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Beyond soft tissue: a claimant’s victory in establishing a non-threshold lumbar injury in Farsad v QBE Insurance (Australia) Limited [2025] NSWPICMP 311

Published on August 1, 2025 by Aleisha Nair

The threshold injury test under the Motor Accident Injuries Act 2017 (NSW) (MAIA) remains one of the most significant gatekeepers for claimants seeking statutory benefits beyond 52 weeks or pursuing common law damages. For many injured people, having their injuries classified as “non-threshold” can mean the difference between short-term assistance and long-term financial stability, particularly if the injury affects their ability to work or perform daily activities.

In this context, the recent decision of the Personal Injury Commission (PIC) in Farsad v QBE Insurance (Australia) Limited [2025] NSWPICMP 311 offers crucial guidance on how injuries to spinal discs, often the subject of complex causation arguments can, and should, be correctly recognised as non-threshold injuries.

Understanding threshold v non-threshold Injuries

Under section 1.6(2) of the MAIA, “a complete or partial rupture of tendons, ligaments, menisci or cartilage” does not constitute a soft tissue injury and is therefore considered a non-threshold injury. This distinction is vital because injuries that meet the threshold test restrict access to long-term entitlements, while those that exceed it unlock broader compensation rights.

Importantly for many claimants with spinal injuries, intervertebral discs are cartilaginous structures. When those discs are herniated or ruptured whether through direct trauma or aggravation of pre-existing pathology, the injury may constitute a partial rupture of cartilage. That, in turn, meets the definition of a non-threshold injury under the Act.

Background

The claimant in Farsad was involved in a motor vehicle accident on 27 July 2023, sustaining multiple injuries including to her lumbar spine. The accident involved a significant side-impact collision. Following the accident, the claimant developed lower back pain which, over time, became more defined and progressed in a pattern consistent with spinal injury.

The matter proceeded to the PIC for a threshold injury dispute. Initially, the Medical Assessor determined that the claimant’s injuries including to her lumbar spine were threshold injuries only. Key reasons included the absence of documented lumbar symptoms at the hospital on the day of the accident, a delay of nearly a year before MRI investigations were undertaken, and the lack of objective radiculopathy signs at the time of the assessment.

Arguably, these are familiar findings – a reflection of a rigid approach to causation that overlooks the natural evolution of spinal injuries and the reality that symptoms particularly in disc injuries, often emerge or worsen days or weeks after the initial trauma. Recognising the insufficiency of the original assessment, the claimant sought a review.

The Review Panel’s decision

The Review Panel overturned the original Medical Assessor’s opinion and accepted that the lumbar spine injury was, in fact, a non-threshold injury. The reasons highlight the importance of holistic medical reasoning and careful consideration of how trauma interacts with pre-existing vulnerabilities.

Key findings from the Panel included:

Biomechanical plausibility: the side-impact collision was consistent with axial and torsional forces known to cause or aggravate lumbar disc pathology. This type of force has a recognised medical basis for causing disc herniation, especially in someone with pre-existing degeneration.

Pre-existing vulnerability: the claimant had known degenerative changes in the lumbar spine. Far from defeating her claim, the Panel acknowledged that these changes made her spine more susceptible to injury from trauma. This aligns with longstanding principles in personal injury law namely, the ‘eggshell skull’ rule that a defendant must take a claimant as they find them.

Symptom evolution: the Panel accepted that the absence of lumbar complaints in the immediate aftermath of the accident was not determinative. Lumbar disc symptoms can develop or become apparent in the days following trauma. In this case, the claimant complained of sacroiliac tenderness to her GP within a week, indicating the beginning of spinal involvement.

Radiological evidence: a key turning point was an MRI conducted in August 2024, which revealed a left L4/5 disc protrusion with foraminal narrowing. While the insurer attempted to argue that this was unrelated to the accident, the Panel found the imaging was consistent with new symptoms and indicative of disc herniation caused or aggravated by the accident.

Error by original Assessor: the Panel found that the original Medical Assessor failed to give sufficient weight to the emergence of new radicular features, the evolution of symptoms, and the distinction between pre-accident and post-accident clinical presentations.

The Panel confirmed that intervertebral discs are cartilaginous structures. Thus, a herniation which necessarily involves a partial rupture of disc cartilage falls outside the scope of a “soft tissue injury.” Accordingly, the disc injury met the non-threshold criteria under section 1.6(2) of the Act.

The outcome and its importance

The Review Panel’s decision had significant consequences for the claimant. Because the lumbar injury was accepted as a non-threshold injury, she became entitled to ongoing statutory benefits beyond 52 weeks. She also retained the right to pursue a common law damages claim for pain and suffering and economic loss.

This decision is more than a technical win. For the claimant, it means access to continued treatment, income support, and the opportunity to be properly compensated for her loss.

Why this case matters for claimants

For those of us acting on behalf of injured claimants, Farsad underscores two vital points:

• Disc injuries are not necessarily threshold injuries, even in the absence of radiculopathy at the time of initial assessment. The tearing or herniation of spinal discs due to their cartilaginous nature can and should be properly recognised as a non-threshold injury under the Act.
• Review panels are important. If an initial assessment does not consider all relevant factors, including imaging, symptom progression, and biomechanical forces, claimants should have the opportunity to contest the finding.

The Panel’s findings also align with previous authority, including QBE Insurance (Australia) Limited v Azar [2024] NSWPICMP 701 (9 October 2024) and the Supreme Court decision in Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014. These cases collectively reinforce that the correct application of the MAIA demands attention not just to symptoms on the day, but to the trajectory of the injury, its medical underpinnings, and its real-world impact on claimants. Claimant solicitors should advocate for evidence-based assessments that accurately reflect the lived experience of injury and uphold the purpose of the MAIA.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you. If you or a loved one have been injured, use our Personal Injury Claim Check now.

Disclosure and important note: This article is based on our own legal research and thinking. Some of its content has been generated with the assistance of artificial intelligence. The authors have checked and approved this article, including the AI generated content, for publication.