Helen Huang
Special Counsel
CTP Insurance, Insurance
Traumatic brain injury or just psychological injury?
28 January, 2025
In brief
- A Claimant is not entitled to ongoing statutory benefits or common law damages if the only injuries they sustain in a motor accident are threshold injuries.
- Section 1.6 of the Motor Accident Injuries Act 2017 (MAIA) provides that a “soft tissue injury” is a “threshold injury“.
Facts
The Personal Injury Commission (PIC) published its decision in Hajipavlou v Allianz Australia Insurance Limited [2025] NSWPICMP 20 on 22 January 2025.
The Claimant was involved in a motor accident on 17 February 2019 when she was travelling as a passenger in a vehicle, which was subsequently T-boned by the Insured vehicle.
The Claimant alleged a traumatic brain injury, together with injuries her cervical spine, left arm, right arm and chest.
A PIC Medical Assessor found that the physical injuries the Claimant sustained in the motor accident had completely resolved. The Medical Assessor found, however, that the accident caused a mild traumatic brain injury resulting in 5% whole person impairment. The assessment was based on emotional and behaviour impairments plausibly related to her brain injury.
The Claimant sought a review of the medical assessment.
The Review Panel’s decision
The Review Panel determined there was no evidence to depart from the approach taken with respect to the physical injuries and agreed with the PIC Medical Assessor that the Claimant’s soft tissue injuries had resolved.
The Review Panel was not satisfied that the accident caused a traumatic brain injury for the following reasons:
- The Claimant’s Glascow Coma Score was 15/15 both at the scene of the accident and later at the hospital, a normal score.
- The Claimant did not undertake formal post-traumatic amnesia testing with the usual tools.
- The CT performed on 17 February 2019 was unremarkable.
- Based on paragraph 1.164 of the Motor Accident Guidelines (MAGs), no assessment of mental status impairment and emotional and behavioural impairment was warranted because there was no evidence of significant impact to the head or cerebral insult and no significant abnormality.
- There was abundant evidence of significant psychological symptoms reported by the Claimant before the accident and the symptoms the Claimant alleged, post-accident, were a continuation of those pre-existing psychological symptoms are did not arise from an organic brain injury.
The Review Panel determined the only injuries the Claimant sustained are soft tissue injuries, which are threshold injuries for the purpose of the Act. None of the injuries gave rise to any permanent impairment.
Why this case is important
This decision reminds us:
- To refer to and rely on the initial treating evidence to determine causation rather than relying on the Claimant’s self-reporting;
- To consider whether there are any pre-existing complaints which arose before the accident which may be attributable to the Claimant’s current reporting; and
- The need for medical assessors to consider and apply the Guidelines in coming to their determination of whether the subject accident was the cause of the claimed injury.
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.
