The importance of submissions by parties to PIC medical disputes

By Tanya Smart, Michael Dent and Katherine Teague

Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71

Court of Appeal decision

This recent Court of Appeal decision highlights the importance of clearly defining medical disputes between parties and the risks associated with making insufficiently detailed submissions to the Personal Injury Commission (PIC) when seeking determination of a dispute under Division 7.5 of the Motor Accident Injuries Act 2017 (NSW) (MAI Act).

The decision determines an appeal of a decision of the Supreme Court in relation to a judicial review application. Mr Mandoukos had asked the Supreme Court to exercise its power of judicial review regarding two decisions made by decision makers within the PIC. These decisions related to a dispute between him and the first defendant as to whether a minor injury (now called a threshold injury) existed under the MAI Act.

Most significantly, the Supreme Court found:

  • whether surgery to treat a minor injury may render it non-minor would, at least initially, be a question of fact. There’s no presumption that a minor injury becomes a non-minor injury merely because there is some form of surgery;
  • the PIC appointed medical assessor’s certificate ought not be set aside based on an argument that surgery performed due to a minor injury rendered it a non-minor injury when that argument was never put before the medical assessor;
  • the medical assessor is not expected to somehow divine a case not either presented or based on evidence, and the court shouldn’t during judicial review ‘ferret around and construct a claim’ where none had been made; and
  • where the medical assessor’s certificate complies with law, then it wouldn’t be possible for any delegate of the President of the PIC (Delegate) to determine that an application for review of the medical assessor’s certificate ought be granted on the basis the assessment was incorrect in a material respect, so it would be futile to remit the matter for redetermination in any event.

The Court of Appeal delivered judgment on 4 April 2024, dismissing the appeal from the Supreme Court decision.

Significant points are as follows:

  • The Supreme Court was correct in finding that, because Mr Mandoukos had not, in his application for further medical assessment by PIC, specifically framed the medical dispute referred to the medical assessor as a dispute about whether the surgery performed on him meant he had sustained more than a minor injury to the cervical spine, the medical assessor wasn’t required to assess that dispute.
  • Simply attaching the operation report to Mr Mandoukos’ application for further assessment of the dispute about whether there had been more than a minor injury to the cervical spine wasn’t sufficient. The submissions attached to that application had sought a determination of a dispute concerning whether more than a minor injury of the cervical spine was sustained due to the presence of radiculopathy, not due to surgery. As a result, the latter dispute wasn’t referred to the medical assessor.
  • The Supreme Court erred in determining the issue of whether the Delegate had erred in determining the application for review hinged on whether there was jurisdictional error in the decision of the medical assessor. Instead, it depended on whether the Delegate had erred in determining whether they were ‘satisfied that there [was] reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application’, as provided in s 7.26(5) of the Act. The Court of Appeal however found the ‘challenge to the decision of the Delegate must fail in any event. Given that the ambit of the referral to the Medical Assessor was confined by the parameters of the "medical dispute", and the medical dispute referred did not include any question as to whether the disturbance or removal of bone during the foraminotomy was part of Mr Mandoukos' injury, there can be no possible jurisdictional error in the Delegate's conclusion under s 7.26(5).’.
  • The Court of Appeal made no determination as to whether surgery involving the removal of bone to treat an accident-related injury was capable of causing an injury which was not a minor injury.
  • Paragraph 99 includes some significant and interesting commentary, which is at odds with the discussion in the Supreme Court judgment at [93], discussed below:
    • 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.
  • Despite the comments in paragraph 99 of the judgment regarding the relationship between surgery and minor injuries, there‘s no ratio on that issue.
  • Interestingly, the judgment suggests even accident-related surgery which involves modification to tissue that isn’t soft tissue may not result in a non-minor injury, and raises the issue of whether voluntary treatment to assist symptoms is to be considered an ‘injury’ at all.
  • The judgment firmly indicates each case will turn on its own facts, which is in keeping with the decision at first instance.
  • The Court of Appeal’s narrow interpretation of the term ‘medical dispute’ as defined in section 7.17 of the Act highlights the importance of specific framing and drafting PIC applications and submissions. In this case, the court interpreted the ‘medical dispute’ which had been referred to the PIC medical assessor not as whether there was more than a minor injury to the cervical spine due to the accident, but rather whether there was more than a minor injury to the cervical spine due to radiculopathy, which they regarded as distinct from a dispute as to whether there was a more than a minor injury to the cervical spine due to the foraminotomy procedure. This distinction emphasises the necessity for precision in how disputes are articulated.

Implications for parties

When lodging an application to have a PIC medical assessor determine a dispute, parties must ensure they have set out the specific reason or reasons why it ought to be determined in their favour.

Simply attaching evidence from which the medical assessor is to construct a dispute to be determined isn’t sufficient.

Take care to include submissions which are detailed enough to set out the full nature of the dispute between the parties.

The absence of sufficiently detailed submissions, and sufficiently detailed medical evidence, could mean the full dispute is not determined, and also create an impediment to successfully seeking review of a medical assessor’s decision.

There’s no presumption that a threshold (formerly minor) injury changes in nature merely because there‘s some form of surgery - this will be a question of fact in each case.

Read below for more details.

Mr Mandoukos lodged a common law claim under the MAI Act against Allianz Australia Insurance Limited (Insurer), the compulsory third party (CTP) insurer of the driver of a vehicle who he alleged caused him injury due to a negligent act.

Under section 4.4 of the MAI Act, no damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries (formerly called minor injuries, the wording in place at the time of the PIC decisions which were the subject of these proceedings).

The Insurer determined that Mr Mandoukos’ injuries were minor, and the Insurer was therefore not liable to pay common law damages in respect of those injuries.

The Insurer made another determination to the same effect after Mr Mandoukos underwent a C5/6 foraminotomy on 1 July 2020.

Mr Mandoukos ultimately lodged with the PIC a further application for medical assessment of a dispute about whether an injury other than a minor injury had been sustained in the cervical spine, supported by treating medical specialist reports of operating neurosurgeon Dr McKechnie dated 19 August 2020, and accompanied by written submissions.

(There had been prior proceedings between the parties before the PIC on the issue of minor injury which are not material for the purpose of this discussion, save to say that they preceded the surgery referred to above).

The Supreme Court noted [at 19 and 20] that:

In the written submissions that accompanied the application, the plaintiff essentially submitted that the report demonstrated that the plaintiff in fact had radicular pathology leading to right arm radicular pain resulting in surgical treatment. The submission (pars 4 and 5) relevantly was:

4 The fundamental error underpinning [the earlier medical] assessments was that they proceeded on an assumption that the [plaintiff] had not experienced radicular symptoms (radiculopathy). Indeed, the assumption underpinning those assessments was expressed emphatically in terms of their being “no evidence of radiculopathy”. This finding was based on a single clinical examination performed by Dr Wallace. The [plaintiff] was not examined by the review panel.

5 The additional information makes it patently clear that the [plaintiff] had experienced right C6 radiculopathy caused by nerve root compression...

Given the arguments the plaintiff made in this Court, it is equally important to note what was not argued by the plaintiff: there is no reference to the plaintiff alleging that he sustained a “consequential injury” (a term employed by the plaintiff as the basis for multiple grounds of review), nor that the surgery itself was a “consequential injury” - or indeed anything approaching that.

The medical assessor certified on 14 June 2022 (the Certificate) that Mr Mandoukos sustained a cervical spine soft tissue injury only, which was a minor injury under the MAI Act. In the Certificate, the medical assessor determined Mr Mandoukos didn’t suffer radiculopathy with reference to the definition contained in the Motor Accident Injuries Regulation 2017 (NSW) (MAI Regulation): ‘an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury.’

Mr Mandoukos sought review of the medical assessor’s certificate under section 7.26 of the MAI Act, on the basis that the medical assessor’s decision was incorrect in a material respect. Initially, the application was based on the assertion the medical assessor ought to have found that Mr Mandoukos’ had suffered radiculopathy at some stage after the injury. Submissions were made that:

The review panel would accept that the [plaintiff] has had radiculopathy as found by Dr McKechnie and for which he underwent surgery which was successful in reducing radiculopathy.

The panel should find that the [plaintiff] has a non-minor injury due to the presence of radiculopathy since the motor vehicle accident (emphasis in original)

Mr Mandoukos later submitted additional arguments in support of his application for review. These included:

the nature of the surgery involved “removing a small portion of bone” (emphasis in original)

which was argued to amount to something more than a soft-tissue injury.

In a decision made 9 September 2022, the Delegate refused the application for review on the basis they were ‘not satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect’.

Mr Mandoukos disagreed with the certificate of the medical assessor, and with the determination of the Delegate, and filed a summons seeking judicial review of both in the Supreme Court of NSW.

The Supreme Court set out [at 62] the grounds upon which Mr Mandoukos submitted the medical assessor’s certificate should be set aside:

  • the medical assessor failed to consider whether the plaintiff’s consequential injury - being the foraminotomy - was ‘minor’ or not, and in omitting to do so, constructively failed to exercise jurisdiction;
  • in failing to consider whether the surgery was a minor injury or not, the medical assessor ‘failed to apply the lawful test of causation regarding consequential injuries’;
  • the medical assessor failed to exercise his jurisdiction and didn’t afford the plaintiff procedural fairness in failing to ‘respond to’ the plaintiff’s submission the accident created a need for the surgery and the surgery (the foraminotomy) rendered the plaintiff’s injuries non-minor; and
  • the medical assessor failed to provide legally sufficient reasoning for why the surgery didn’t cause the plaintiff’s injuries to be non-minor.

The Supreme Court noted that it was significant that it was not submitted before the court that the certificate of the medical assessor was defective in failing to find radiculopathy at some point since the accident.  

The Supreme Court noted [at 64]:

as the insurer argued, there is a significant issue about whether the grounds of review advanced by the plaintiff represent an entirely new, and different, case and that, in and of itself, justifies this Court refusing the plaintiff the relief he seeks.

The Supreme Court granted Mr Mandoukos an extension of the three-month period to seek judicial review regarding the medical assessor’s decision. This extension was given because Mr Mandoukos had first attempted to exhaust the review option provided by the MAI Act before approaching the court, and there was no opposition to the extension.

The Supreme Court ultimately dismissed Mr Mandoukos’ summons and ordered him to pay the Insurer’s costs.

The Supreme Court found the medical assessor couldn’t be criticised for failing to deal with a case or argument which hadn’t been raised, noting the consequential injury argument wasn’t one that had been raised until after the issue of the medical assessor’s certificate.

The Supreme Court also found there hadn’t been sufficient evidence before the PIC medical assessor to make such a case.

Further, the ‘consequential injury’ arguments weren’t sound: consequential injuries aren’t a separate class of injury, and the usual requirement to prove causation between the accident and the condition or complaint applied.

The Supreme Court found the medical assessor had diagnosed the condition in the cervical spine, and engaged with the question of whether radiculopathy was or had been present, and determined that question in the negative, and plainly considered the fact of surgery having taken place. The medical assessor didn’t analyse whether the surgery was a consequential injury, which the Supreme Court found wasn’t surprising, given such a suggestion was not put to him.

As to the way surgery is to be treated, the Supreme Court noted [at 93]:

Generally speaking, when a surgical procedure is performed to treat an injury sustained in an accident, the total condition resulting from the injury and the surgery is to be attributed to the original injury, subject to the operation being reasonably undertaken by the injured person: Lindeman Ltd v Colvin (1946) 74 CLR 313, 321; [1946] HCA 35; Migge v Wormald Bros Industries Ltd[ 1972] 2 NSWLR 29, 44-46. The decision in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, 529; [1985] HCA 37 - relied upon by the plaintiff - is to the same effect. However, these authorities do not support the proposition that surgery following an injury is, in and of itself, a separate injury nor a consequential one,…

Further, the Supreme Court indicated [at 100 - 111]:

110 The first argument for the plaintiff appears to be that the surgery necessarily involved a further, and non-minor, injury: the argument, so far as I understood it, appeared to be that surgery meant that the injury was transformed into a “non-minor-injury” or capable to being held to be so. I do not accept this submission, and how that argument fits within s 1.6(2) was not developed. Whether, in a given case, that could be so would, at least initially, be a question of fact. There is not, as seems to be suggested, a presumption of sorts that a minor injury becomes a non-minor injury merely because there is some form of surgery. 

111 The second argument appeared to be that the surgery itself was an injury to bone. Put another way, this submission was that the surgical procedure involved the removal of bone - with the consequence that there was an injury that was not a minor injury. The plaintiff submitted that the medical assessor constructively failed to exercise jurisdiction, and denied the plaintiff procedural fairness, by not dealing with that “case”. I do not accept this argument.

The reasons for the determination in paragraph 111 were then set out - this argument wasn’t advanced before the medical assessor, and there was no evidence before the medical assessor about what the surgery involved, only the operation report from Dr McKechnie, which provided a general description of the procedure performed, but said nothing about the specifics [see below however as to what the Court of Appeal accepted was contained in the operation report]. The Supreme Court determined it wasn’t appropriate for it to consider submissions regarding what the PIC Review Panel had said in an unrelated matter about the nature of foraminotomy surgery.  

The Supreme Court expanded on the function of the medical assessor [at 118]:

It is not, in my view, the function of the medical assessor to somehow divine a case, particularly of the kind that is covered by this ground, and it is certainly not for this Court - adopting the words of Bromwich J in COE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 669 at [9] - to “ferret around and construct a claim” where none has been made. On no view could it reasonably be suggested that this was a case that clearly arose on the material before the medical assessor.

The Supreme Court remarked that the medical assessor’s duty to provide reasons depends on the context. Here, a specific case was advanced, the medical assessor clearly identified the case presented, made a finding, and provided a conclusion with clear reasoning. In such circumstances, the reasons were legally sufficient. No reasons are required to deal with a case that wasn’t outlined, and which did not arise on the material.

In the Court of Appeal judgment, at [20], the court notes it was contended at the hearing of the appeal, for the first time, that the notation ‘R/O medial 1/3 facet’ in the operation note meant a portion of bone was removed, and for the purpose of the appeal they accepted this. However, this still did not mean the PIC medical assessor ought to have determined a dispute about whether surgery to a bone in the cervical spine resulted in a non-minor injury to the cervical spine. This is because the Court of Appeal interpreted the definition of ‘medical dispute’ (section 7.17 of the Act) narrowly, and found that the medical dispute referred to the PIC medical assessor did not include whether a minor injury to the cervical spine was sustained by reason of surgery, as that was not clearly stated in the submissions attached to application to the PIC, and it was not enough that it could be constructed from the content of attachments to the application. This was different from the Supreme Court decision, which contemplated that disputes which could be inferred from the evidence may still need determination by the medical assessor.

Contact

Tanya Smart

Tanya is a personal injury Accredited Specialist, she has worked with insurers and self-insured corporations for over 20 years.

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