendons, ligaments, menisci or cartilage” is not a soft tissue injury and is, therefore, not a threshold injury.
• A disc herniation can be a non-threshold injury because it involves tearing of cartilage given that the intervertebral discs are cartilaginous structures..

Facts

The Personal Injury Commission (PIC) published its decision in Farsad v QBE Insurance (Australia) Limited [2025] NSWPICMP 311 on 16 May 2025.

The Claimant was involved in a motor accident on 27 July 2023 and alleged multiple injuries, including to her lumbar spine.

The matter proceeded to the Commission for a threshold injury dispute.

The original Medical Assessor determined all of the injuries were threshold injuries for the purposes of the Act. In particular, the original Medical Assessor determined the accident did not aggravate the Claimant’s pre-existing L4/5 disc pathology for the following reasons:

• No lower lumbar symptoms were highlighted during the initial hospital consultation.
• Investigations of the lumber spine took place one-year post-accident.
• The Claimant’s L4/5 disc symptoms may have developed from unrelated accident inputs.
• There was no radiculopathy present.

The Claimant sought a review.

The Review Panel’s Determination

The Review Panel accepted the lumbar spine injury was an above-threshold injury, for the following reasons:

• The motor accident involved a significant side-impact collision, consistent with axial and torsional forces known to provoke or aggravate lumbar disc pathology.
• The Claimant had pre-existing pathology which made the Claimant vulnerable to aggravation from trauma such as a motor accident of this nature.
• The absence of lumbar spine complaints on the day of the hospital consultation was not significant because symptoms can develop over the following days
• The Claimant complained of left sacroiliac tenderness to her treating practitioner less than a week after the motor accident.
• The progression of the Claimant’s injury was consistent with a traumatic injury.
• The Panel accepted the MRI undertaken in August 2024, a year after the motor accident, revealed a left L4/5 disc protrusion with foraminal narrowing which correlated with the newly emerged symptoms of intermittent non-verifiable radicular complaints to that area.
• The original Medical Assessor did not adequately consider the anatomical distraction between pre-accident and post-accident symptoms, the new onset of radicular features and imaging that identified new structural changes.
• Based on the totality of the evidence including the contemporaneous symptom onset, anatomical symptom evolution, imaging findings and the biomechanical plausibility, the motor accident aggravated the disc pathology at L4/5 causing the herniation identified in the MRI scan.

The Review Panel confirmed intervertebral discs are cartilaginous structures. It follows that further tearing, causing herniation, is a partial rupture of cartilage and ligaments and is, therefore, an above-threshold injury for the purposes of the Act.

As a result, the Claimant was entitled to ongoing statutory benefits after 52 weeks and was entitled to pursue a common law damages claim.

Why This Case is Important

This decision demonstrates an injury to a spinal disc can be a non-threshold injury even before a Medical Assessor determines whether there are objective signs of radiculopathy as defined in the Guidelines. This is because the injury to the disc, itself, involves partial rupture of cartilage which is a non-threshold injury.

The Review Panel’s decision in Farsad is consistent with a prior Review Panel Decision in QBE v Azar which applied the Supreme Court decision of Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014.

If you have a query relating to any of the information in this case note please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.

Additional McCabes Resources

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