In Brief
- Pursuant to s 1.6(2) of the Motor Accident Injuries Act 2017 (MAIA), "a complete or partial rupture of tendons, ligaments, menisci or cartilage" qualifies as a non-threshold physical injury, which entitles an Injured Person to ongoing statutory benefits beyond 52 weeks and common law damages (subject to the other requirements of the Act).
- Pursuant to cl 4(1) of the Motor Accident Injuries Regulation 2017 (MAIR), an injury to a spinal nerve root is a threshold injury unless the injury manifests in radiculopathy.
- An injury to a spinal disc which results in a complete or partial rupture of cartilage qualifies as a non-threshold injury even if there is no evidence of radiculopathy.
Facts
The Personal Injury Commission (PIC) published its decision in QBE Insurance (Australia) Limited v Azar [2024] NSWPICMP 701 on 25 October 2024.
The Claimant was injured in a motor accident on 24 May 2022 whilst driving on Sunnyholt Road, in Blacktown. His vehicle was struck from behind and propelled into the vehicle ahead of his.
The Insurer determined that the Claimant only sustained threshold injuries, as defined by s 1.6 of MAIA and s 1.4 of MAIR.
On Internal Review, the Insurer affirmed that the Claimant only sustained threshold injuries for the following reasons:
- The accident caused significant disc injuries at T6/7, T7/8 and T8/9.
- There was, however, no evidence of nerve compression or cord compression.
- There was no evidence of any fracture,
- There was no evidence of any complete or partial rupture of any ligaments, tendons, menisci or cartilage.
- There was no clinical evidence of any radiculopathy.
The Claimant referred the threshold injury dispute to the Commission for assessment.
The PIC Medical Assessor agreed that the accident caused large disc protrusions at T7/8 and T8/9 with nerve impingement manifesting in a band of sensory loss in the left thoracic region.
The Medical Assessor concluded that the Claimant's thoracic injury qualified as a non-threshold injury because there was an injury to the nerve.
The Insurer successfully applied to have the threshold injury dispute referred to the Review Panel.
The Review Panel's Decision
The Review Panel certified that the accident caused the Claimant a non-threshold injury for the following reasons:
- The evidence demonstrated large central posterior herniated discs at T7/8 and T8/9.
- The herniated discs involved a rupture of the fibrocartilage around the relevant discs.
- Given the presence of ruptured cartilage, the injury was a non-threshold injury, irrespective of whether the disc bulge resulted in radiculopathy.
Key Learnings
The decision in Azar is important because the Review Panel confirmed that a Claimant is not required to demonstrate an injury to a spinal nerve root, manifesting in radiculopathy, if the damage to the disc results in a complete or partial rupture of the cartilage around the relevant disc.
In coming to this conclusion, the Review Panel specifically applied the Supreme Court decision in Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014.
We discussed the decision in Momand in episode 140 of The Proper Lookout Podcastseries, which can be accessed by clicking the link here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
