Consequential Surgery

#20 – Consequential Surgery is not an “Injury” in the Absence of Harm

Decision

Allianz Australia Insurance Limited v Mandoukos [2025] NSWPICMP 844

Sixty-Second-Or-Less-Read

A motor accident causes a threshold injury to the Claimant’s cervical spine. The Claimant, however, subsequently undergoes cervical surgery which involves the removal of some bone.

Does the consequential surgery constitute a non-threshold injury?

In Allianz v Mandoukos, the Review Panel concluded that, in general terms, consequential surgery does not constitute an “injury“, as defined by s 1.4 of the Motor Accident Injuries Act 2017 in the absence of some detriment to the Claimant. In this dispute, the surgery was not an “injury” because the Claimant consented to the procedure and it resulted in a reduction of pain and an increase in function. The surgery was to the Claimant’s benefit rather than his detriment.

Principles

✅ A Claimant is not entitled to ongoing statutory benefits or common law damages if their only injuries are threshold injuries as defined by section 1.6 of the Motor Accident Injuries Act 2017 (MAIA).

✅ Physiological changes caused by consequential surgery cannot constitute an “injury”, as defined by section 1.4 of MAIA, in the absence of some detriment to the Claimant.

Facts

On 8 January 2019, the Claimant swerved to avoid a motor vehicle which made a turn in front of his vehicle and collided with a light post.

The accident caused a cervical strain and aggravation of pre-existing C5/6 degenerative disc disease.

The Claimant, however, subsequently underwent a C5/6 foraminotomy, which involved removing a segment of bone.

The primary Medical Assessor concluded that the consequential surgery resulted in injury to bone and the partial or complete rupture of ligaments and tendons. The primary Medical Assessor proceeded to certify that the injuries sustained during the consequential surgery were not threshold injuries.

The Insurer successfully sought referral of the threshold injury dispute to the Review Panel.

The Review Panel’s Reasons

The Review Panel accepted that the foraminotomy procedure was reasonable and necessary and caused by the injuries sustained in the motor accident.

The Review Panel, however, concluded that the changes to the Claimant’s body, caused by the surgery, did not constitute an “injury“, as defined in section 1.4 of MAIA, for the following reasons:

🟪 Section 1.4 of MAIA defines “injury” to mean “personal or bodily injury” before proceeding to include psychological injuries, pre-natal injuries and injuries to artificial members, aids and equipment.

🟪 The Court of Appeal made obiter comments in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 that it is doubtful that consequential surgery could constitute an “injury” in the absence of any detrimental impact on the Claimant’s symptoms or functioning.

🟪 Whilst clause 6.113 of the Motor Accident Guidelines provides that the effect of surgery is to be included in the assessment of permanent impairment, “impairment” and “injury” are not the same thing. “Impairment” is a consequence of “injury“.

🟪 The outcome might be different if the surgery is performed negligently or causes an additional injury. In this case, the surgery was performed competently and improved the Claimant’s symptoms.

The Review Panel, therefore, certified that the surgery did not constitute an “injury” as defined by s 1.4 of MAIA.

If followed that whether the surgery constituted a threshold injury or not did not arise.

Pete’s Perspective

The Scope of the Dispute

At the outset, it is critical to understand that the decision in Mandoukos is not about causation.

The Review Panel specifically accepted that the Claimant’s foraminotomy procedure was caused by the accident.

If the Claimant ultimately demonstrated a non-threshold injury, the defendant would be liable for the full consequences of the surgery in the normal way (absent grossly negligent medical treatment). Those consequences might include, depending on the evidence, an increased WPI assessment and additional economic loss.

The issue in dispute, in Mandoukos, however, related the statutory interpretation of the gateway provisions to ongoing statutory benefits and common law damages.

Namely, whether the Claimant’s surgery constituted an “injury” as defined by s 1.4 of the MAIA. This was critical to the Claimant’s entitlements because the Claimant could not demonstrate a non-threshold injury if the surgery did not even amount to an injury in the first place. And, without a non-threshold injury, the Claimant could not proceed through the statutory gateway and recover ongoing statutory benefits or any common law damages.

So, When Does a Physiological Change Constitute an “Injury”?

At paragraph 131 of its Reasons, the Review Panel helpfully set out indicia of physiological change which might constitute an “injury“:

🟪 The change was unintentional.

🟪 The change was caused by an external force outside the control of the affected person.

🟪 The change is neither planned nor deliberate.

🟪 The change would have an adverse effect on the individual.

🟪 A reasonably minded individual would not consent to the change.

In this dispute:

🟪 The Claimant’s decision to undergo the surgery was deliberate and considered.

🟪 The aim of the surgery was to provide relief to the Claimant’s cervical spine symptoms.

🟪 The surgery did, in fact, improve the Claimant’s pain and function.

What About Treatment Which Goes Wrong?

The Review Panel’s decision in Mandoukos deals with a case where the Claimant’s surgery went to plan.

The outcome is likely to be different if the surgery (or other treatment) does not go to plan and the Claimant suffers further harm, either because the existing injury is exacerbated or a new injury is caused.

There have been some recent Review Panel decisions which concluded that additional harm caused by consequential treatment can constitute a non-threshold injury.

🟪 In Gibbin v AAI Ltd t/as GIO [2025] NSWPICMP 523, the Claimant sustained a rotator cuff tear during a manipulation under anaesthetic procedure. The Review Panel found that the tear was a non-threshold injury caused by the motor accident. My Case Note on Gibbin can be found here.

🟪 In Allianz Australia Insurance Limited v Miles (No 3) [2025] NSWPICMP 565, the Claimant suffered leg weakness following a cortisone injection. The leg weakness caused a fall which caused a right rotator cuff tear. The Review Panel found that the rotator cuff tear was a non-threshold injury caused by the motor accident. My Case Note on Miles can be found here.

What distinguishes these decisions from Mandoukos is that the consequential treatment resulted in detriment to the Claimant. It followed, in each case, that the detrimental physiological change caused by the treatment constituted an “injury” as defined by s 1.4 of MAIA. In these two examples, the injuries in question – rotator cuff tears – fell outside the definition of “threshold injury” in s 1.6.

What About WPI Assessments?

The decision in Mandoukos only relates to whether consequential surgery constitutes an “injury” pursuant to the definition in s 1.4 of MAIA.

As the Review Panel correctly pointed out, when it comes to the assessment of permanent impairment, clause 6.113 of the Motor Accident Guidelines provides that the effect of surgery is to be included in the assessment.

So, this is (yet another) potential anomaly in the legislation.

Consequential surgery which goes to plan and does not cause any additional detriment to the Claimant is not an “injury” pursuant to the definition in s 1.4.

If, however, the Claimant has a non-threshold injury, the effects of surgery related to that injury does count when assessing the Claimant’s permanent impairment.

PJH

#6 – Can Injury Sustained During Consequential Treatment be a “Non-Threshold” Injury?

Decision

Allianz Australia Insurance Limited v Miles (No 3) [2025] NSWPICMP 565

Principles

✅ At Common Law, injury sustained during the application of reasonable and necessary treatment may have been caused by the motor accident unless the treatment is grossly negligent.

✅ A right shoulder injury sustained as a consequence of a fall caused by leg weakness following a cortisone injection was, therefore, caused by the accident.

✅ The Court of Appeal has previously doubted, however, whether injury sustained during consequential treatment is an “injury” for the purpose of section 1.4 of the Motor Accident Injuries Act 2017 (MAIA) – see Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.

Sixty-Second-Or-Less Read

A Claimant sustains a soft tissue injury to her lumbar spine in a motor accident. She subsequently gets a cortisone injection which causes left leg weakness and she sustains a fall. The fall causes a right rotator cuff tear.

Does the Claimant’s right rotator cuff tear satisfy the threshold injury test and entitle her to ongoing statutory benefits and common law damages?

In Allianz v Miles, the Medical Review Panel determined that there was a causal chain linking the rotator cuff tear to the accident. The Panel also concluded that the rotator cuff tear was an “injury” for the purpose of s 1.4 of the Motor Accident Injuries Act. The accident, therefore, caused a non-threshold injury to the right shoulder.

Facts

On 30 April 2022, the Claimant approached a roundabout with the intention of turning left. Before she could do so, however, the Insured vehicle collided with her vehicle from behind.

The Claimant asserted that she sustained various non-threshold physical and psychiatric injuries which would entitle her to ongoing statutory benefits and common law damages.

Given that the various injuries were raised at different times, there were multiple applications for assessment and further assessment.

This dispute, however, related to whether the accident caused a non-threshold injury to her right shoulder. The original PIC Medical Assessor certified that the motor accident caused a non-threshold injury to the Claimant’s right shoulder in the form of a right rotator cuff tear.

The Insurer submitted that the right rotator cuff tear was caused by a subsequent fall on 18 October 2022, some six months post-accident, and that the motor accident made no causative contribution to the fall.

The Insurer successfully sought referral to the Medical Review Panel.

The Review Panel’s Decision

Was the Right Rotator Cuff Tear Caused by the Accident?

The Review Panel accepted the following chain of causation between the motor accident and the Claimant’s non-threshold, right shoulder injury:

✅ The motor accident caused a threshold injury to the Claimant’s lumbar spine.

✅ The lumbar spine injury necessitated a cortisone injection.

✅ The cortisone injection caused the Claimant’s left leg to give way.

✅ The Claimant’s fall caused a non-threshold injury to the right shoulder in the form of a high-grade partial thickness supraspinatus rotator cuff tear.

The Review Panel therefore concluded that the motor accident could have medically caused the rotator cuff tear and did, in fact, cause that tear.

In coming to this conclusion, the Review Panel applied the High Court’s decision in Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, which remains the leading authority for the proposition that the original tortfeasor remains liable for any additional injury caused during treatment for an accident-related injury unless the treatment can be characterised as grossly negligent.

Was the Right Rotator Cuff Tear an “Injury”?

Having found that causation was established, the Review Panel proceeded to consider whether the right rotator cuff tear was an “injury” within the meaning of section 1.4 of MAIA.

The Review Panel had regard to doubts expressed by the Court of Appeal, albeit in obiter remarks, regarding whether injury sustained via consequential surgery fell within the definition of “injury” in s 1.4.

The Review Panel concluded, however, that the Claimant’s right shoulder injury fell within the section 1.4 definition of “injury” given the causal connection between the lumbar spine injury, the cortisone injection, the left leg weakness and the fall, together with fact that the fall caused the Claimant harm.

Conclusion

Given its conclusion that the right shoulder injury was an “injury” for the purpose of section 1.4, it followed that it was a non-threshold injury caused by the motor accident.

Pete’s Perspective

The question of whether the Claimant can satisfy the threshold injury test – and become entitled to ongoing statutory benefits and common law damages – by relying, solely, on an injury sustained during consequential treatment remains unresolved.

The Court of Appeal in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 expressed doubts on this question, at [99], as follows:

“In any event, even on the assumption that the removal of bone during the foraminotomy procedure could be a personal or bodily injury as defined in the Act (a question which, as set out at [54] above, it is unnecessary and inappropriate for this Court to determine) my provisional view is that that would be a “different” injury from the injury to Mr Mandoukos’ cervical spine sustained at the time of the motor accident. The foraminotomy procedure occurred some 18 months after the motor accident. It involved a mechanism, consensual surgical removal of bone, entirely separate from the impact of the motor accident. That is so even though it was performed by reason of Mr Mandoukos’ symptoms resulting from the motor accident. It is also of a different character from an assault or impact upon the body consequent upon the forces of the motor accident. Ultimately, however, if Mr Mandoukos seeks referral of a medical dispute as to whether the foraminotomy procedure has the consequence that the cervical spine injury he sustained in the motor accident is a minor injury, that question can be assessed by a medical assessor.”

The Review Panel in Miles sidestepped Mandoukos by stressing that the Claimant’s lumbar spine injury caused the need for cortisone treatment, which caused the left leg weakness, which caused the fall, which caused the right shoulder injury. A similar approach was recently adopted in Gibbin v AAI Ltd t/as GIO [2025] NSWPICMP 523, albeit without reference to Mandoukos.

The difficulty is that the same reasoning process could have been applied to Mr Mandoukos’ foraminotomy procedure. His accident caused a neck injury, which caused the need for a foraminotomy, which caused the removal of bone.

Yet the Court of Appeal still expressed doubts over whether the removal of bone was an “injury” pursuant to section 1.4 of MAIA.

The distinction appears to be that the foraminotomy procedure which Mr Mandoukos underwent did not cause him any additional detriment or harm. It was designed to improve his physical condition. It followed that the removal of bone was not an “injury“.

By contrast, the cortisone injection, in this claim, caused a fall which resulted in additional harm to the Claimant, by way of a rotator cuff tear.

Ultimately, however, there will still be confusion over whether injury sustained during consequential treatment can produce a non-threshold injury until a higher court is called upon to determine the issue.

My full case note on Mandoukos can be found here.

My full case note on Gibbin can be found here.

#4 – Review Panel finds Rotator Cuff Tear Sustained During Treatment is a Non-Threshold Injury

Decision

Gibbin v AAI Ltd t/as GIO [2025] NSWPICMP 523

Principles

✅ At Common Law, injury sustained during the application of reasonable and necessary treatment may have been caused by the motor accident unless the application of the treatment is grossly negligent.

✅ A rotator cuff tear sustained during treatment for a frozen shoulder was, therefore, found to be a non-threshold injury.

✅ The Court of Appeal has previously doubted, however, whether consequential surgery constitutes an “injury” – see Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.

Sixty-Second-Or-Less Summary

A Claimant suffers a frozen left shoulder as a consequence of a motor accident. She subsequently undergoes manipulation of her shoulder under anaesthetic which, on the balance of probabilities, causes a right rotator cuff tear.

Has the Claimant sustained a non-threshold injury?

In Gibbin v GIO, the Medical Review Panel noted that the original accident caused any injury sustained during reasonable and necessary treatment unless the treatment was grossly negligent because a mishap during treatment is a foreseeable consequence of the original accident. The Panel, therefore, concluded that the motor accident caused the rotator cuff tear which is, of course, a non-threshold injury.

Query, however, whether the Review Panel overlooked the Court of Appeal’s decision in Mandoukos v Allianz.

Facts

The Claimant was injured in a motor accident on 21 March 2019 when the vehicle she was driving was struck from behind at 80 kph.

The Insured denied liability for ongoing statutory benefits (and, effectively, for common law damages) on the grounds that the only injuries sustained by the Claimant were threshold injuries.

The threshold injury dispute proceeded to the Commission for assessment. A Medical Assessor subsequently found that the accident caused soft tissue injuries to the cervical spine and left shoulder, which were both threshold injuries.

The Medical Assessor noted a left rotator cuff tear, revealed by an MRI in November 2020, but concluded that the tear was age-related and not caused by the motor accident.

The Claimant successfully applied for referral to the Review Panel.

The Review Panel’s Decision

The Review Panel determined that the motor accident caused a non-threshold injury to the Claimant’s left shoulder for the following reasons:

🟪 Whilst there was no history of any direct impact to the Claimant’s left shoulder, she was holding the steering wheel when the rear-end impact occurred.

🟪 The forces involved in the accident were capable, from a medical perspective, of causing a left shoulder injury.

🟪 The Claimant made complaints of left shoulder pain to her GP seven days post-accident.

🟪 The Claimant subsequently developed a frozen left shoulder.

🟪 On the balance of probabilities, the accident caused an injury to the Claimant’s left shoulder which developed into a frozen shoulder.

🟪 The Claimant underwent manipulation of her left shoulder under anaesthetic on 15 November 2019.

🟪 A subsequent MRI scan on 26 November 2020 revealed a full thickness left rotator cuff tear.

🟪 The manipulation under anaesthetic procedure was a reasonable and necessary treatment measure to address the Claimant’s frozen left shoulder.

🟪 A torn rotator cuff is a known risk associated with manipulation under anaesthetic.

🟪 The High Court held in Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 that the original tortfeasor remains liable for injury caused by any subsequent treatment unless the conduct of the subsequent treatment provider can be categorised as grossly negligent.

🟪 It followed that the accident caused a frozen left shoulder, necessitating manipulation under anaesthetic, which caused a rotator cuff tear which is a non-threshold injury.

Pete’s Perspective

The Review Panel in Gibbin applied the common law principle that an adverse treatment outcome, even if the result of negligence, is a foreseeable consequence of the original tortfeasor’s negligence in causing the original accident. Only gross negligence breaks the causal chain between the original accident and the adverse treatment outcome.

The Review Panel, therefore, concluded that the motor accident caused the left rotator cuff tear which resulted from the manipulation under anaesthetic designed to alleviate the Claimant’s frozen shoulder. There was no suggestion that the rotator cuff tear was the result of gross negligence. It was a foreseeable risk of the manipulation under anaesthetic.

The Review Panel appears to have overlooked, however, the doubts expressed by the Court of Appeal in Mandoukos v Allianz, at [99], re whether consequential surgery can transform a threshold injury into a non-threshold injury. My full McCabes Lawyers Case Note on Mandoukos can be found here.

PJH