In Brief
- If a Claimant's contemporaneous medical records demonstrate injury to a spinal nerve root manifesting in two signs of radiculopathy, then the Claimant demonstrates a non-threshold injury, even if there are no signs of radiculopathy at the time of the Claimant's PIC medical assessment.
- If an accident causes a pre-existing tear to become longer, then the additional tearing qualifies as a non-threshold injury.
Facts
On 18 October 2024, the Personal Injury Commission published its decision in Insurance Australia Limited t/as NRMA Insurance v Maraseh [2024] NSWPICMP 693.
The Claimant was involved in a rear end collision accident on 10 March 2023. She alleged sustaining injuries to her cervical spine, lumbar spine and right shoulder.
At first instance, the PIC Medical Assessor determined the Claimant sustained non-threshold injuries.
The Insurer sought a review.
The Review Panel Reasons
The Review Panel determined the Claimant sustained threshold injuries for following reasons:
- The Claimant did not demonstrate any signs of radiculopathy to the cervical spine or lumbar spine either at the re-examination or, based on the GP and physiotherapy records, at any time following the motor vehicle accident.
- The Panel did not accept the motor vehicle accident caused a
further injury to her right shoulder because:
- The claim form did not mention a right shoulder injury.
- The Claimant was unable to recall any increase in pain to her right shoulder until at least two weeks after the accident.
- The Panel expected if the motor accident caused a right shoulder injury, the Claimant would immediately complain of pain to her right shoulder.
- The MRI undertaken post-accident revealed a 7mm long tear which is the same size as the tear in the pre-accident ultrasound imaging.
As a result, the Claimant's statutory benefits ceased at 52 weeks and the Claimant is not entitled to recover common law damages.
Key Learnings
Whilst the decision in Maraseh was decided on the merits, it is interesting for two reasons:
- The Review Panel specifically applied the decision of David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227. In David, the Medical Review Panel decided that a Claimant demonstrated a non-threshold injury if the medical evidence demonstrated the presence of such an injury, caused by the motor accident, at some time between the accident and the medical assessment, even if the Claimant had recovered by the time of their medical assessment. The Review Panel in this matter went on a search for radiculopathy in the contemporaneous treating records but was unable to locate any evidence of radiculopathy.
- Without citing it, the Review Panel applied AAI Ltd t/as AAMI v Shamsirad [2022] NSWPICMP 284. The Review Panel recognised that if the motor vehicle accident increased the length of a pre-existing tear in the right shoulder, then the additional tearing, caused by the accident, would qualify as an above threshold injury. The Review Panel, however, did not find any evidence of any additional tear.
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