What caused the surgery? The minor motor vehicle accident or being tackled by your grandchild?

In Brief

• A threshold injury is defined under section 1.6 of the Motor Accidents Injuries Act 2017 (MAIA).
• Section 1.6(1) of MAIA states a threshold injury is a soft tissue injury or a psychological or psychiatric injury that is not a recognised psychiatric illness.
• A “soft tissue injury” is defined in section 1.6(2) to be an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial members), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
• Part 5 of the Motor Accident Guidelines is made pursuant to section 10.2 of the MAIA and contains the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAIA.
• If a Claimant’s injuries are only threshold injuries, they are not entitled to claim either statutory benefits beyond 52 weeks, or common law damages.

Facts

On 31 May 2024, the Personal Injury Commission published its decision in Insurance Australia Limited t/as NRMA Insurance v Delaney [2024] NSWPICMP 298.

The Claimant was involved a motor vehicle accident on 18 June 2018.

The Claimant alleges sustaining a cervical spine injury as a result of the accident.

On 8 December 2018, the Claimant developed new symptoms in his cervical spine after being tackled when playing with his grandchild.

On 17 June 2019, the Claimant underwent a cervical spine fusion surgery.

The Claimant asserted he sustained an above threshold injury and that motor vehicle accident caused the need for surgery.

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

The original Medical Assessor determined the Claimant sustained a soft tissue injury to the cervical spine which is a threshold injury for the purposes of the Act.

The original Medical Assessor determined the Claimant did not suffer any direct injury to either shoulder or arm. Rather, the symptoms and signs in the Claimant’s bilateral shoulders and arms represented radicular pain from the cervical spine injury.

The original Medical Assessor determined the C5/C6 fusion was not related to the accident injuries and not reasonable and necessary in the circumstances.

The Claimant lodged a review application.

The President’s Delegate was satisfied there was reasonable cause to suspect the assessment was incorrect in a material respect and the matter was referred to the Review Panel.

The Review Panel

The Review Panel made specific reference to clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines, which determine whether the cervical spine injury will be assessed as a threshold injury:

“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.

5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment”.

(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)

(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”

The Review Panel also applied the test of causation which is set out in Part 6 of Motor Accident Guidelines and applied the set out in Briggs v IAG Limited Trading as NRMA Insurance[2022] NSWSC 372.

The Review Panel made the following findings:

• The Claimant developed cervical spine pain following the accident. The Claimant reported it was right sided cervical spine pain which spread into the right shoulder from the right side of the cervical spine. But the Claimant reported steady improvement in severity and frequency of symptoms over the next few months after the accident.
• The Claimant was able to return to part-time work on restricted duties before turning to normal duties on 11 October 2018.
• The Claimant reported feeling a click and immediately experiencing very sharp right-sided cervical spine pain with numbness, pins and needles after being tackled by his grandchild at the subsequent incident on 8 December 2018.
• The Claimant reported to the Panel after that incident, he had a marked increase in his cervical spine complaints when compared to prior accident complaints and that incident had developed new symptoms of frequent pins and needles as well as numbness in the right arm.
• The Claimant reported ceasing work altogether following the subsequent incident.
• The Claimant reported he underwent cervical spine fusion and did not have much benefit.
• The Panel referred to the Claimant’s significant degenerative changes which were identified in the CT scan taken post-accident on 18 June 2018.
• The Panel referred to the subsequent MRI scan taken on 19 June 2018 which reported broad based disc protrusion at C5/C6 and C6/C7 which was reported by the radiologist to be degenerative. The Panel also referred to the absence of any soft tissue oedema because the “significance of this is that an acute soft tissue or disc injury would typically be accompanied by oedema on MRI”.
• The Panel referred to a MRI taken on 19 December 2018 (after the subsequent incident) which demonstrated quite significant right-sided foraminal stenosis due to disc protrusion, endplate osteophytosis at C5/C6, moderate left-sided foraminal encroachment due to the C5/6 and C6/C7 levels.
• The Panel determined the accident was unlikely to cause the disc prolapse that comprised the C6 nerve but not impossible because the accident was low impact and there was minimal damage to the vehicle.
• The Panel then determined whether the accident did cause the C6 nerve compromise which would in turn be caused by the C5/6 disc bulge and the Panel determined this was not the cause because the first MRI scan did not have evidence of an oedema.
• On the balance of probabilities, the Panel determined the motor accident did not cause the C6 radiculopathy or even the non-verifiable C6 radicular symptoms.
• The Panel went further and determined the subsequent incident was responsible for these symptoms.
• In respect to the left and right shoulder injuries, the Panel accepts the Claimant may have sustained a soft tissue injury, secondary to the soft tissue injury sustained to the cervical spine, in accordance with the Nguyen principles, which is therefore a threshold injury.

The Review Panel confirmed the original Medical Assessor’s Certificate that the accident caused a soft tissue injury to the Claimant’s cervical spine and therefore is a threshold injury for the purposes of the Act.

Key Learnings

This decision demonstrates the importance of MRI scans taken immediately after the accident and after any subsequent incident because the difference in pathology assists in determining causation between the two events.

This decision also demonstrates the importance of oedema, or the absence of oedema, on an MRI scan. The Review Panel made it plan that any acute soft tissue or disc injury would typically be accompanied by oedema on a MRI scan.

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.

Additional McCabes Resources

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