Insurance Australia Limited t/as NRMA Insurance v Rababi
[2025] NSWPICMP 744
•26 September 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Rababi [2025] NSWPICMP 744 |
CLAIMANT: | Jamil Rababi |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Paul Curtin |
MEDICAL ASSESSOR: | John Giles |
DATE OF DECISION: | 26 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute; review of Medical Assessment Certificate (MAC); original Medical Assessor found skin abrasion and scarring of the right wrist to be a non-threshold injury; Review Panel noted claimant to have pre-existing Erbs Palsy since birth; at re-examination claimant alleged his Erbs Palsy was essentially asymptomatic at the time of the motor accident; Review Panel noted abrasion to right wrist could not have aggravated, exacerbated or accelerated pre-existing Erbs Palsy; documented complaints confined to a superficial abrasion injury which has healed with minimal scarring; nil neurological complaints of the right wrist or forearm; Review Panel re-examined and found loss of sensation at abrasion site identical to entire right forearm; Held – right wrist and subsequent scarring satisfied the definition under section 1.6(2) of soft tissue or threshold injury; Court of Appeal judgment in Allianz Australia Insurance Limited v Estate of the Late Summer Abawi applied; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Michael McGlynn dated 2. Determines that the following injuries caused by the motor accident: · right wrist – abrasion and subsequent scarring, is a threshold injury for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
Jamil Rababi (the claimant) was involved in a motor accident on 10 November 2022. He was driving his vehicle on a road when a vehicle exiting from a petrol station collided with the left (passenger) side of his vehicle.
He says he sustained an eye injury, a fractured left rib as well as other musculoskeletal injuries. He also says he suffered a broken nose and an abrasion at the back of his right hand. The abrasion is claimed to have resulted in scarring.
He made a claim for statutory benefits with Insurance Australia Limited t/as NRMA (the insurer), the third-party insurer of the vehicle that he says caused the motor accident.
A medical dispute arose about whether the claimant’s injuries were threshold or non-threshold injuries and the matter was referred to the Personal Injury Commission (Commission) for medical assessment.
On 2 April 2025, Medical Assessor Michael McGlynn issued a certificate of assessment which found the claimant’s scarring right hand to be not a threshold injury.
The insurer subsequently lodged an application with the Commission seeking review of the Medical Assessor’s decision. This was allowed by the President’s delegate (Ms Ratula Gupta) and this Review Panel (Panel) was convened to conduct the review.[1]
[1] Section 7.26(5) of the MAI Act.
RELEVANT PROVISIONS
Threshold injury
Under the Motor Accident Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages.[2]
[2] As the accident occurred before 1 April 2023 statutory benefits were only paid for up to 26 weeks.
For physical injuries, a threshold injury is defined as a “soft tissue injury”.[3]
[3] Section 1.6(1) of the MAI Act.
A “soft tissue injury” is defined as:
“An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, facia, 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.”[4]
[4] Section 1.6(2) of the MAI Act.
A soft tissue injury includes an injury to a spinal nerve that manifests in neurological signs (other than radiculopathy).[5]
[5] Section 4(1) of the Motor Accident Injuries Regulation 2017.
It is not necessary to set out the radiculopathy provisions as the dispute before the present Panel does not involve an injury to a spinal nerve.
Causation
The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes. [6]
[6] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
Clauses 6.6 and 6.7 state:
“6.6 Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following”
1.The alleged factor could have caused or contributed to the worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 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.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor McGlynn for assessment:
· broken nose and scarring.[7]
[7] Also taken to be the injuries referred to the present Panel.
The claimant stated that he feels his nose looks different following the accident. He says this was due to the nose bridge bump and palpable indentation on the nose bridge. He sometimes also feels nasal “congestion”.
He is conscious of the brown scar on the back of his right hand at the site of an abrasion sustained in the accident.
His major symptoms are related to what he described as paralysis of his right upper extremity and tingling discomfort in the right lower extremity.
On examination, the Medical Assessor found no visible deformity of the nose or nose bridge. The nasal septum was midline with no anatomical nasal airway obstruction.
At the top of the right hand, there were two patches of variable pigmentation measuring 25mm x 8mm and 13mm x 2mm. The Medical Assessor noted abnormal pigmentation which caused some colour contrast but there was no contour defect, no visible suture marks, no trophic features and no scar adherence.
The Medical Assessor reviewed the documentation and was not satisfied that the claimant sustained a fractured nose as a result of the accident. The Medical Assessor accepted that the accident caused a superficial abrasion to the right wrist which resulted in visible scarring.
The Medical Assessor considered the superficial skin abrasion of the right hand to be a non-threshold injury. The Medical Assessor considered himself bound by what was held in the Supreme Court in the decision of Allianz Australia Insurance Ltd v The Estate of the Late Summer Abawi.[8]
[8] [2024] NSWSC 1245 (4 October 2024).
SUBMISSIONS
Insurer
The insurer submits that the St George Hospital clinical record reported no facial bone injury, no paravertebral tenderness, bruising or lacerations. The insurer considered there to be no evidence to suggest the claimant sustained a broken nose or lacerations requiring stitches. The insurer therefore submits that the nose injury is not causally related to the motor accident.
In relation to the right wrist injury, the insurer says there is no evidence that the claimant sustained an injury to any nerves or that there is a complete or partial rupture of tendons, ligaments, menisci or cartilage.
The insurer submits that the Supreme Court’s decision in Abawi has since been overturned by the Court of Appeal in Allianz Australia Insurance Limited v Estate of the Late Summer Abawi (Abawi).[9] The effect of that decision is that skin injuries without nerve damage are threshold injuries.
[9] [2025] NSWCA 85.
Claimant
The claimant refers to his Application for Personal Injury Benefits form dated 5 July 2023 where he claimed his head collided with the internal pillar of his car at the time of the accident. His listed injuries included “broken nose, scarring…”
The claimant refers to the ambulance records which recorded “Abrasion noted to the right wrist”.
The claimant acknowledges the Court of Appeal decision in Abawi but says there are no material errors in the Medical Assessor’s decision based on the case law at the time.
The claimant notes the insurer’s submission that the decision of Medical Assessor McGlynn should be referred back to the Commission for re-examination, particularly as the medical records fail to suggest that the claimant has sustained any nerve damage as a result of the laceration to his right hand.
DOCUMENTATION
On 25 June 2025, the Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. The Panel advised that unless documents are uploaded to the Review file, the Panel will not be able to read and consider those documents.
Both parties duly responded with the insurer’s bundle comprising of pages 1-285 and the claimant’s bundle comprising of pages 1-8. The Panel noted that the insurer’s bundle contained the documentation relied upon by the claimant in his original application, which included submissions that are summarised above.
The Panel has read and discussed the documentation with the relevant material referred to in the Panel’s re-examination report and Panel’s findings below.
RE-EXAMINATION REPORT
The Panel determined that the claimant be re-examined by Medical Assessor Giles. The re-examination report is as follows:
“Jamil RABABI
Date of Accident: 6 August 2023
Examination conducted by: Dr John Giles in the presence of support person, Jawad Ali.
Date of Panel re-examination: 10 September 2025
History
Mr Rababi was involved in a motor vehicle accident on 10 November 2022 when, while driving, a car pulled out of a service station and collided with the left side of his vehicle. He was wearing a seat belt at the time of the accident and did not lose consciousness. The other driver was killed.
He was helped out of his vehicle and an ambulance was called. When examined, his Glasgow Coma Score was 15/15, he complained of a temporal headache, pain in his left anterior ribs, his left hip and his right wrist. An abrasion was noted on his right wrist, but there was a good range of movement and no obvious deformity. Specifically, there was no laceration on his right hand or wrist.
He was taken to St George Hospital where an X-ray of his wrist did not show any acute fracture or malalignment. After being observed overnight, he was discharged.
At the time of the accident, he was self-employed, working as a contracted sales manager for a cosmetic clinic. He has not worked since the accident.
Mr Rababi was born with a right sided Erb’s palsy, an upper brachial plexus injury, with poor function in his right upper limb. However, he said, it had improved so that, at the time of the accident, he had normal feeling in the limb and he could do everything with the arm apart from being able to raise it above his head. After the accident, he alleges, the condition of his arm slowly deteriorated over about a six month period, so that he can no longer use it.
Current symptoms
Mr Rababi complained of the appearance of a patch of skin discolouration on the dorsum of his right hand which, he said, is a constant reminder of the accident. He also complains of a lack of sensation on the dorsum of his right hand but it is exactly the same as an alleged loss of sensation on his right forearm.
He obviously has serious psychological problems and has been diagnosed by Dr Christopher Canaris, Consultant Psychiatrist, as having a post-traumatic stress disorder. He will no longer drive, as he gets very anxious in a car, he has not worked since the accident, he cannot live by himself and he is now being cared for by his friend. He has had two sessions with a psychologist but he is waiting for the NRMA to approve more treatment.
Findings on clinical examination.
On examination, Mr Rababi was a pleasant, young man of Lebanese extraction with an olive complexion and black hair. He was sitting with his fingers clenched and only extended them with, what he said, great difficulty. There was atrophy of his right arm with little movement except limited movement in the hand, clinical findings consistent with the known history of Erb’s palsy. He also alleged that he had lost all feeling in his right forearm and hand, apart from at the very tip of his fingers. When tested, he said that he had no feeling on the back of his hand and this was exactly the same on his forearm.
I noted one small, extremely poorly defined area of discolouration, measuring 2 X 1 cm, over the proximal end of the second metacarpal, on the dorsum of his right hand. I did not see a second patch of discolouration as described by Dr McGlynn in his report.
How he held his hand.”
FINDINGS
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.[10]
[10] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[11]
[11] Section 7.26(7) of the MAI Act.
The Panel notes the above re-examination report of Medical Assessor Giles. The Panel reconvened on 17 September 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis and causation
Broken nose
The Panel notes the claimant’s report of head strike on pillar which was also recorded in the ambulance report. There was, however, no record of any injury to the nose in either the ambulance report of the St George Hospital’s notes. The hospital discharge referral specifically states “No facial bone injury”.
The Panel therefore does not accept that the claimant suffered a broken nose caused by the motor accident.
Abrasion right wrist with subsequent scarring
The hospital discharge referral indicates an abrasion of the right wrist on the radial side which was mildly tender.
The Panel therefore accepts that the abrasion to the skin on the dorsum of the claimant’s right hand with subsequent scarring was caused by the motor accident.
Threshold injury
Abrasion right wrist with subsequent scarring
The Panel considered the claimant’s history given to the Panel that his right sided Erb’s Palsy, present since birth, had improved so that at the time of the accident he had normal feeling in the limb and could do everything with the arm apart from being able to raise it above his head.
The claimant further stated that after the accident, the condition of his arm slowly deteriorated over about a six-month period, so that he can no longer use it.
The Panel noted that the hospital discharge referral, being a contemporaneous account to the accident, only referred to an abrasion of the right wrist that was mildly tender. There was good grip strength with sensation being intact bilaterally. There was limited movement of the right shoulder but this was noted to be due to a previous injury. The certificate of capacity / fitness, dated the day after the accident, does not refer to any loss of sensation or function. In addition, there was no structural damage or fracture to the right wrist in the X-ray taken on the day of the accident.
The application for personal injury benefits completed in July 2023, some eight months after the accident, made no reference to any exacerbation of pre-existing Erb’s Palsy, only referring to “extended damage to [his] right arm and wrist”. The Panel felt this was a general description of the alleged injury and does not correlate with the loss of sensation in the right arm and wrist, to the extent that he is unable to use it when assessed at the time of the Panel’s assessment.
The Panel formed the view that if the condition of the claimant’s arm had slowly deteriorated so much that he could no longer use it, there ought to be some record of the symptoms in the hospital notes or in the GP notes in the six months following the accident, being the time that the claimant alleged the condition had deteriorated. Neither the claimant’s submissions nor the clinical notes on file point to any such deterioration.
Turning to the actual abrasion of the wrist, the Panel noted its clinical findings that the lack of sensation on the back of his hand (at the location of the abrasion) was exactly the same as the loss of sensation on the claimant’s forearm. The Panel was of the view that the abrasion, which was superficial in nature and did not result in any significant scarring, could not have caused the systemic loss of function and sensation in the entire forearm.
The Panel therefore finds that the abrasion to the right wrist is a soft tissue injury that would have healed within days or weeks of the accident. The Panel was of the view that there was no nerve involvement and the evidence does not support any accident-related aggravation, acceleration or exacerbation of the pre-existing Erb’s Palsy. In making this finding, the Panel was comfortable that its findings were consistent with that held by the Court of Appeal in Abawi.
The lack of evidence regarding the alleged deterioration of the claimant’s right upper limb to the extent that he can no longer use it does however trouble the Panel. The claimant may wish to obtain a report from a neurologist to help determine the aetiology of the condition which may assist with his treatment options.
CONCLUSION
The claimant’s injuries caused by the motor accident are threshold injuries.
The Panel acknowledges that the decision of Medical Assessor McGlynn may have been correct, at least in a legal sense, at the time it was made as it sought to comply with the findings of Justice Griffith that an injury to the skin is not a soft tissue injury.
However, the Panel must make findings based on the law as it is at the time of its assessment and as such, the decision of Medical Assessor McGlynn must be revoked.
A new certificate is issued at the front of these reasons.
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