QBE Insurance (Australia) Limited v Tregear
[2025] NSWPICMP 413
•11 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Tregear [2025] NSWPICMP 413 |
CLAIMANT: | Benjamin Tregear |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 11 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury; lumbar spinal injury; cervical spine; C5/6 septa infusion; radiological scans identify cervical disc bulge; ongoing imaging; radiculopathy; disc protrusion at C5/6 level with irritation on the right C6 nerve root; significance of examination history; radiological imaging support claimant contention; vocal spinal discectomy and fusion; reasonable and necessary; non-threshold injury; Held – MAC confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Raymond Wallace dated 24 June 2024 the claimant sustained a non-threshold injury. 2. The following injuries caused by the motor accident: · thoracic spine, and · lumbar spine are THRESHOLD INJURIES for the purposes of the Act. 3. The following injury caused by the motor accident: · cervical spine is not a THRESHOLD INJURY for the purposes of the Act. 4. The following treatment and care: · C5/6 discectomy and fusion, and · consultation with Dr Ulla Gerich-McGregor, rehabilitation specialist RELATES TO THE INJURY caused by the motor accident 5. The following treatment and care: · C5/6 discectomy and fusion IS REASONABLE AND NECESSARY in the circumstances. 6. The following treatment and care: · consultation with Dr Ulla Gerich-McGregor, rehabilitation specialist IS NOT REASONABLE AND NECESSARY in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Benjamin Tregear (the claimant) is a 43-year-old man who was injured in a motor vehicle accident on 7 June 2022. Following the accident the claimant lodged an Application for Personal Injury Benefits and thereafter sought a concession from the insurer that he had sustained non-threshold injuries.
Following a review the insurer the insurer declined to make this concession and thereafter the claimant lodged an Application for Assessment of Threshold Injury. The claimant was examined by Medical Assessor Raymond Wallace on 24 June 2024 who, in a certificate dated 8 July 2024, determined that the claimant had sustained a non-threshold injury and that the disputed treatment and care relates to the motor vehicle accident and is reasonable and necessary.
Following this the insurer sought a review of this determination which was considered by President’s delegate, Tajan Baba who, in a decision dated 28 October 2024 determined that as a consequence of the Medical Assessor’s failure to engage in an issue/substantive argument raised by the insurer there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
Thereafter the matter was referred to this Medical Review Panel (Panel).
The Panel met on 12 February 2025 at 4.00pm at which point it was noted that whilst the material before Medical Assessor Wallace was now before the Panel radiological scans were required. It was further noted that there it is appropriate that the claimant would be re-examined once the scans have been uploaded.
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 claimant was examined by Medical Assessor Margaret Gibson on 28 April 2025. The claimant attended accompanied by his partner Lara. They had arrived 30 minutes late for the assessment as they had been given an incorrect appointment time.
PAST MEDICAL HISTORY
The claimant said that prior to the subject accident he had experienced some intermittent "niggly" pains in his neck and low back for which he had received chiropractic and osteopathic treatment. He had a scan of his low back in 2018 on the recommendation of his osteopath at Foundation Health (Mullumbimby Medical Centre). He said that around that time he had about six weeks of physical therapy.
In 2020 he had an MRI scan of his upper back and cervical spine on referral from the osteopath. This apparently demonstrated no disc pathology. Around this time he had another four weeks of osteopathic therapy.
So far as he could recall, he had only taken paracetamol as required for any episodes of neck or back pain.
He injured his left knee in 2015. He had an arthroscopy to debride the meniscus but his knee was then "good after that".
He said by the time of the subject accident he was taking no regular medication and had no ongoing neck or back symptoms.
RELEVANT PERSONAL DETAILS
The claimant had been working as a musician for the last 10 years and a sound therapist for over 15 years. He said he uses a "sound bed" when providing the sound therapy. He described operating the sound bed by sitting cross-legged on the ground and reaching under the instrument to operate the strings. He said the bed weighs between 30 and 40kg and he has a wheel frame to move it about. He said about 80-90% of the time it remains in the same location, but he was moving it to other locations every few weeks.
However, since the subject accident he has not been able to perform any sound bed therapy.
He has played guitar on several occasions.
He said he also has a leather accessories business which he runs online and uses a sales agent in Sydney. He said he has done some of this work since the accident.
He and his partner live on an acreage in Federal in New South Wales. He said prior to the accident he was working on the property, but has not been able to manage this since. In December 2024 the insurer had provided some land care and maintenance support.
HISTORY OF THE SUBJECT ACCIDENT
The claimant was the seat-belted driver of a Nissan Elgrand people mover van. He had no passengers at the time. He was driving from his home in Federal to Byron Bay, he had left home about eight minutes before. The trip would normally take about 20 minutes.
He was travelling along Coolamon Scenic Drive, which is a curving road. He had rounded a corner when a B-double truck came from the other direction and the rear trailer veered across the centre line and struck the driver’s side of his van. His van was then pushed towards the steel barrier fence on the side of the road. Air bags had not deployed as there was no front end impact.
Mr Tregear said that after the accident he sat on the side of the road and contacted his partner. The truck driver stopped ahead and came to assist. Police and ambulance attended.
The ambulance report noted:
“CT 40yo M pt MVA mini van vs semi truck side swipe. 0/A pt walking down side of road with driver of other vehicle. Pt walking normally, alert and having conversation. Pt states was driving along road and a truck took the corner too tight cutting across his lane and side swipped his vehicle. Pt recalls entire event, self extracted, GCS 15, neck pain 4/10 radiating to R shoulder (declined pain relief for injury), sand bags used as reminder not to move neck. nil arbag deployment but were fitted, road speed 60kph but pt states not going nearly that speed, seat belt worn. no sudden decelerations. All other observations within normal range for pt.”
POST ACCIDENT TREATMENT
He was conveyed by ambulance to Byron Bay Hospital. He was fitted with a soft collar. A CT scan was done of this cervical spine and he was then fitted with a hard collar before transfer to Tweed Heads Hospital for an MRI scan.
After the MRI scan was reviewed he was then advised that he could leave the hospital, this was several hours later. He was a bit puzzled that he was let go, as he was still experiencing a lot of neck pain, particularly right-sided with pain spreading to his right shoulder. There was also pain over the right shoulder and also his right hip and there was left-sided back pain extending to the left greater than right thigh. He was given Panadeine Forte for pain.
The discharge summary from Tweed Hospital noted:
“40 yr old man transfer from Byron ED post MVA with neck pain. Had CT neck which showed C5/6 disc bulge and some thecal sac narrowing. Transferred to Tweed for MRI spine after Neurosurgical advice. MRI spine - showed no acute traumatic injury …Was rediscussed with neurosurgical team GCUH who were happy with GP follow up , no neurosurgical intervention or follow up required. No injuries on tertiary survey. Mobilised well. Plan: D/C home. Regular paracetamol / ibuprofen. Heat or cold packs to aching muscles. GP follow up. Return to ED if worsening pain/weakness to limbs or other concerns.”
There was also imaging of chest and thoracic spine which showed no abnormalities. CT scan cervical spine had shown “There is no acute cervical injury noted. Disc bulging at the C5-6 level abuts the cord and narrows the thecal sac.” MRI scan showed:
“No evidence for vertebral compression fracture or marrow contusion. No prevertebral haematoma or collection. No spinal cord injury. Multilevel mild to moderate degenerative changes in the cervical spine most prominent at C5-6 level with right foraminal narrowing and mild canal narrowing with mild neural compression as described.”
The claimant had subsequently come under the care of his general practitioner and his osteopath. He said as the days and weeks went on, the pain extending into his right arm increased in intensity and became very severe. He described pain spreading over the top of the right shoulder into the lateral aspect of his arm and forearm and the ulnar three fingers. Over the ensuing weeks and months, the right hand became tingly and numb at times.
His general practitioner, Dr Khanna, on 9 June 2022 had noted motor vehicle accident with injuries and pain, psychological distress/flashbacks, motor vehicle accident two days ago, complaints of upper neck pain, bilateral shoulder pain, thoracic and lumbar back pain, bilateral hip pain and pain down back of left greater than right leg.
The claimant was referred to neurologist, Dr Krishnamurthy.
He said he was eventually taking large doses of Targin, pregabalin, Panadeine Forte and
diazepam to manage the pain. He said he "never had pain like that before."He was eventually referred to neurosurgeon, Dr Sergides. On 8 October 2024 Dr Sergides performed anterior cervical discectomy and C5/6 fusion at North Shore Private Hospital.
The claimant said there was significant improvement in his symptoms following this procedure. He had a telehealth consultation with the doctor about six weeks postoperatively but then no other reviews were planned unless required.
He continued to have weekly osteopathy and physiotherapy. He said he has not taken any medication for over six weeks.
He has been referred to a pain specialist at Physio Plus in Lismore and the appointment is scheduled for next week.
CURRENT COMPLAINTS
The claimant said the neck pain is now negligible. On further clarification, he said there is now no neck pain. He said the pain in the arm is now gone. The numbness in his right hand is reducing. His right shoulder is "okay." His upper back is "okay."
There is an occasional “niggle” of pain in his lower back, and some discomfort over the posterior aspect of his left greater than right thigh. His left hip is now "okay”.
PHYSICAL EXAMINATION
The claimant was 193cm tall and weighed 106kg. He is right-handed. He had a normal gait.
On examination of the cervical spine, there was a 6.5cm well healed surgical scar anteriorly. There were no suture marks. There was minimal colour contrast.
Neck movements were very cautious. Flexion and extension one-third normal. Lateral flexion and rotation were negligible. There was no muscle spasm or guarding.
On examination of the upper limbs, circumferential measurements of the arms were 35cm bilaterally and forearms measured 32.5cm on the right and 32cm on the left. There were normal reflexes, power and sensation apart from some reduced sensation over the lateral right forearm and the ulnar fingers.
On examination of both shoulders, movements were as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
140°
140°
Extension
40°
40°
Internal Rotation
50°
70°
External Rotation
80°
90°
Abduction
150°
150°
Adduction
50°
60°
On examination of the upper back, there was no tenderness. Rotation was to three-quarters normal range bilaterally. There was no asymmetry, muscle spasm or guarding.
On examination of the lower back, there was slight tenderness over the lower lumbar spine. Flexion and extension were to half-normal range, lateral flexion was to two-thirds normal range bilaterally, rotation was to three-quarters normal range bilaterally. There was no asymmetry, muscle spasm or guarding. Straight leg raise was 50° bilaterally. Sciatic stretch was negative.
On examination of the lower limbs, circumferential measurements were 48cm bilaterally at the thighs, and maximal calf girth was 41cm bilaterally. There was normal power, sensation and reflexes bilaterally.
On examination of both hips, there was no specific tenderness. Active movements were as follows:
Hip movements
Right
Left
Flexion
120°
120°
Internal Rotation
50°
40°
External Rotation
40°
30°
SUMMARY
Mr Tregear was injured in the subject accident on 7 June 2022. There was early evidence of complaints to his general practitioner, Dr Khanna, on 9 June 2022 of neck pain, upper and lower back, bilateral shoulder pain and bilateral hip pain. The claimant has suffered a non-threshold injury at his cervical spine. He has a Musculo-ligamentous strain and a dispersion at the C5/6 level with irritation on the right C6 nerve root. As a result of this injury, the claimant has undergone a discectomy and fusion at C5/6 of his cervical spine.
Mr Tregear was injured in the subject accident on 7 June 2022. There was early evidence of complaints to his general practitioner, Dr Khamma, on 9 June 2022 of neck pain, upper and lower back pain, bilateral shoulder pain and bilateral hip pain. The claimant has suffered a non-threshold injury at his cervical spine. He has suffered a musculoligamentous and a disc protrusion at the C5/6 level with irritation on the right C6 nerve root. As a result of this injury, the claimant has undergone a discectomy and fusion at C5/6 of his cervical spine. This surgery conducted on 8 October 2024 has led to a significant improvement in his symptoms. The requirement for the discectomy and fusion and associated consultations with Dr Gerich – McGregor can fairly be attributed to the subject motor vehicle accident. That is in the view of the panel requirement for the surgery was caused by the motor vehicle accident and the surgery the claimant has undergone is reasonable and necessary in the circumstances. It has benefited the claimant.
The Panel is not swayed by the submission of the insurer that a complaint of neck pain on 5 February 2020 (some two and a half years pre-motor vehicle accident) is reflective of a significant pre-existing cervical spine condition. The panel is satisfied that the material before it bears out dispersion at C5/6 which, in the immediate post-accident period, caused the claimant significantly disabling pain and symptoms.
The Panel is not convinced that the note on the discharge summary from the Tweed Hospital which stated “no acute traumatic injury" and that "no neurosurgical intervention or follow-up was required" would prevent the claimant condition from being monitored and re-evaluated noting the significant ongoing symptoms and subsequent radiological investigations.
This surgery, conducted on 8 October 2024, has led to a significant improvement in his symptoms. The requirement for the discectomy and fusion can fairly be attributed to the subject motor vehicle accident.
That is in the view of the panel requirement for the surgery was caused by the motor vehicle accident. The surgery the claimant has undergone was reasonable and necessary in the circumstance. It has benefited the claimant.
The proposed treatment from Dr Ulla Gerich-McGregor, rehabilitation specialist, is in respect to proposed treatment being a corticosteroid injection at his cervical spine to alleviate his symptoms. The panel notes the need for such treatment for pain relief and enhancing range of motion has been overtaken by events that surgery has occurred. Thus, whilst the treatment may have been reasonable and necessary prior to surgery it is no longer appropriate or needed.
CONCLUSIONS
The Panel finds that the claimant has sustained a non-threshold injury consequent on the injury he sustained to his cervical spine.
The Panel considers that the treatment that the claimant has undergone and being the C5/6 discectomy and fusion relate to the injury caused by the accident and was reasonable and necessary in the circumstances. The Panel further notes that the treatment has led to a significant improvement in the claimant’s symptoms.
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