Tag: WPI

#30 – Spinal Nerve Root Injury? Show Me the (Radicular) Signs!

Decision

Morrison v QBE Insurance (Australia) Limited [2026] NSWPICMP 79

Sixty-Second-Or-Less Summary

A Claimant suffers a neck injury in a motor accident. The evidence demonstrates an injury at C3 causing one sign of radiculopathy.

Has the Claimant sustained a non-threshold injury?

In Morrison v QBE, the Medical Review Panel highlighted that clause 5.8 of the Motor Accident Guidelines requires an injured person to demonstrate two signs of radiculopathy. Given that the Claimant only demonstrated one sign of radiculopathy, the requirements of clause 4(1) of the Regulations was not satisfied. It followed that the Claimant’s injury was a “soft tissue injury” and, therefore, a “threshold injury”.

Principles

✅ Clause 4(1) of the Motor Accident Injuries Regulation 2017 (MAIR) provides that a spinal nerve root injury, manifesting in neurological signs, is still a soft tissue injury unless those neurological signs constitute radiculopathy.

✅ Clause 5.8 of the Motor Accident Guidelines (MAGs) provides that an injured person must demonstrate at least two of the five recognised signs of radiculopathy.

✅ If an injured person demonstrates only one sign of radiculopathy, clause 5.8 of the MAGs is not satisfied, and their injury will be deemed a threshold injury.

Facts

The Claimant was injured in a motor accident on 23 August 2023.

The Insurer denied liability for ongoing statutory benefits and common law damages on the grounds that the only injury the Claimant sustained was a threshold injury, within the meaning of [s%201.6(2)]s 1.6(2) of MAIA.

The primary Medical Assessor concluded that the Claimant’s cervical spine injury was a threshold injury for the following reasons:

🟪 There was no evidence of radiculopathy and no evidence of any disc rupture.

🟪 Any injury at C3 was not capable of causing radiculopathy because there is no myotome, reflect or stretch test referable to that level.

🟪 The accident only caused an aggravation of right C3/4 and left C2/3 facet joints.

The Claimant successfully sought referral to the Medical Review Panel.

The Review Panel’s Decision

The Review Panel agreed that the Claimant’s cervical spine injury was a threshold injury, for the following reasons:

🟪 The evidence established that the nature of the accident could have caused a cervical spine injury and that the accident did, in fact, cause a left-sided C3 nerve root injury.

🟪 The evidence did not establish a C2/3 disc bulge or protrusion or a facet joint capsule injury. It follows that the accident did not cause a “complete or partial rupture of tendons, ligaments, menisci or cartilage” which would have taken the injury outside the statutory definition of “soft-tissue injury” in s 1.6.

🟪 Whilst the C3 nerve root injury is “an injury to nerves“, clause 4(1) of MAIR provides that a spinal nerve root injury, manifesting in neurological signs, is still a soft tissue injury unless those neurological signs constitute radiculopathy. Furthermore, clause 5.8 of the MAGs requires that an injured person demonstrate at least two of the five recognised signs of radiculopathy.

🟪 It is rare for an injury to C3 to cause radiculopathy.

🟪 In this case, the Claimant only demonstrated one sign of cervical radiculopathy. He did not demonstrate two signs as required by clause 5.8 of the MAGs.

My Perspective

The decision in Morrison provides a useful illustration of how the provisions relating to physical threshold injuries must be read together. In broad terms:

🟪 Section 1.6(2) of MAIA provides a broad definition of what constitutes a “soft tissue injury“, with both examples and exceptions.

🟪 Clause 4(1) of MAIR clarifies when an injury to a spinal nerve root falls inside or outside the definition of “soft tissue injury” by reference to the presence of “radiculopathy“.

🟪 Clause 5.8 of the MAGs further clarifies what symptoms and signs constitute “radiculopathy” and confirms that two signs are required.

The decision in Morrison also confirms that an injury to a spinal nerve root remains a soft tissue injury if there is only one sign of radiculopathy stemming from that injury.

PJH

#29 – Sharpen Your Pencil – Care Required in Defining the Scope of Medical Disputes

Decision

Fitzsimmons v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 37

Sixty-Second-Or-Less Read

A Claimant successfully applies for a review of a primary WPI assessment. The Claimant’s facial scarring was assessed by a different primary medical assessor. The review application includes “facial disfigurement” in the list of injuries to be assessed.

Is any impairment caused by the Claimant’s facial scarring before the Review Panel?

In Fitzsimmons v IAG, the Medical Review Panel concluded that it was not required to assessed the Claimant’s scarring impairment. Its reasoning included the fact that the Claimant clarified in correspondence to the Commission that the term “facial disfigurement” was intended to refer to the facial nerve damage assessed by the primary medical assessor. Furthermore, facial nerve injury and facial scarring required different assessment methods.

In Brief

✅ A medical dispute is defined by all the correspondence between the parties and the Commission, including forms, submissions and other correspondence with the Commission during the life of the dispute.

Facts

The Claimant was injured in a motor accident on 18 January 2013 when he was a child. A dispute subsequently developed between the parties as to whether the Claimant’s accident-related injuries gave rise to an impairment exceeding 10%.

At first instance, the Claimant’s WPI was assessed at 9% by two primary Medical Assessors. The Claimant successfully sought a review of the first Medical Assessor’s assessment.

The Review Panel noted that the Claimant’s submissions listed a number injuries, including “mild facial disfigurement”. An issue arose as to whether the inclusion of “mild facial disfigurement” meant that “facial scarring” was an injury which the Review Panel had to assess.

The Review Panel’s Decision

The Review Panel concluded that “facial scarring” was not an injury which the Review Panel was required to assess for the following reasons:

🟪 The Court of Appeal held in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71, that a medical dispute is “a question of fact depending on the ambit of the dispute between the parties at the relevant time having regard to the competing claims made”.

🟪 The further evidence relied upon by the Claimant did not include any assessment of scarring and the expert the Claimant relied upon with respect to his facial disfigurement said that scarring was outside their expertise.

🟪 The Claimant’s scarring was previously assessed by a different primary Medical Assessor and the Claimant had not sought a further or review assessment of that injury.

🟪 Subsequent correspondence between the Claimant’s Solicitor and the Commission made it clear that the scope of the dispute was limited to a left facial nerve injury and did not extend to facial scarring.

🟪 The assessment of permanent impairment caused by facial nerve injury and facial scarring involves the application of different Tables in the relevant permanent impairment guidelines.

My Perspective

The decision in Fitzsimmons provides a useful reminder that in the post-Mandoukos world the parties must be vigilant in their correspondence with the Commission because that correspondence defines the scope of the dispute between the parties. A slip might result in the dispute being inadvertently restricted or expanded.

The Review Panel in Fitzsimmons made it clear, at [68], that the Commission will look beyond the application and reply forms lodged by the parties in order to ascertain the scope of the dispute. Subsequent submissions – or even a post made on the PIC Portal – has the capacity to help define the scope of the dispute.

PJH