Key Takeaways

This decision from the NSW Personal Injury Commission (PIC) addresses whether surgery itself can constitute an “injury” under s1.6 of the Motor Accident Injuries Act 2017 (the Act).

The claimant sustained a soft tissue injury to his neck in a motor vehicle accident. A soft tissue injury is a ‘threshold’ injury under the Act, and a person is not entitled to recovered common law damages if they have only suffered threshold injuries.

He argued that subsequent cervical spine surgery (a C5/6 foraminotomy, involving the removal of a segment of bone) recommended and carried out by his treating specialist amounted to a new non-threshold injury under the Act. The Review Panel held that therapeutic surgery improving symptoms does not, by itself, create a new injury, but it accepted there are circumstances where it may.

Facts of the Case

The claimant was involved in a motor vehicle accident on 8 January 2019. The claimant had a history of cervical spine symptoms following an earlier motor vehicle accident in 2010, but the subject accident was found to have aggravated a pre-existing degenerative condition. The insurer determined that the injury was threshold injury, meaning the claimant had no right to recovery any damages.

The claimant applied for an assessment by the medical division of the PIC, arguing he had a non-threshold injury. The initial certificate by Assessor Wallace, finding a threshold injury, was confirmed on review in April 2020.

At the suggestion of his treating specialist, the claimant then underwent cervical spine surgery (foraminotomy) on 1 July 2020.

The claimant then sought further assessment by the medical division of the PIC, arguing that as a result of the surgery, he had suffered a non-threshold injury.

Assessor Assem issued a certificate (6 June 2022) certifying that the claimant’s cervical spine injury was a threshold injury. The claimant’s review application was rejected by the President’s Delegate, and subsequent judicial review and appeal to the Supreme Court and Court of Appeal were both dismissed, Chen J of the Supreme Court observing that an argument that the cervical spine surgery resulted in the claimant suffering a new, non-threshold injury was not put to the Medical Assessor for the purposes of the medical dispute, and so could not be relied on to impugn the decision under review.

Taking that hint, the claimant then lodged yet another application for medical assessment, specifically regarding alleged injury to bone and facet joint due to cervical foraminotomy surgery, and Medical Assessor Gothelf issued a certificate (15 February 2025) certifying that same was a non-threshold injury under the Act.

The insurer’s application for review was accepted by the Delegate and referred to another Review Panel, this time comprising of Member Medland and Medical Assessors Cameron and Barnsley.

Issues

The dispute centred on whether the surgery itself constituted an “injury” for the purposes of the Act, and if so, whether it was a threshold injury as defined by s1.6 of the Act.

Decision

The Review Panel found that the motor accident materially contributed to the need for the cervical spine surgery. Conservative treatment options had failed, and surgery was reasonable and necessary. However, and critically, the evidence showed that the surgery improved the claimant’s symptoms rather than causing a detrimental impact or unintentional physiological change.

The Panel determined that surgery performed with therapeutic intent and resulting in improvement of symptoms does not, of itself, constitute an “injury” under the Act – the original tortfeasor may still be liable for consequences of medical treatment if it causes further injury, but not every consequence of treatment is an injury under the Act.

Surgery such that the claimant had undergone was therapeutic with the explicit aim of reducing or removing a disease, symptom of loss of function, and had been consented to by the claimant. Such surgery involves predictable, controlled disturbances to bodily tissue with the specific intention of avoiding adverse effects of that disturbance. It did, in fact, result in an improvement in the claimant’s pain and function, even if not compete resolution of symptoms.

Referring to some parts of the judgment of the NSW Court of Appeal in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71, [99], as well as the decision of the High Court in the workers compensation case of Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, the Panel considered the common law position was that, in the absence of evidence that surgery caused an identifiable detrimental impact upon a claimant’s symptoms or functioning, it is doubtful that the surgery could be considered to constitute an injury for the purposes of the Act.

The Panel also observed that its conclusions were consistent with the findings of Chen J in Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC 1023 at [93]:

‘…ordinarily, an accident-related injury creates a need for treatment, but that treatment is not an “injury”, nor a “consequential injury”’.

The Panel accepted that surgery intended to improve symptoms and function may not do always so, and if symptoms and function worsen, there may be a physiological response, which could constitute a new injury, but that had not occurred in this case.

As the consequential surgery was not considered an injury, it was unnecessary to determine whether or not it was a threshold injury. However, the Panel noted that if the removal of bone during surgery were considered an injury, it would be a non-threshold injury, as bone removal falls outside the definition of a soft tissue injury under s1.6 of the Act.

Further information / assistance regarding the issues raised in this article is available from the author, Judith Waldock, Partner, Michelle Gattin, Lawyer, or your usual contact at Moray & Agnew.