Allianz Australia Insurance Limited v Mandoukos

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Mandoukos [2025] NSWPICMP 844
CLAIMANT:	Nicolas Mandoukos
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Elizabeth Medland
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Les Barnsley
DATE OF DECISION:	31 October 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of single medical assessment; threshold injury dispute; claimant referred injury to bone, facet joint, and cervical spine due to foraminotomy surgery as a consequence of injury sustained in the motor vehicle accident; original Medical Assessor certified a non-threshold injury; definition of “injury” considered; Mandoukos v Allianz Australia Insurance Limited, Military Rehabilitation and Compensation Commission v May, Mahony v J Kruschich (Demolitions) Pty Ltd considered; Held – Review Panel found surgery causally related to the motor accident; Review Panel found the subject surgery does not constitute an injury for the purposes of the Act.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Assessment of threshold injury Certificate issued pursuant to s 7.26(7) of the Motor Accident Injuries Act 2017 The Review Panel: 1. revokes the certificate of Medical Assessor Todd Gothelf dated 15 February 2025, and 2. certifies that the following injury referred for assessment caused by the motor accident: · injury to bone – facet joint – cervical spine – due to foraminotomy surgery performed by Dr McKechnie on 1 July 2020 as a consequence of injury sustained in the MVA on 8 January 2019 is not an injury for the purposes of the Act. Accordingly, it is not necessary to determine if the injury is a threshold injury as defined.

STATEMENT OF REASONS

INTRODUCTION

Mr Nicolas Mandoukos (the claimant) is a 62-year-old male who sustained injury as a result of a motor vehicle accident that occurred on 8 January 2019.
He was the driver of a vehicle when another vehicle turned in front of him. The claimant swerved to the left, in order to avoid a collision with the other vehicle and in so doing impacted a car and a light post.
The claimant lodged a claim with Allianz Australia Insurance Limited (the insurer), the compulsory third party insurer of the vehicle considered to be at fault. The insurer is liable to pay statutory benefits and/or damages to the claimant pursuant to the provisions of the Motor Accident Injuries Act 2017 (MAI Act).
The subject issue in dispute between the parties is whether any physical injury suffered by the claimant as a result of the accident is a threshold injury (previously known as a minor injury – any reference to ‘minor injury’ in this determination is a reference to ‘threshold injury’).
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury, then the gateway to ongoing statutory benefits and an entitlement to claim common law damages is opened.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the claimant has suffered a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The referred injury for determination in the subject medical dispute is whether the referred injury: “injury to bone – facet joint – cervical spine – due to foraminotomy surgery performed by Dr McKechnie on 1 July 2020 as a consequence of injury sustained in the MVA on

8 January 2019”.

In essence, the task of determination of the Review Panel is as follows:
·        causation in respect of the claimant undergoing the cervical spine surgery
·        whether the subject surgery falls within the definition of “injury” for the purposes of the MAI Act. The claimant submits that the surgery constitutes an injury, and conversely, the insurer submits that it is not an injury.
·        if it is determined to be an injury, whether such injury is a threshold injury for the purposes of the MAI Act.
The claimant has traversed a long and arduous path in respect of the medical dispute.
The threshold injury dispute (at the time a “minor” injury dispute) was first assessed by Medical Assessor Wallace on 19 November 2019 through the then Dispute Resolution Service of the State Insurance Regulatory Authority. He certified that the cervical spine injury was a minor injury for the purposes of the MAI Act. He further certified that a referred injury of the right knee was not caused by the motor accident and associated right knee treatment was not related to the injury caused by the accident and was not reasonable and necessary.
The determination of Medical Assessor Wallace was the subject of a Review Panel determination dated 14 April 2020. The certificate of Medical Assessor Wallace was confirmed.
A further application for assessment of a threshold dispute was made by the claimant. Medical Assessor Mohammed Assem provided a certificate and reasons dated 6 June 2022. The following injuries were reportedly referred to him for assessment:
· Cervical spine – whether the cervical spine injury – radiculopathy caused by the motor accident is a minor injury for the purposes of the Act.
· Right knee – whether the right knee injury – chondral damage and bone oedema caused by the motor accident is a minor injury for the purposes of the Act.
Medical Assessor Assem certified that the claimant had suffered a soft tissue injury of the cervical spine which was a threshold injury.
The claimant lodged a review application in respect of Medical Assessor Assem’s certificate. The application was referred by the President’s Delegate. The application was not accepted.
The claimant thereafter lodged a summons with the Supreme Court seeking judicial review of the Delegate’s decision and the medical assessment of Medical Assessor Assem. Justice Chen of the Supreme Court dismissed the summons: Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC 1023. In brief, Chen J found that an argument that the cervical spine surgery resulted in the claimant suffering a non-threshold injury was not put to the Medical Assessor for the purposes of the medical dispute.
Proceedings were then lodged on behalf of the claimant with the Court of Appeal. The Court of Appeal, in a decision of Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 (Mandoukas), dismissed the appeal.
The subject further medical dispute was thereafter assessed by Medical Assessor Todd Gothelf. The Medical Assessor provided a certificate dated 15 February 2025. The Medical Assessor certified that the referred injury, being effectively the surgery, is not a threshold injury for the purposes of the MAI Act.

THE REVIEW

The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 16 April 2025 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the 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 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 provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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 proceedings solely based on the written application: Rule 128 of the Rules.
The Panel initially met via teleconference on 16 June 2025 and discussed the evidence and the issues in dispute. A teleconference was arranged between the parties and Member Medland in order to clarify the issues in dispute to ensure that the Panel addressed all relevant matters.
The teleconference with the parties and Member Medland occurred on 24 July 2025. At that conference the parties agreed that a clinical re-examination was not required. In addition, it was confirmed that the issue of causation in respect of the subject surgery was in dispute between the parties and the Panel was to provide a determination on such issue.
A video conference examination was arranged to occur between the three Panel members and the claimant on 14 August 2025 in order to take an accurate history and assist the Panel in making a determination on the issue of causation. The examination proceeded as scheduled. The Panel thereafter discussed the examination findings and evidence at the conclusion of that conference. These reasons have been prepared collectively by all Panel members following such discussions.

LEGISLATIVE FRAMEWORK

The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold injury is a soft tissue injury or a threshold psychological or psychiatric injury. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“…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), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3    The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.6 of the Guidelines provides: “in assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“…radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines Permanent Impairment’.
(a)Loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)Positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)Muscle atrophy and/or decreased limb circumference (see definitions of clinical findings in Table 6.8 in these Guidelines)
(d)Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution.”
Clause 5.9 of the Guidelines provides that neurological symptoms of the neck or spine that do not meet the assessment criteria for radiculopathy, will be assessed as a threshold injury.
Sections 5D and 5E of the Civil Liability Act 2002 (CL Act) apply to the MAI Act.
In respect of the issue of causation, Part 6 of the Guidelines includes guidance. Whilst Part 6 deals with permanent impairment, it is still relevant to the issue of causation in respect of threshold injury disputes.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

MEDICAL ASSESSMENT UNDER REVIEW

On examination of the cervical spine Medical Assessor Gothelf noted a scar referable to the surgery performed, noting it to be a well healed 4cm scar that had not widened and there were no trophic changes.
There was no reported tenderness to palpation of the neck spinous processes or paraspinal muscles. There was a slight visible and palpable deformity in the posterior neck region and no observed muscle guarding or spasm. Reduced range of motion was noted. Muscle strength was 5/5 in all muscle groups. Sensation was intact to light touch and pink prick in all dermatomal distributions. Reflexes in the biceps, triceps, and brachioradialis were equal. No wasting or swelling of the upper limbs was found.
Following consideration of the documentation, the Medical Assessor diagnosed a cervical neck strain, and aggravation of pre-existing C5/6 degenerative disc disease caused by the motor accident.
In respect of the subject surgery the Medical Assessor found the surgery performed by Dr Simon McKechnie to be reasonable and necessary and related to the subject motor accident. He states: “the surgery resulted in injury to bone and partial or complete rupture of ligaments or tendons.”
The Medical Assessor therefore certified that the referred injury was not a threshold injury for the purposes of the MAI Act.

SUBMISSIONS

Insurer’s review submissions dated 11 March 2025

The insurer submits that the Medical Assessor erred in finding that the foraminotomy surgery constitutes a non-threshold injury. The insurer submits:
“the insurer disputes that post-accident treatment can transform a threshold injury into a non-threshold injury.
Even if it is accepted that the motor accident materially contributed to the need for the foraminotomy surgery (which remains disputed), the insurer submits that the removal of bone or the partial or complete rupture of ligaments, bone and cartilage during the foraminotomy procedure, undertaken with therapeutic intent and with the claimant’s consent, is not an “injury” for the purposes of the Act.”
The insurer notes that the subject claim was the subject of judicial review proceedings in the Supreme Court of NSW and a subsequent appeal in the NSW Court of Appeal. The insurer observes comments of Chen J in Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC1023 at [93]: “ordinarily, an accident-related injury creates a need for treatment, but that treatment is not an “injury”, nor a “consequential injury”.
The insurer further refers to the consideration of the meaning of “injury” by the High Court in the case of Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May). The definition of injury was considered in the context of the Safety, Rehabilitation and Compensation Act 1988. The majority said at [45] that if: “something can be described as a sudden and ascertainable or dramatic physiological change of disturbance of the normal physiological state it may qualify for characterisation as an ‘injury’.”
Further, Gageler J at [75] said: “an injury, it has long been repeatedly explained, is some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not “sudden”, is at least “identifiable”.
The insurer notes that the case of May was considered by the Court of Appeal in the claimant’s case, and refers to the obiter comments of Stern JA (Leeming and Kirk JJA agreeing) that consider the issue of the definition of injury.
It is noted by the insurer that the claimant reportedly told Medical Assessor Gothelf that his symptoms improved after surgery and did not identify any evidence “showing an identifiable detrimental impact upon the claimant’s symptoms or functioning arising from the foraminotomy procedure.”
The insurer therefore submits “…that the physiological change due to the foraminotomy surgery is not a harmful consequence for the worse, and is therefore not properly regarded as an “injury”.
It is then submitted by the insurer that even if it is accepted that the accident materially contributed to the need for the foraminotomy surgery and even if it is accepted that the consequences of the surgery could be an injury for the purposes of the MAI Act, that would be a “different” injury from the injury to the claimant’s cervical spine sustained at the time of the motor accident.

Claimant’s review submissions in reply dated 3 April 2025

The claimant’s submissions observe that the insurer relies heavily on the obiter comments that were made (but left unresolved) by the Court of Appeal in the claimant’s case.
The submissions note that the claimant cannot risk any further adverse costs orders in judicial review proceedings and therefore does not take an active role in the insurer’s application to the President’s delegate. Nonetheless, the claimant’s representatives, having regard to the novel nature of the legal issues, and for the benefit of the Commission in hearing counter-arguments to those raised by the insurer makes submissions that are summarised as follows.

The claimant submits that the surgery was treatment, but treatment can cause further injury. In this regard, the Guidelines are referred to at cl 6.113 which provides:
“the assessment of spinal impairment is made at the time the injured person is examined. If surgery has been performed, then the effect of the surgery, as well as the structural inclusions, must be taken into consideration when assessing impairment. Refer also to clause 6.20 of these Guidelines.”
The submissions refer to the High Court case of Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 (Mahony), where it was held that where an injury is exacerbated by medical treatment, the original tortfeasor remains liable for such exacerbation so long as the plaintiff acted reasonably in seeking or accepting such treatment. The submissions noting: “that is to say, the original tortfeasor will still bear legal responsibility for the consequences of the surgery even if the treatment was given or performed negligently, provided the damage caused by the surgery was a reasonably foreseeable consequence of the breach of duty.”
The claimant submits that there can be no question of whether the “but for” causation is established and the decision in Mahony supports the contention that the consequences of surgery are rightly to be regarded as damage caused by the tortfeasor’s breach.
The case of Hunter v Insurance Australia Ltd trading as NRMA Insurance [2021] NSWSC 623 (Hunter), is relied upon by the claimant. In that case the claimant was receiving treatment in hospital after sustaining an in injury to her foot in a motor accident. When in hospital she suffered an overdose of patient-controlled analgesia and was for a period unconscious and unresponsive. The claimant subsequently sustained a psychiatric injury. Adamson J held at [16]-[17]:
“The Panel was obliged to apply the PI Guidelines with respect to causation which, as set out above, incorporated common law principles of causation. It is well established at common law that for there to be a causal link between a consequence and a cause it is not necessary that the consequence be a direct consequence of the cause as long as it is reasonably foreseeable. This principle is illustrated by Mahony v J. Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 522; [1985 HCA 37…
The High Court (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) held that if a plaintiff acts reasonably in seeking medical treatment for injuries sustained as a result of negligence, and is further injured by the medical treatment, the original tortfeasor will be liable for the consequences of the medical treatment. The original injury is regarded as carrying some risk that medical treatment administered by reason of it will be negligently administrated.”
It is then submitted that “…accordingly, it is evident that treatment related to an injury related to an accident, can constitute a further injury for which the original tortfeasor is liable.”
In answer to the insurer’s submission that it is necessary to identify evidence showing a detrimental impact arising from the surgery, in order to determine consequential treatment constitutes an injury, it is submitted: “the claimant does not accept that, in the statutory context of the role being performed by the assessor, detriment from the surgery need be established. Rather, the true question is whether there has been disturbance of bone and ligaments by reason of the negligently caused accident. The answer to that question is undoubtedly ‘yes’.”
The submissions refer to the claimant’s case in the Court of Appeal, Mandoukos at [61] where the Court said:
“It is apparent from these provisions that the Act contemplates that two or more “injuries” may result from one motor accident. It will necessarily be a matter of fact and degree in each case whether what results from a motor accident is properly regarded as one, or more than one, injury. A range of matters may be relevant to, but not necessarily determinative of, that question. Such matters would include the nature of any harm or damage, the identifiable physiological change or disturbance relied upon, whether it is physical or psychiatric/psychological, the body part(s) involved (if any), and whether the harm or damage was sustained by reason of the immediate impact of the motor accident or from some later event, such as medical or surgical treatment or a fall, which itself resulted from the motor accident.”
The claimant relies on the Review Panel decision in the matter of Bridgefoot v Allianz Australia Insurance Limited [2024] NSWPICMP 194 (Bridgefoot) where the Panel contemplated whether a total knee replacement was a threshold injury. The Panel found at [117] – [118]:
“when a word in a statute is defined in terms of itself, then subject to the context, the Act uses the word as appearing in the definition in its natural and ordinary meaning. In our opinion, the natural and ordinary meaning of the word “injury” construed in its context in ss 3.11 and 4.1 of the Act, is the harm, damage or disturbance to a person’s physiology that is done to a person or sustained by a person resulting from a motor accident. It is thereby necessarily broader than the acute or frank injury sustained in the mechanism of the accident itself.
The expression’s textual co-location with “resulting from” in ss3.11 and 4.1 of the Act inform the expression “caused” as it appears in Schedule 2, cl2(e) of the Act work to introduce analysis of common sense causal connexion between the mechanism of injury and the harm or disturbance to the person’s physiology (and indeed, psychology) resulting from the accident. Thus “injury” is established if it appears that the motor accident is a necessary condition of the continuum of harm or disturbance suffered.”
The claimant submits that had the claimant sustained the very same alteration to his body state (ie, a skin laceration and removal of bone) in the actual collision, it would be accepted without question that the claimant sustained a non-threshold injury and there would be no need to prove additional detrimental impact upon symptoms or functioning. It is submitted that “the alteration to his body, in and of itself, is an injury resulting in physiological changes that render it ‘non-threshold’”.
It is submitted that the fact that the surgery may also have had beneficial effect is irrelevant. It is submitted that the performance of the surgery “…cannot be divorced from its context”, in that the surgery was performed at all due to the occurrence of the initial injury.

DOCUMENTATION

The Panel sent out interim directions requiring the parties to each lodge single bundles of all documents relied upon. Bundles have been received in compliance with such directions. The Panel has considered the material provided in the bundle lodged on behalf of the insurer on 20 May 2025 consisting of 718 pages – “Nicolas Mandoukos Insurers Review Panel bundle” and the bundle lodged on behalf of the claimant on 29 May 2025 consisting of 96 pages – “Claimant’s Review Bundle”.
Not all documentation has been referred to within these reasons. Some documentation has been referred to or summarised where directly relevant to the findings of the Panel. However, the Panel’s reasons have been prepared in the context of all material having been considered.
The claimant suffered an earlier injury as a result of a motor accident on 1 December 2010. Dr McKechnie was consulted by the claimant in relation to neck pain arising from the accident. In a report dated 3 February 2011, the doctor stated there was minimal pathology on the cervical MRI and the claimant did not require surgery. He was advised to continue analgesics and undergo an exercise program. On 13 March 2013 the doctor recorded the claimant as suffering persistent pain in the neck radiating across the right shoulder.
Dr Endrey-Walder provided a report dated 20 March 2013. He found no clinical evidence of radiculopathy when seen almost two years prior and he thought that the previously noted right sided C5/6 disc prominence may have increased in size, possibly causing nerve impingement.
A CT scan of the neck dated 15 December 2010, noted an C5/6 annular disc bulge extending towards the right neural foramen. An MRI report of the cervical spine dated

28 February 2011 revealed a “small osteochondral bar at the C5-C6 level, with no foraminal or canal stenosis”.
A further MRI of 14 March 2013 is reported as demonstrating significant spondylotic narrowing of the right C5/6 intervertebral foramen with potential compromise to the right C6 nerve root. No disc protrusion detected and there was no canal stenosis.
The claimant was assessed by Medical Assessor Johnson in respect of the earlier motor accident and in a certificate dated 1 June 2012, the claimant was certified as suffering a 5% WPI in respect of the cervical spine. The claimant was noted to have continuing constant pain in the neck with occipital headaches and pain radiating towards the right and left shoulders over the trapezius muscle.
Following the subject motor accident, an MRI of the cervical spine of 5 February 2019 showed early degenerative changes at the C6 level with a small disc bulge. Some endplate osteophytes were noted a mild to moderate neural foraminal narrowing at the left and mild neural foraminal narrowing on the right. No significant degenerative change or disc bulge/disc protrusion was seen.
A further MRI of 31 May 2020 demonstrated discovertebral changes most marked at C5/6 with mild cord compression. There was right and potentially left C6 foraminal root compression and multilevel facet joint arthropathy with mild foraminal narrowing but no other evidence of root impingement.
There are various reports of Dr McKechnie that have been considered, both pre and post the subject accident. In a report to the claimant’s representatives dated 15 June 2024 (which the Panel observes) the doctor confirms that the claimant underwent a right C5/6 cervical foraminotomy at Sydney Southwest Private Hospital on 1 July 2020 (incorrectly referred to as 2024 by the doctor) for a history of neck and severe right arm pain. The doctor notes that an MRI prior to the surgery demonstrated a broad-based C5/6 disc protrusion causing bilateral foraminal stenosis and C6 nerve root compression, worse on the right side. The doctor notes that during the surgery, the medial part of the facet joint bone was drilled to expose and decompress the C6 nerve root.
A number of reports of Dr McKechnie are dated 19 August 2020, which appears to be an error. The Panel has therefore taken note of the stated examination dates within the reports.
The claimant was seen by Dr McKechnie on 29 May 2019 and the doctor reports a history of the motor accident. The claimant complained of neck pain with intermittent sharp pain through the arms as well as the lower back with intermittent right leg pain. At that stage, and after reviewing the MRI, the doctor stated he would like the claimant to continue with physiotherapy and medication.
At a review on 1 July 2019 the doctor noted the presence of a broad based C5/6 disc protrusion causing mild to moderate bilateral foraminal stenosis. Treatment options were discussed and a referral given for cortisone injections. Following review on 12 August 2019 it is noted the injections were unsuccessful and the claimant was still complaining of persistent neck pain radiating across both shoulders and arms. It is at this point that the claimant was offered the option of surgery. At that point, the claimant wished to continue with nonoperative treatment for a further six months.
Following review on 25 May 2020, the doctor noted the claimant had been reviewed nine months prior. The claimant is noted to have continued to experience pain in the neck which then radiated through the right shoulder and arm with distal numbness. A follow up MRI was ordered. The doctor commented: “he may now be a candidate for a right C5/6 foraminotomy as the pain is unilateral.”
Following review on 11 June 2020 the doctor noted ongoing symptoms with the MRI confirming a broad-based C5/6 disc protrusion severely compressing the right C6 nerve root and causing mild impingement upon the C6 nerve root. The surgery was offered and the claimant noted that he wished to proceed.
Following surgery, the doctor reports on11 August 2020 that on review the severe

sharp-shooting pain through the right arm had resolved and there was still occasional mild pain and numbness at times and he still has residual headache and neck pain.

General practitioner (GP) records

The notes of Bankstown Family Medical Practice are noted. These were printed on 8 May 2019, and consultation notes begin on 3 February 2014. Depressed mood and sleep issues are mentioned in the early part of these notes. On 7 April 2014 the claimant complained of headaches. No neck stiffness noted. A similar presentation occurred on 13 June 2017 and

3 October 2017.
On 24 February 2015 the claimant is noted to have had a right shoulder ultrasound and he was referred for an injection.
On 22 July 2015 back pain is noted, which was worse with movement.
Leading up to the subject accident, and throughout the consultation notes, there is no complaints of neck pain or radicular symptoms. There are regular complaints of unrelated health issues including depressive and psychological symptoms.
The claimant presented to his GP, Dr Hatoum after the subject accident he day after the subject motor accident on 9 January 2019. He noted that he was T-boned by another car and felt pain in the neck, back and shoulder. On examination the doctor noted stiffness with slight reduction in range of motion and mild tenderness in the paraspinal muscles.
He presented again on 11 January 2019 and noted that the pain was worse and he was “not coping”.
On 15 January 2019 the claimant presented with lower back pain which he had experienced before, but was not bothering him as much as the neck, with same having a constant ache. The doctor recorded muscular discomfort in the cervical spine with a feeling of a “constant buzz through the neck at C7”. He was noted to be unable to drive and he felt an intermittent sharp tingle once or twice a day.
The claimant also attended upon GP, Dr Costa, in Hurlston Park. The first consultation is noted as 1 March 2019. The notes are scant. The claimant was prescribed Targin and referred for MRI scans.
A questionnaire completed by the claimant notes neck pain at back of the head and headaches and left shoulder pain together with back symptoms.

RE-EXAMINATION

All three members of the Review Panel attended the re-examination of the claimant via audio-visual link on 14 August 2025.
Mr Mandoukos was unaccompanied.

Past history

There was a previous motor accident in 2010 in which Mr Mandoukos was a passenger. He said that it caused serious injuries, including to the chest. He said that it took him seven years to recover. It was a head-on impact.
Prior to that accident, Mr Mandoukos said his health was good and he was working as a delivery driver.
In 2011 Mr Mandoukos was assessed by Dr McKechnie. He had right arm numbness and right sided neck pain. The whole arm was said to be numb. Surgery was not recommended. Mr Mandoukos said he had a clavicular problem.
Prior to the subject motor accident Mr Mandoukos was working as a construction labourer. He said that it was heavy work.
The other past history is sleep apnoea. Mr Mandoukos said that he did not use CPAP.
Immediately prior to the subject accident Mr Mandoukos said there were some limitations in his abilities.

History of motor accident

On 8 January 2019, Mr Mandoukos was the driver of a vehicle. A vehicle turned in front of him and there was an impact to the side of the other vehicle. Airbags did not deploy.
Mr Mandoukos said that he was in “shock” with buzzing of the body. He said that it was the whole body. He does not recall hitting anything in the vehicle.
An ambulance attended and Mr Mandoukos was taken to Canterbury Hospital. Multiple symptoms including arm pain were recorded.
Several hours later other symptoms developed. There were “mild” right sided symptoms. These were the same symptoms as in the first accident. These included neck pain. [Note Dr Hatoum recorded neck pain on the next day].
The usual GP is Dr Hatoum. Mr Mandoukos said that the lawyers later directed him to Dr Costa. He went to Dr Costa because he was told to by his lawyers and he trusted them to do what was best.

Subsequent history

The symptoms persisted. After 9 to 10 months Mr Mandoukos said that the symptoms became “unbearable”. There was severe pain on movement of his right shoulder. It included symptoms of numbness in the right arm.
This caused him to consult Dr McKechnie. There were two injections to the neck that were not effective.
Dr McKechnie recommended surgery and that was done on 1 July 2020. Mr Mandoukos said that the surgery was successful and improved his symptoms.
There has been no return to work after the accident.

Current status

At present, there are neck and right arm symptoms. These are significantly better than prior to the surgery. There is pain and numbness that can be precipitated by sustained movement of the right arm.
Mr Mandoukos said that he had difficulty rotating his head to the right and this impact his driving.
Current medications are Panadeine Forte, Celebrex, Panadol Osteo.
Recently there has been hip osteoarthritis diagnosed.

Causation

The Review Panel concluded that the subject motor accident aggravated a cervical degenerative disease that was previously asymptomatic. The Panel finds that the subject motor vehicle accident materially contributed to the need for the surgery performed by Dr McKechnie.
In making this finding the Panel has had regard to the documentation that establishes the claimant suffers from pre-existing degenerative changes of the cervical spine. The Panel has noted the certification of a 5% WPI of the cervical spine by a Medical Assessor in respect of the earlier motor accident. The Panel notes the claimant attended upon Dr McKechnie in respect of the neck injury occasioned as a result of the earlier motor accident, with the surgeon not recommending surgery at that time.

Whilst there were initial complaints after the first accident in respect of the neck, there is no evidence that sufficiently persuades the Panel that the claimant was experiencing any significant cervical spine symptoms in the years just prior to the subject accident. However, the medical evidence and the history provided by the claimant to the Panel, is such that the Panel is satisfied that the motor accident caused a significant aggravation of the claimant’s pre-existing cervical spine degenerative condition. This is evidenced by consistent complaints of significant neck symptoms after the motor accident. The Panel notes the failure of the non-surgical treatment options to treat the claimant’s symptoms and has had regard to the treating surgeon’s reporting of worsening symptoms following the accident. Whilst the claimant evidently continues to complain of ongoing neck symptoms, the medical evidence demonstrates an improvement in the symptomatology following the surgery.
Having regard to the reported severity of symptoms, including radicular complaints, the Panel is sufficiently satisfied that it was both reasonable and necessary for the claimant to undergo the surgery. This is in circumstances where the claimant had pursued alternative treatment that did not alleviate his symptoms to any significant degree.

Is the surgery an “injury”

Having established the necessary precondition that the subject surgery is causally related to the subject accident, the critical determination of the Panel is whether the surgery can be considered an “injury” for the purposes of the MAI Act, and if so, whether the surgery constitutes a threshold or otherwise injury for the purposes of the MAI Act.
Injury is defined by the MAI at s1.4(1) to be:
“injury means personal or bodily injury and includes—
(a)    pre-natal injury, and
(b)    psychological or psychiatric injury, and
(c)    damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”

What constitutes “personal or bodily injury” is not further defined beyond the inclusions listed from (a) – (c).
The Panel agrees with the comments of the Panel in the matter of Bridgefoot, where it was observed that: “when a word in a statute is defined in terms of itself, then subject to the context, the Act uses the word as appearing in the definition in its natural and ordinary meaning…”
In reaching its findings, the Panel has had regard to the comments of the Court of Appeal in Mandoukos. Whilst the Court found that it was unnecessary to decide whether surgery could constitute an injury for the purposes of the MAI Act, nonetheless the Court made obiter comments that the Panel considers assists in its determination. Whilst the remarks are obiter, they are informative and have provided guidance to the Panel.
Stern JA (Leeming and Kirk JJA agreeing said at [51] – [54] the following:
1.     “Neither personal nor bodily injury is itself defined. During the hearing of the appeal senior counsel for Mr Mandoukos submitted that any detrimental alteration to a person’s body “should comfortably meet the definition of injury in the Act”. He submitted, further, that “[i]njury necessarily connotes some harm, in ordinary English language”. In this regard he relied upon the decision of this Court in Dean v Phung[2012] NSWCA 223 at [30] (Basten JA, Beazley JA (as her Excellency then was) and Macfarlan JA relevantly agreeing). There, his Honour held that, in ordinary language, “an injury is a harmful consequence”. That was in a factual context in which the dispute was whether extensive dental surgical procedures could themselves be an act done “with intent to cause injury (for the purposes of s 3B(1)(a) of the Civil Liability Act 2002 (NSW)) in circumstances in which it was admitted that treatment was unnecessary but had been presented as necessary and the plaintiff suffered from significant pain, concern and disruption of his life. It should not, in my judgment, be construed as suggesting that any harmful consequence will, itself, necessarily be an injury. Read in context, that was plainly not what his Honour was intending to suggest. His Honour went to on observe that a harmful consequence would not ordinarily be used to describe “[s]omething which is done with a therapeutic intent, that is, to prevent, remove or ameliorate a disability or pathological condition, would not ordinarily be described”: at [30].
2.     In the context of workers compensation legislation, the “ordinary sense” of the word “injury” has been held to mean “some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’”: Military Rehabilitation and Compensation Commission v May(2016) 257 CLR 468; [2016] HCA 19 at [75] (Gageler J); see also at [45] (French CJ, Kiefel, Nettle and Gordon JJ). In my judgment, whilst this definition was arrived at in a different legislative context, that understanding of the word “injury” provides guidance as to the ordinary meaning of “personal or bodily injury” in s 1.4 of the Act, at least as regards physical, as opposed to psychological or psychiatric, injury.
3.     Ultimately, the submission advanced by senior counsel for Mr Mandoukos was that the foraminotomy procedure fell within the definition of injury in the Act because:
“in circumstances where surgery brings about an alteration in the claimant’s body, and that alteration has only been brought about not through the choice of the claimant in any real sense but, but by reason of someone else having wronged them, then it is in ordinary parlance in our submission to be regarded as injury.”
4.     In circumstances in which, as here, the particular surgical procedure is not contended to have been other than reasonably necessary, and the Court was not taken to any evidence showing an identifiable detrimental impact upon Mr Mandoukos’ symptoms or functioning arising from the foraminotomy procedure, it may be doubted whether this submission should be accepted. That is particularly so given that the scheme of the Act is to provide treatment, care, compensation and financial support to those injured in motor accidents. However, having regard to my conclusions as to the ambit of the medical dispute referred to the Medical Assessor, as set out below, it is unnecessary to decide whether or not Mr Mandoukos’ contention is correct. Moreover, given that this is a matter which may ultimately turn upon a detailed factual assessment, it is undesirable for this Court to express any concluded view in circumstances in which there has not been any medical assessment of the impact of the surgery upon Mr Mandoukos.”
The Panel has taken the above to suggest that in the absence of evidence that the surgery had an identifiable detrimental impact upon the claimant’s symptoms or functioning arising from the surgery, it is doubtful that the surgery could be considered to constitute an injury for the purposes of the MAI Act.
In considering whether the surgery has had a “detrimental impact” upon the claimant’s symptoms or functioning, the Panel is not sufficiently satisfied that this has been the case. The claimant himself told the Panel that the surgery had improved his symptoms. The treating neurosurgeon, Dr McKechnie, has reported in the review consultations following the surgery that symptoms had improved. However, it is noted that the claimant was recorded as having continued neck pain, and the claimant described ongoing pain and difficulties arising from his cervical spine condition to the Panel during re-examination. Overall, the evidence establishes that the surgery has improved the claimant’s symptomatology, rather than having a “detrimental impact”.
As observed above, following the motor accident the claimant demonstrably suffered significant cervical spine pain and symptoms that had not been significantly ameliorated by conservative treatment options. The claimant came to being offered surgery which he eventually accepted. The surgery was offered clearly with therapeutic intent and has had the effect of ameliorating symptomatology, at least to an extent. It is the Panel’s view therefore that these facts suggest that the surgery performed would not fall within the definition of injury, when following the reasons of the Court in Dean v Phung[2012] NSWCA 223 as highlighted by Stern J in Mandoukos.
The Panel accepts that the surgery performed, and indeed any surgery, has the consequence of the patient having a physiological change. The Panel notes the reference to the term “physiological change” by the Court in Mandoukos at [53]. The Panel agrees that this reference to physiological change in the workers compensation case of Military Rehabilitation and compensation Commission v May (2106) 257 CLR 468; [2016] HCA 19 (May) provides guidance on the issue of whether the claimant’s surgery constitutes an injury. The Panel notes the following was found at [75] of May that:
“More than a century of teasing out the ordinary sense in which injury is used in the context of workers compensation legislation has shown that suffering an injury is not confined to “getting hurt” (an injury might be constituted by nothing more than “something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel” [80]) but that suffering an injury involves something more than merely “becoming sick” [81]. An injury, it has long been repeatedly explained, is some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not “sudden”, is at least “identifiable” [82]. The universality of that explanation has been questioned [83], and the comment has fairly been made that “a distinct physiological change is not itself an expression of clear and definite meaning” [84]. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.”
The Panel observes that the term “physiological change” is an especially broad concept and finds that whilst the term is informative in considering the definition of injury, it does not encompass the entirety of what is required to meet the definition of injury for the purposes of the MAI Act. For instance, a physiological change can include relatively simple physical changes, for example, a change in heart rate, which in and of itself would not ordinarily be accepted as being an injury. Put another way, the Panel accepts that an injury must involve a physiological change, but a physiological change per se does not equal an injury having occurred.
Whilst the Panel would agree, as found in Bridgefoot, that the words “resulting from” in

ss 3.11 and 4.1 of the MAI Act, require a causal connection between the mechanism of the motor accident and the injury, and that an injury does not necessarily need to have been occasioned at the time of the motor accident, the Panel does not make the finding that any “continuum of harm or disturbance suffered” constitutes an injury.
The Panel finds that liability must generally flow to the insurer for any consequence of the injury suffered, however any consequence of that injury would not necessarily fall within the definition of injury.
The claimant’s reference to cl 6.113 of the Guidelines is noted. This clause prescribes that when assessing impairment, the effect of the surgery is to be included in the assessment. The Panel finds, however, that impairment is not necessarily synonymous with injury. It is, a consequence of an injury. As noted above, the Panel accepts that the liability for the consequences of the injury will flow, yet the said consequences do not necessarily constitute an injury for the purposes of the MAI Act.
The Panel is of the opinion that the above is not inconsistent with the High Court’s findings in Mahony. The Court found that the original tortfeasor will be liable for the exacerbation of an injury by medical treatment. The Panel does not accept that the decision in Mahony goes as far as to establish that medical treatment undertaken due to an injury necessarily forms part of that original injury.
Indeed, as noted in Hunter, it was acknowledged that the High Court in Mahony established that “… if a plaintiff acts reasonably in seeking medical treatment for injuries sustained as a result of negligence, and is further injured by the medical treatment, the original tortfeasor will be liable for the consequences of the medical treatment. The original injury is regarded as carrying some risk that medical treatment administered by reason of it will be negligently administrated.”
In the subject matter, and as discussed above, the Panel is not persuaded by the evidence that the surgery was performed negligently or caused an additional injury. Instead, the evidence is such that the Panel is persuaded that the surgery improved the claimant’s symptoms.
The Panel also observes that its conclusions are consistent with the findings of Chen J in Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC1023 where he found at [93]: “ordinarily, an accident-related injury creates a need for treatment, but that treatment is not an “injury”, nor a “consequential injury”.
In considering the ordinary meaning of the word “injury”, the Panel is of the view that for a physiological change to be regarded as an injury for the purposes of the MAI Act, indicia would include it having arisen unintentionally, typically from an external force outside the control of the affected individual. Further, it would not be planned or deliberate, and it would have an overall adverse effect on the individual inflicted. In addition, it would not be consented to by a reasonably minded individual.
With this in mind, in respect of a surgical intervention performed with the intent of treating an injury, such step is noted to be a deliberate act, that is consented to with the explicit aim of reducing or removing a disease, symptom or loss of function. Surgery, when performed in such context, involves predictable, controlled disturbances to bodily tissue with a specific intention to avoid adverse effects of that disturbance.
In the subject matter, the step to undergo surgery was a deliberate and considered act. The claimant had been offered the surgery previously, however, chose to continue pursuing conservative treatment. After failing to achieve sufficient relief of his symptoms the surgery was offered again, and the claimant agreed and was advised of the risks and consented to the surgery. The aim of the surgery was to provide relief to the claimant from his cervical spine symptoms. The surgery resulted in an improvement of his pain and function, however, not a complete resolution of the symptomatology.

CONCLUSION

Having found the above, and in consideration of the evidence discussed above, the Panel is of the view that the referred injury: “injury to bone – facet joint – cervical spine – due to foraminotomy surgery performed by Dr McKechnie on 1 July 2020 as a consequence of injury sustained in the MVA on 8 January 2019” does not constitute an injury for the purposes of the MAI Act and therefore a determination of whether it constitutes a threshold injury is not required.
The Panel does observe, however, that in the event that the surgery was considered to constitute an injury for the purposes of the MAI Act, the removal of the bone during the surgery, would then necessarily need to be deemed a non-threshold injury. This is due to the fact that the removal of bone is outside the definition of a soft tissue injury as defined by

s 1.6 of the MAI Act.

[2025] NSWPICMP 844

31 October 2025