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Assessing Threshold Injuries

The case of Saleh v Insurance Australia Limited t/as NRMA Insurance [2024] concerned Mohamad Saleh’s claim for compensation following a motor vehicle accident on 22 October 2018. Mr Saleh sustained injuries to his cervical spine, lumbar spine, right hip, right shoulder, and chest, leading to significant medical treatment, including fusion surgery at the C4/5 and C5/6 levels of his cervical spine.

The critical issue in this case was whether the injuries sustained by Saleh – particularly the need for fusion surgery – were caused by the motor accident and whether they met the threshold for “more than threshold”  injuries under the Motor Accident Injuries Act 2017 (NSW). If an injury is considered “more than threshold”, a claimant may be entitled to claim damages and receive statutory benefits beyond 104 weeks after the accident.

Threshold injuries include:

  1. A minor psychological or psychiatric injury (e.g. an acute stress disorder and adjustment disorder); or
  2. An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes).

Following that logic, “more than threshold” injuries are:

  1. A recognised psychiatric injury other than acute stress disorder or adjustment disorder; and
  2. Physical injuries to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage, and other significant injuries, such as fractures.

In the case of Saleh, the Review Panel, led by Member Alexander Bolton, together with Medical Assessors, Christopher Oates and Neil Berry, revoked the initial certificate issued by Medical Assessor Cameron, determining:

1: That the need for cervical spine surgery arose out of the motor vehicle accident

This decision was based on the understanding that the surgery followed a conservative treatment course that had failed, making surgery a logical next step.

2: That the cervical spine surgery was a “more than threshold” injury

The Panel addressed the question of whether cutting the skin at the surgery site constituted a threshold injury. They concluded that the nature of Saleh’s surgery, which involved significant structural alteration, including the cutting of skin, nerves, ligaments, muscle, and bone, made his injuries a ”more than threshold” injury due to the surgery’s invasive nature and its direct link to the accident.

3: That Saleh’s injuries to his lumbar spine, right hip, right shoulder and chest were soft tissue injuries and therefore, threshold injuries

While the Claimant did have several radiculopathies and/or Carpal Tunnel Syndrome in various parts of his body (which could therefore make these injuries “more than threshold”, the Panel agreed with the Assessor at first instance, that these injuries were not caused by the accident. As to the injury to the right shoulder, the Panel were satisfied that the imaging not show evidence that the tendon had torn – therefore, no evidence of a “more than threshold” injury. Furthermore, as to the totality of his injuries, the Panel was not convinced that Saleh had demonstrated two or more signs of radiculopathy at these sites that was caused by the accident. Therefore, the Panel concurred with Assessor Cameron, that those injuries were correctly determined to be threshold injuries.

Key takeaways:

Information for claimants about the legal and medical assessment processes to assist with expectations regarding their claims and the evidence required to support them.

This case underscores the complexity of determining the causation and severity of injuries in motor vehicle accident claims.

Disclaimer

This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.

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