The New South Wales Court of Appeal has confirmed the importance of clearly defining the medical dispute between the parties when seeking determination of a dispute under Part 7, Division 7.5 of the Motor Accident Injuries Act 2017 (NSW (MAIA). This article is a case summary of Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.
Background
The claimant was involved in a motor vehicle accident on 8 January 2019 and made a claim for compensation for an injury to his cervical spine and right knee. A minor injury (now a 'threshold injury') dispute occurred between the claimant and the insurer.
It was accepted by a PIC Medical Assessor that the motor vehicle accident caused an injury to the claimant's cervical spine, however it was found that the injury was a minor or threshold injury. The Medical Review Panel subsequently confirmed that determination.
The claimant underwent a C5/6 foraminotomy on 1 July 2020. An operation notation stated 'R/O medial 1/3 facet' which confirmed that a segment of bone was removed during his procedure.
The claimant then sought a further assessment of the minor or threshold injury dispute on 30 July 2021 under section 7.24 of the MAIA. The claimant submitted that the requirement for his foraminotomy operation demonstrated that the cervical spine injury that he sustained in the motor vehicle accident caused radiculopathy and made his injury non-minor or non-threshold. It is important to note that the claimant did not argue that the operation itself or the removal of some of his bone, changed his injury to a non-minor or non-threshold injury.
On 14 June 2022 a PIC Medical Assessor determined that the motor vehicle accident caused only a soft tissue injury to the claimant's cervical spine and as a consequence his cervical spine injury was a minor or threshold injury.
The claimant sought review of the Medical Assessor's minor or threshold injury determination pursuant to section 7.26 of MAIA on 12 July 2022. The claimant lodged a late submission submitting that his operation involved the removal of bone which caused his injury to be non-minor or non-threshold. On 9 September 2022 a PIC Delegate declined to refer the dispute to the Review Panel.
The claimant sought judicial review of the Medical Assessor's decision and the Delegate's decision.
The Supreme Court dismissed the appeal in the first instance and found:
- That whether surgery to treat a minor injury may result in it being classified as non-minor would, initially be a question of fact. That there is no presumption that a minor injury is transformed to a non-minor injury purely due to undergoing surgery;
- That the PIC appointed Medical Assessor's Certificate should not be set aside because of an argument that surgery performed due to a minor injury resulted in it being classified as a non-minor injury when that argument was not put to the Medical Assessor for the purpose of the medical dispute.
The claimant subsequently appealed.
The Court of Appeal Decision
The Court of Appeal dismissed the appeal from the Supreme Court decision for the following reasons:
i. That section 7.17 of MAIA defines a 'medical dispute' as a dispute between a claimant and an insurer 'about a medical assessment matter';
ii. That the extent of the dispute between the claimant and the insurer is a question of fact based on the evidence of the claims submitted by each party;
iii. The medical dispute referred to the Medical Assessor in the matter did not include any opposing submissions regarding the capacity of the foraminotomy procedure and removal of bone to render the claimant's injuries as non-minor or non-threshold;
iv. That the PIC Medical Assessor or PIC Delegate were not required to consider whether the removal of bone during the foraminotomy resulted in the injury being classified as non-minor / non-threshold because that question was not included in the 'medical dispute' submitted by the parties which was referred to the PIC for determination.
This decision is very important for both claimants and insurers.
The decision makes it abundantly clear that the scope of any medical dispute referred to a PIC Medical Assessor is defined not by the MAIA but by the submissions made by the parties to the dispute 1.
The PIC Medical Assessor in this case was not required to go outside the arguments made by the parties and to consider whether the claimant's operation (including removal of bone) caused his injury to be classified as non-minor or non-threshold.
The Medical Assessor was only required to determine whether the need for the operation indicated the presence of radiculopathy, which may have resulted in a non-minor or non-threshold injury finding because that was the scope of the dispute submitted by the parties.
Parties to a medical dispute must therefore ensure they make all arguments available to them when referring the medical dispute to the PIC. A failure to do so cannot be resolved by making the argument for the first time when subsequently applying for review.
It follows that simply attaching evidence from which the Medical Assessor is to construct a dispute to be determined is not sufficient. Parties need to ensure that submissions are detailed to set out the full nature of the dispute between the parties because absence of this may result in the full dispute remaining undetermined. You can read the full Judgment here.
Footnote
1 Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 at [73].
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