When must the claimant demonstrate a non-threshold injury?

In Brief

• The “medical practitioners” referred to in clause 5.5 of the Motor Accident Guidelines (MAGs) are PIC Medical Assessors.
• The soft tissue injury assessment contemplated by clauses 5.7 to 5.9 of the MAGs is, accordingly, to be undertaken by the PIC Medical Assessors.
• The soft tissue injury assessment is not any assessment undertaken by a suitably qualified medical practitioner at any stage in the medical dispute’s history.

Facts

The Personal Injury Commission (PIC) published its decision in Merhi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 316 on 2 August 2024.

The Claimant was involved in a motor accident on 6 January 2022, when her stationary vehicle was rear-ended by the insured vehicle.

The Insurer denied liability for ongoing statutory benefits on the grounds that the only injuries sustained in the accident were threshold injuries. That determination was confirmed on internal review.

At first instance, a PIC Medical Assessor determined that the Claimant sustained soft tissue injuries to her cervical spine, lumbar spine and both shoulders. The Medical Assessor concluded that the injuries had largely resolved with conservative treatment. Investigations revealed no neural compression or disc rupture.

The Claimant successfully sought a review.

Relevant Provisions

Clause 5.5 of the Motor Accident Guidelines (MAGs) provides that:

“A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.“

Clause 5.6 of the MAGs provide:

The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

a) a comprehensive accurate history, including pre-accident history and pre-existing conditions

b) a review of all relevant records available at the assessment

c) a comprehensive description of the injured person’s current symptoms

d) a careful and thorough physical and/or psychological examination

e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.

The Review Panel’s Reasons

The Medical Review Panel concluded that the Claimant did not demonstrate an above-threshold injury for the following reasons.

• Schedule 2, cl 2(e) of MAIA tasks a PIC Medical Assessor / PIC Medical Review Panel to resolve a medical dispute about whether an injury caused by the motor accident is a threshold injury or not.
• The Review Panel ultimately stands in the shoes of the insurer to resolve the threshold injury dispute.
• The Review Panel’s assessment – like the Insurer’s original assessment – is undertaken afresh.
• The relevant clinical assessment undertaken by a medical practitioner for the purposes of clause 5.5 of the MAGs is, therefore, that of the Panel medical assessors.
• The soft tissue injury assessment contemplated by clauses 5.7 to 5.9 of the MAGs is, accordingly, to be undertaken by the Panel medical assessors.
• The soft tissue injury assessment is not any assessment undertaken by a suitably qualified medical practitioner at any stage in the medical dispute’s history.
• Based on the Review Panel’s examination findings, there were no clinical signs of radiculopathy evidence when the injuries were assessed.

Key Learnings

The Review Panel decision in Merhi appears to question whether the earlier Review Panel decision in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 was correctly decided.

The Review Panel in David found, in general terms, that a Claimant may demonstrate an above-threshold injury if, for example, a qualified medical practitioner found signs of radiculopathy at any time between the accident and the day of assessment. It didn’t matter that the symptoms had resolved by the time of the PIC medical assessment.

The Review Panel in Merhi, however, concluded that the threshold injury dispute must be resolved by a PIC Medical Assessor – or PIC Review Panel – and not by some other qualified medical practitioner, with the implication that the criteria for demonstrating an above-threshold injury must be present on the day of the PIC medical assessment.

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 Principal, Peter Hunt, today.