AAI Ltd t/as Suncorp Insurance v Corish
[2025] NSWPICMP 400
•5 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Ltd t/as Suncorp Insurance v Corish [2025] NSWPICMP 400 |
CLAIMANT: | AAI Ltd t/as Suncorp Insurance |
INSURER: | Corish |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Dr Margaret Gibson |
MEDICAL ASSESSOR: | Dr Christopher Oates |
DATE OF DECISION: | 5 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); Review Panel assessment threshold injury; muscular tears within gluteus maximus; distinct issue as to injury and body part; tear in right glute; no requirement for further examination; intramuscular tears; tear in muscle is not analogous to a tear in a tendon; Held – no evidence of damage to a tendon; intramuscular means the tears were situated inside the muscle; no evidence of the existence of a parcel or complete rupture of tendon; threshold injury; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | 1. The Review Panel revokes the certificate of Medical Assessor Alan Home dated 20 January 2025. 2. The following is a threshold injury for the purposes of the Act: · right buttock: two muscular tears within the gluteus maximus muscle. |
STATEMENT OF REASONS
INTRODUCTION
Wayde Corish (the claimant) is a 65-year-old man who was injured in a motor vehicle accident on 16 July 2023. Following the accident the claimant lodged an Application for Personal Injury Benefits on 22 July 2023. Thereafter he sought a concession from the insurer that the injuries he sustained ought to be regarded as non-threshold injuries. The insurer, following an internal review dated 13 August 2024, declined to make this concession.
The claimant lodged an Application for Assessment of Threshold Injury and was examined by Medical Assessor Alan Home on 16 January 2025 in respect to an injury to his buttocks – gluteal tendinopathy and a tear in the right gluteus. Thereafter Medical Assessor Home determined that the injury was a non-threshold injury.
The insurer sought a review of this determination and in a certificate dated 20 March 2025 President’s delegate Kenneth Ho decided that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The matter was then referred to this medical review panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The Review Panel (Panel) met on 13 March 2025 and considered what was the most appropriate way to determine the dispute. The Panel noted that there was a very simple and distinct issue which required determination. That is whether the injury to the claimant’s right buttock, identifying tears within the gluteus maximus and caused by the motor vehicle accident, could be determined to be a non-threshold injury.
The Panel has determined that all relevant material for the assessment of this matter is now before it. The Panel further notes that there is no dispute in respect to the causation of the claimant’s injury to his right buttock. As a consequence, the panel considers that this is a matter which can be determined on the papers and, thereafter, settled at a further meeting of the Panel after consideration by the Medical Assessors.
The Panel has determined that all relevant medical material for the assessment of this claimant is now before it and notes the submission of both parties and examination findings. The Panel further notes that there is no genuine dispute in respect of the causation of the claimant’s injury to the right buttock. In any event that panel is of the view that all the material supports allegation of an injury to the right buttock, which is the only injury which has been referred to the Panel for assessment. That is:
“buttock's – gluteal attended apathy and tear in right glute.”
Accordingly, the Panel has determined that this is a matter which can be determined on the papers without a requirement to conduct either an interview or examination of the claimant.
Pre-accident medical history and relevant personal details
The claimant is a 65-year-old man who, prior to the accident on 16 July 2023, is noted as being in good health. There is no relevant past history other than knee surgery in 2010. Most particularly there is no prior history of injuries or symptoms which affect the claimant’s buttocks, hips or a back complaint.
History of the motor vehicle accident
The claimant was the driver of a motor vehicle who was travelling on the M4 motorway in Sydney when he was forced to come to a stop, as the vehicle in front of him had slowed down, at which time his vehicle was struck from behind by the insured vehicle. There was a further impact with a second vehicle and damage to his vehicle including a broken window. Immediately following the accident, he was able to alight from the vehicle and was provided assistance bypasses by staff an ambulance attended and conveyed both the claimant and his wife to Westmead Hospital where he was assessed.
Post accident medical treatment
He underwent chest and pelvic X-rays and was a note of swelling in his right buttock. After a period of observation he was discharged.
The claimant has been under the care of his general practitioner Dr Hanna. In a Certificate of capacity following an examination on 16 July 2023 Dr Hanna noted:
“…mechanical debridement neck, back, left shoulder, haematoma left buttock, sore right wrist, wound left leg/tear gluteus maximus left side big haematoma."
Other than a typographical errors and incorrectly identifying which buttock was injured the panel is satisfied that the material supports the allegation of an injury to his right buttock.
The claimant was referred for physiotherapy for his injuries. And a certificate dated 4 April 2023 the physiotherapist, Steve Cole, diagnosed:
“…intramuscular tear x 3 to gluteal maximus muscle.”
After a referral by Dr Hanna the claimant underwent an ultrasound of his right buttock on 21 July 2023. It is confirmed:
“The gluteus maximus muscle shows two tears with intramuscular haematoma one measuring 62 x 12 x 41 MM and the other one measures 52 x 25 x 58 MM. The comment is ‘Gluteus maximus intramuscular tears’”.
“Gluteus medius and minimus tendinopathy.”
Insurer’s submissions
The insurer submitted, most relevantly, that by making the analogy that a muscle tear correlated with tendon tear certificate of Medical Assessor Home is incorrect. That is in seeking to us classify a muscle tear as analogous to a tear in the tendon attached to the muscle he falls into error.
The Panel notes that the claimant, following this surgery, was more susceptible to injury or damage to her right shoulder. This proved to be the case. It does not alter the panel’s view that the origin of the injury to the claimant’s shoulder was the motor vehicle accident and consequently, the subsequent surgical procedure she has undergone were caused wholly or in part by the motor vehicle accident.
Claims submissions
The claimant submitted that a tear in the muscle is analogous to a tear in a tendon to which it attaches. The Panel did not accept this submission. There is nothing in the material to suggest that the tendon to which the gluteus maximus attaches was torn or damaged in any way.
Additionally, the claimant submitted that the significant size of the tears in the right gluteus maximus were of such a large size that it caused an intramuscular haematoma which evidence a musculotendinous tissue rupture. The Panel did not accept the submission noting that an intramuscular haematoma is a soft tissue injury. It is not evidence of damage to a tendon. As outlined above the material before the panel does not support any allegation of tendon damage. The injury was an intramuscular haematoma for which there was no evidence of a musculotendinous tissue rupture.
Determination
Whilst the Panel appreciates that the claimant sustained a significant injury to the right gluteus maximus muscle, it determined that based on the available objective evidence, this is a soft tissue injury and therefore a threshold injury. This is with particular reference to s 1.6 (2) of the Motor Accident Injuries Act 2017 at 27(8).
The contention that the tears of the right gluteus maximus are of sufficient size to cause intramuscular haematomas and therefore would be considered a musculotendinous tissue rupture is not correct. The material does not support a contention that the tears within the gluteus maximus are proximate to the tendon. An assertion that such tears must, by analogy, be associated with tears to the tendon is not correct. It is not supported by the medical material. The term intramuscular means that tears were situated wholly inside the muscle.
The ultrasound scan dated 21 July 2023, some five days after the accident, identifies two large tears of the gluteus maximus muscles both with intramuscular haematoma (blood collection). The comment on the report notes gluteus maximus intramuscular tears.
The term intramuscular means the tears were situated inside the muscle. There is no indication that either tear was situated at the musculotendinous junction, so there is no evidence of the existence of a partial or complete rupture of tendon, which, if present, would not justify the designation of soft tissue injury and thus be classified as a non-threshold injury.
The Panel therefore finds the injuries sustained by the claimant a threshold injury.
Conclusion
The Panel finds the injury sustained by the claimant to be a threshold injury.
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