FERNANDO v INSURANCE AUSTRALIA LTD T/AS NRMA

……………………………….. Senior Member M Hyman REASONS FOR DECISION

Introduction 1. This decision is about whether benefits should be paid by an insurer to a person injured in a motor vehicle accident (the accident or the subject accident). The applicant, Ms Sumali Fernando, (the applicant, or identified by name) was injured in a motor vehicle accident on 19 April 2022. She applied under the Motor Accident Injuries Act 2019 (the MAI Act) for defined benefits. The insurer, NRMA, (the respondent, or the insurer) accepted liability for injuries sustained in the accident.

2. In matter MAI 8/2024, Ms Fernando sought approval for cervical fusion surgery on her spine. The insurer rejected the surgery as not reasonable and necessary in the circumstances and affirmed that decision on internal review. On 25 October 2024, Ms Fernando applied to this tribunal under section 192 of the MAI Act for review of the insurer’s decision.

3. In matter MAI 2/2025, Ms Fernando’s income replacement benefits were reduced to zero on the basis that her inability to work did not arise from an injury caused by the accident. The respondent confirmed that decision on internal review, and once again Ms Fernando applied to this tribunal for review of the respondent’s decision.

The hearing

4. The two matters were heard together on 30 September 2025. The applicant was represented by J Reid of Maliganis Edwards Johnson and the respondent by J Iliopoulos of Meridian Lawyers. The hearing proceeded by way of final submissions only, section 197 of the MAI Act limiting the evidence in the proceedings to that available to the respondent at the time of the decision under review, and any subsequently admitted by the Tribunal.

5. The material made available to the Tribunal for the purposes of the hearing comprised the documents assembled by the respondent in the course of dealing with the applicant, with additional documents supplied by the applicant (the I-documents, I–1 to I–39; I–1 to I–15 are sequentially paginated, pages 1–614; I–16 to I–39 are each separately paginated or in some cases are unpaginated), supplementary documents filed by the respondent (SI–1 to SI–7, pages 1–42) and written submissions by the applicant and the respondent (both dated 29 September 2025).

The issues

6. Section 193 of the MAI Act provides that the tribunal’s review of the respondent’s decisions is “on a question of law or fact”, so that the issue for decision for the Tribunal when deciding an application under the MAI Act is always whether the decision (or decisions) under review was affected by an error of law or fact. For present purposes it is convenient to unpack that question and identify the issues for decision by the Tribunal as: (a) whether the conclusion by the respondent that the applicant’s spinal condition was not a result of the accident was, or was materially affected by, an error of law or fact; (b) whether the decision that spinal fusion surgery was not reasonable and necessary was affected by an error of law or fact; and (c) whether the decision that the applicant was not entitled to income replacement benefits was affected by an error of law or fact.

7. If the injury for which the applicant is seeking surgical treatment was not caused by the accident, then she is not entitled to the treatment and care benefits sought (that is, to have the spinal surgery paid for by the insurer); and if that same injury is preventing her from working she is not entitled to income replacement benefits, in respect of that injury. And if the accident did not cause the injury in question, whether the proposed surgery was reasonable and necessary would not arise. The question of causation is therefore central to both matters.

The legislative framework

8. The MAI Act establishes a scheme to simplify motor accident insurance in the ACT and 1 make it easier to navigate. A Motor Accident Injuries Commission is established by the

1 MAI Act, s 6 2 Act, its functions including the supervision of the scheme, the regulation of insurers and 3 issuing, monitoring and reviewing MAI guidelines provided for in the Act.

9. A person who suffers a personal injury as a result of a motor accident in the ACT is 4 entitled to defined benefits, which include income replacement, medical treatment and 5 care, quality of life benefits, death benefits and funeral benefits.

10. Section 110 defines treatment and care, which includes medical treatment, mental health treatment and pharmaceuticals; section 112 says that a person injured in a motor accident is entitled to treatment and care expenses; section 113 states (so far as is relevant): 113. Meaning of treatment and care expenses—ch 2 In this chapter: treatment and care expenses, for a person injured in a motor accident— (a) means expenses incurred by the injured person in providing for the injured person’s treatment and care; but (b) does not include expenses incurred for treatment and care— (i) that was not reasonable and necessary; or Note Section 120 deals with deciding whether treatment and care is reasonable and necessary. (ii) that did not relate to a personal injury sustained in the motor accident; or (iii) for which the injured person has not paid and is not liable to pay. Example—par (iii) nursing care or domestic services provided by a domestic partner or parent on a gratuitous basis

11. In assessing whether treatment and care is reasonable and necessary, the insurer must consider matters such as the circumstances of the injured person, whether the treatment relates directly to an injury sustained in the accident, whether the treatment is appropriate and will benefit the person, the appropriateness of the treatment provider, the 6 cost-effectiveness of the treatment, and the MAI guidelines. In assessing the injured person’s treatment and care needs, the insurer may arrange for the person to attend a

2 MAI Act, pt 1.3 3 MAI Act, s 25 4 MAI Act, s 38 5 MAI Act, s 33 6 MAI Act, s 120 health practitioner for assessment; the injured person must comply with such an arrangement provided it is reasonable (and if the injured person does not comply the 7 insurer may suspend some benefits).

12. An injured person’s treatment and care may be coordinated through a recovery plan 8 prepared by the insurer. A recovery plan must be developed where the injured person is unable to resume normal activities after the accident, and must be the subject of 9 consultation between the insurer and the injured person. The plan must set out the 10 treatment and care that is reasonable and necessary and approved by the insurer. If the injured person does not follow the treatment and care set out in the plan, the insurer may suspend their benefits. The MAI guidelines may provide for detail about recovery plans 11 and their operation. The injured person may seek the insurer’s approval for treatment and care not in their recovery plan, and the insurer is only liable for the cost of such treatment and care if it approves the treatment and care so sought; it may approve such additional treatment and care if satisfied that it is reasonable and necessary and would 12 assist the injured person’s recovery.

13. Part 2.4 of the MAI Act deals with income replacement benefits. A person over 15 years of age and in paid work or capable of being in paid work who is injured in a motor vehicle 13 accident is entitled to income replacement benefits. There are separate formulae for calculating the amount of income replacement benefits for the first 13 weeks after the 14 15 accident and for the following period up to five years after the accident. A critical factor in those formulae is the injured person’s post-accident earning capacity, which 16 may be determined by the insurer.

7 MAI Act, s 121 8 MAI Act, s 122 9 MAI Act, s 123 10 MAI Act, s 124 11 MAI Act, s 125 12 MAI Act, s 126 13 MAI Act, s 89 14 MAI Act, s 96 15 MAI Act, s 97 16 MAI Act, s 100

14. The MAI Act identifies certain decisions by an insurer as internally reviewable decisions, 17 including decisions rejecting liability for defined benefits. The Act then allows certain people, including applicants for benefits, to seek internal review of an insurer’s internally 18 reviewable decision. The MAI guidelines may provide for how an internal review is to 19 be conducted, and an internal review must comply with those guidelines. An insurer must complete an internal review within ten days of receiving an application, making a new decision affirming, amending or setting aside and substituting the internally reviewable decision. The insurer must give the applicant notice of the new decision, a 20 statement of reasons, and information about how to apply for external review.

15. The MAI Act identifies decisions (ACAT reviewable decisions) for which applicants may seek external review by the ACAT, including decisions by the insurer to reject 21 22 liability. A review by ACAT may be made “on a question of law or fact”. Section 197 of the Act sets out how a review decision by the ACAT must be made: External review—decision (1) In deciding an application for external review of an ACAT reviewable decision, the ACAT must, by order— (a) affirm the decision; or (b) amend the decision; or (c) set aside the decision and— (i) make a substitute decision; or (ii) remit the matter for reconsideration by the insurer that made the decision (the decision-maker) in accordance with any direction of the ACAT. (2) In deciding the application for external review, the ACAT must only consider the information that was available to the decision-maker when the decision was made. (3) However, the ACAT may, on application by a party, give the party leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made. Example

17 MAI Act, s 186 and sch 1, pt 1.1 18 MAI Act, s 187 19 MAI Act, s 188 20 MAI Act, s 191 21 MAI Act, s 192 and sch 1, pt 1.2 22 MAI Act, s 193 a medical report for an examination undertaken, but not reported on, when the decision was made (4) A regulation may prescribe conditions for allowing additional information or evidence to be presented under subsection (3).

16. The Act is accompanied by a number of sets of guidelines (the MAI Guidelines) made by the Commission to explain and provide more detailed guidance on how the Act should operate. The relevant Guidelines in the present matter are the Motor Accident Injuries (Treatment and Care) Guidelines 2023 (the Treatment and Care Guidelines) and the Motor Accident Injuries (Income Replacement Benefit) Guidelines 2021 (the Income Replacement Guidelines).

The evidence The accident and application

17. The papers for this matter include numerous medical reports generated over the period since the subject accident. These may be reports made for the purposes of the insurance claim itself, reports obtained by the insurer for the purpose of assessing the claim, requests by the applicant for treatment and care, or reports obtained by the applicant from her own doctors and other health professionals. 23

18. The accident occurred on 19 April 2022. The next day Ms Fernando visited her general practitioner, Dr Tharini Thayaparan, who made clinical notes recording that the accident had occurred (describing the injury as “whiplash”), and that Ms Fernando reported headache from the preceding evening, neck pain on the right, bilateral shoulder pain, pain also in the lower back without radiation to the leg, pain in the left wrist and pain in both shins. The applicant reported having had no shoulder or back pain previously. On examination Dr Thayaparan identified discomfort in the neck muscles (mainly on the right) and in the upper shoulder, and in the left shoulder on movement. While there was discomfort at vertebrae 6-8, there was in general an absence of tenderness and swelling. The doctor’s treatment plan was simple analgesics, RICE (which I understand to mean rest, ice, compression and extension), with a review after about a week if symptoms 24 persisted.

23 I-31 24 I-10, page 558

19. About a year later Ms Fernando made an application for treatment and care and income replacement benefits, dated 21 May 2023 but apparently received by the respondent on 25 26 25 May 2023. The application was accompanied, as it must be, by a medical report by the applicant’s general practitioner, Dr Pushpani Herath, dated 20 May 2025. The report diagnosed the injuries sustained by Ms Fernando as soft tissue injuries and neuropathy, with clinical findings of neck, arm and back pain, and stated that the injuries were consistent with the circumstances of the accident as described. Dr Herath gave relevant pre-existing conditions as “unknown” and treatment as long-term use of physiotherapy, medication (NSAIDs, Endep), and mentioned a nerve conduction test, ultrasounds and one or more MRI scans. In Dr Herath’s view, Ms Fernando was fit for 27 work at that time.

Imaging

20. Over the period from 2023 to 2025 the applicant underwent a number of scans, mostly MRIs of the cervical spine, the reports of which are included in the papers. The earliest of these is dated 9 February 2023. The reason for the scan is given as “neuropathy”. The 28 radiologist reported that there was some loss of lordosis and multiple marginal osteophytes. At the C5–C6 level a diffuse disc bulge was compressing the thecal sac; there was bilateral foraminal narrowing, more on the left than the right, with impingement of the exiting nerve root on the left. At C6–C7 there was a protrusion from the disc, with compression of the thecal sac but no apparent foraminal narrowing. The spine was otherwise normal; the radiologist’s summary was “Cervical spondylotic changes with degenerative disc disease at C5-C6 and C6-C7 levels. There is impingement at the left C6 exiting nerve root.” 29

21. Scans by MRI of the brain and lumbar spine are dated 30 August 2023. The reason for the scans was given as “peripheral neuropathy, arms and legs getting worse, MVA” (which I take to mean “motor vehicle accident”, here and elsewhere). The radiologist was

25 I-2, pages 410-415 26 See MAI Act, s 56 and Motor Accident Injuries (Defined Benefits Application) Guidelines 2021, 4.1 27 I-3, pages 416-418 28 I-7, pages 520-1 29 I-7, pages 523-4 unable to identify any abnormalities except of a kind ancillary to the reasons for the scan — a cyst in the brain and some abnormalities in the pelvis, recommended for ultrasound. 30

22. On 29 January 2024 the applicant had a further MRI of the cervical spine with the clinical history described as “Neck pain with radiculopathy”. The radiologist noted loss of lordosis, spondylotic changes at C5/6 level with marginal osteophytes, endplate changes, reduced C5/6 disc height and multilevel disc desiccation. There were disc bulges at C3/4 and C4/5, with uncofacetal hypertrophy indenting the thecal sac and some foraminal narrowing (but with no impingement noted). At C5/6 there was disc protrusion and an annulus tear, and uncofacetal hypertrophy compressing the ventral cord and causing moderate canal stenosis. Foraminal narrowing was severe on the left and moderate to severe on the right with impingement on both exiting C6 and descending C7 nerve roots, worse on the left. There was also disc protrusion at C6/7, with an annulus tear indenting the anterolateral cord compressing the left descending C8 nerve root. There was mild canal stenosis. 31

23. A further cervical spine MRI dated 2 September 2024 gives the clinical history as “Chronic neck pain, MVA 12 months ago, disc bulge C5/C6 osteophytes and C6/C7 nerve root impingement symptoms getting worse”. The radiologist found most aspects of the cervical spine to be normal, except at C5/C6 level, where there was disc degeneration, endplate oedema and disc height loss; there was no apparent crush fracture. The assessment identified disc degeneration involving broad posterior disc osteophytes indenting the thecal sac and causing cord impingement. Foraminal stenosis was worse on the left with impingement of the exiting left C6 nerve root and distortion of the exiting C6 nerve root on the right. No degeneration was noted at C6/C7. The radiologist commented: “Given the cord impingement and the foraminal stenosis, patient will require neurosurgical review ASAP”.

24. Ms Fernando had a further MRI, this time with angiogram of head and neck, on 31 32 January 2025. The radiologist found the head and neck to be normal, noting the previously observed arachnoid cyst in the brain. The radiologist’s assessment was cervical spondylosis with straightening of the cervical lordotic curve and disc

30 I-7, pages 525-6 31 I-7, pages 527-8 32 I-23 degeneration and uncovertebral osteophytes prominent at the C5/6 level. There was foraminal narrowing, severe on the left, moderate on the right, with impingement on the exiting left C6 nerve root.

Treatment

25. In the year between the accident and the lodgement of her application for defined benefits, it appears that the only treatment Ms Fernando received was from a physiotherapist, Mr Sam Payne (clinical notes from general practitioners may exist but do not appear in the papers). Mr Payne seems to have treated Ms Fernando in two discrete periods: first, for four sessions (records headed “CDM”, possibly meaning “chronic disease management”), apparently pursuant to a referral by Dr Herath dated 25 February 2023, and then for 20 sessions (records headed “CTP”) from 13 July 2023 33 to 10 January 2024. I note that in the initial assessment of the applicant as a new patient in the first of those periods, Ms Fernando appears to have told Mr Payne that she could not recall any trauma or acute mechanism driving the onset of symptoms for which she was now receiving physiotherapy; her reason for treatment (at that and two subsequent sessions in the first period) was given as “upper limb neural tension”; for the last of these 34 sessions, CDM4, the reason is given as “Bilateral ? Carpal Tunnel Syndrome”. Mr Payne seems to have concluded that the condition’s cause was unclear: “agg: unsure- 35 seems idiopathic”.

26. In the second half of 2023 the applicant began having regular physiotherapy with Mr Payne, and continued until early 2024 (the sessions are undated, but the discharge report at I–26 records that timeline). I take the “CTP” heading to imply that the sessions 36 were paid for by the respondent, liability having been accepted on 29 June 2023. In each record the reason for the visit is given as “MVA”. Ms Fernando reported neck pain, low back pain, left wrist pain, thoracic spine pain, and episodes of pins and needles and numbness in the hands. Mr Payne reported that she showed reduced range of motion in the thoracic and cervical spine, positive upper limb tension tests bilaterally, reduced neurodynamic testing and hypersensitivity at the C/3 to C/6 vertebrae. Mr Payne treated

33 I-5, page 479; I-5, pages 485-9; I-5, pages 490-511; I-8, pages 541-2 34 I-5, page 485; I-5, pages 486-9 35 I-28 36 I-28 Ms Fernando using patient education, spinal mobilisation, soft tissue massage, dry needling and western acupuncture, night splinting of the hands and progressive home exercises. In his discharge note dated 8 February 2024 Mr Payne attributed Ms Fernando’s need for treatment to “her injuries as a result of MVA 19/4/2024” (an administrative error; the date of the accident was 19 April 2022). He noted that there had been some improvement but that the applicant remained in “widespread pain and symptoms”. He also noted “significant central sensitisation as a result of the MVA”, and a recent diagnosis of Paget’s disease (which I understand to be a disease related to 37 bones). Later in the report he repeated the causal connection between the applicant’s symptoms and the accident: “Sumali continues to have widespread pain and symptoms 38 as a result of the MVA”.

27. The applicant’s GP, Dr Herath, referred the applicant to Dr Yash Gawarikar, a consultant 39 neurologist, on 14 July 2023, attaching the cervical spine MRI report of 9 February 2023 and the results of nerve conduction tests and ultrasounds of the right forearm, elbow, wrist and hand, all of which were unremarkable. Dr Gawarikar sent Dr Herath a report on 18 October 2023 (the day of the consultation, and from the report it is clear that he had also been sent the brain and lumbar MRI imaging of 40 30 August 2023). Dr Gawarikar described the applicant’s report of the onset of symptoms in December 2022 and noted that she had been in a motor vehicle accident earlier that year, but he did not make any causal connection between the two. He reported that the MRI of February 2023 showed “multilevel spondylotic changes and degenerative disc disease” at C5/6 and C6/7, and later in the letter stated that her “cervical degenerative 41 change” would not explain all her symptoms. He sent Ms Fernando for more tests and promised a further report, but it is not clear that any of the later imaging and test results derive from those orders or that he prepared any subsequent reports.

28. In early 2024 Ms Fernando relocated to Queensland. Her new GP, Dr Mandadige Perera, referred her to a neurosurgeon, Associate Professor Sarah Olson, who saw the applicant

37 I-8, pages 541-2; also included as I-26 38 I-8, page 541 39 I-7, pages 543-51 40 I-9, pages 552-3 41 I-9, pages 552-3 42 43 on 27 March 2024. Dr Olson’s report to Dr Perera of the same date noted that the applicant “had a motor vehicle accident and was rear-ended. She had a whiplash injury which has progressed from that to now cause radicular symptoms for her, particularly in the C6/7 distribution.” Dr Olson described a number of other health issues confronting the applicant, but focused on the need for surgical intervention on the cervical spine, noting that the MRI showed that “the problem for the right side is solely at C5/6 where there is quite significant compression and is also backing on to the spinal cord at that level”. Dr Olson stated that there was no myelopathy, and that she thought that Ms Fernando was leaning towards having surgery. On 8 April 2024 Dr Olson’s office wrote 44 to Ms Fernando with a proposal for surgery, an anterior cervical discectomy and fusion comprising three procedures: spinal decompression, fixation of motion segment with a vertebral body screw, and spinal fusion. It is my understanding that this proposal was intended for, and forwarded to, the respondent, and that it is that proposal that was rejected in the decision under review in matter MAI 8/2024.

29. After relocating to Queensland, Ms Fernando received treatment in the form of physiotherapy from Ms Ria Phadnis over the period from 16 February to 20 June 2024. At each consultation, under “Present History” Ms Phadnis included the note “Motor 45 vehicle accident – caused it to cause disc bulge at C5-C6-C7”. For the last three of 16 46 sessions, an additional point is added: “C-6-C7-C8 nerve root compressions”. A further note, present in every session record, gives the “Injury Date” as “2 years ago”. Ms Phadnis’s extensive notes of the treatment are otherwise silent on the accident.

IME assessment

30. The respondent sent the applicant for an assessment by Dr Michael Coroneos, a neurosurgeon acting in the present matter as an independent medical examiner (under section 121 of the MAI Act, the insurer may require an injured person to attend a medical assessment, and the person must comply with a reasonable request). Dr Coroneos saw Ms Fernando on 30 July 2024 and provided a report dated 9 August 2024. The briefing

42 In the interests of brevity Associate Professor Olson is referred to as “Dr Olson” throughout this decision 43 I-9, page 554 44 I-9, pages 556-7 45 I-5, pages 422, 425, 428, 432, 436, 439, 442 46 I-5, pages 422, 425, 428 47 letter from the insurer required Dr Coroneos to assess causation of the applicant’s medical condition and symptoms, whether the surgery proposed by Dr Olson was reasonable and necessary, the applicant’s earning capacity, and the effect of the accident on her ability to carry out normal activities of daily living (ADLs). Dr Coroneos made a diagnosis that Ms Fernando “may have experienced cervical, thoracic and lumbar soft tissue strain caused by the subject motor vehicle accident” but “there is no evidence of any more significant neurological or spinal injury having occurred.” He also stated that “The imaging changes in the cervical spine are those of cervical spondylosis and are non-neuro-compressive”. Dr Coroneos continued on a similar path in the remainder of the report, concluding that the effects of the accident had ceased (“833 days post MVA”) and that there was no requirement for neurosurgical intervention. He stated that the applicant “does not present with radiculopathy or myelopathy”; “MRI examination shows cervical spondylosis with no structural injury change”; “There is no spinal cord or nerve root compression”; the symptoms were “not in a radicular distribution”; “I cannot determine the basis for the ongoing symptoms and reported restrictions in ADL/IADLs”; and “ I cannot find a neurosurgical injury diagnosis having occurred Tuesday 19/04/2022, 833 48 days ago that is compatible with the claimant’s report of symptoms and incapacity”.

31. On 21 August 2024, having received the report of Dr Coroneos, and relying on that 49 report, the insurer denied support for the surgical proposal by Dr Olson. On 1 September 2024 Ms Fernando advised by email of her intention to seek internal review 50 once she had gathered all the necessary medical reports, and on 15 September 2024 she 51 lodged a request for internal review. The insurer’s internal review decision affirming denial of the claim, dated 30 September 2024, is the decision now under review, at I–1, pages 1–8.

Admission of additional evidence

32. On 28 April 2025 the Tribunal made orders preparing matters MAI 8/2024 and MAI 2/2025 for hearing. Those orders directed that the two matters should be heard

47 IS-1, pages 1-3 48 I-11, pages 559-78 49 I-12, pages 598-603; an identical letter dated 15 September 2024 appears at I-14, pages 607-610, and that decision is cited as the “original decision” in the internal review decision 50 I-13, pages 604-5 51 I-14, pages 611-3 and I-15, page 614; the completed request for internal review is dated 11 September, but the covering email is dated 15 September. together, granted leave for the parties to rely on additional medical reports and letters, and directed that a single compilation of evidence should be made for the hearing. On 28 May 2025 the Tribunal agreed to the admission into evidence of reports by Dr Dihan Aponso, Dr Cameron Staggard and Dr Jason McMillen. The Tribunal also allowed the respondent to seek and rely on a further report from Dr Coroneos.

33. In the event, the respondent appears not to have sought a further report from Dr Coroneos, but rather tasked a radiologist, Dr John Korber, with preparing a report. The Tribunal subsequently agreed to the admission of the report, but the applicant contends that the 52 absence of a report from Dr Coroneos encourages the drawing of a Jones v Dunkel inference that the further report by Dr Coroneos was obtained but found not to assist the respondent. That contention is considered later in these reasons.

The later reports

34. On 3 September 2024 Dr Lakshmi Mudunuri, a GP treating the applicant in Queensland, 53 referred her to Dr Aponso, a spine surgeon. Dr Aponso sent a report to Dr Mudunuri 54 on 25 September 2024, describing Ms Fernando’s symptoms – “neck pain and bilateral hand numbness”, with the symptoms in the hand “most consistent with the carpal tunnel pattern”. Dr Aponso reported her “arm radicular pain”, “possibly in a C7 distribution”, commenting that “It has been difficult to map this out exactly” with the applicant. He noted “cervical myelopathy symptoms”. He also referred to the imaging provided, commenting on the “left-sided C6/7 disc protrusion, with the degenerative change at C5/6 noted, indicating this to be longstanding”. Dr Aponso also referred to the accident, but saw it as having been the prompt for cervical spine imaging rather than in any causal connection with the applicant’s symptoms. Dr Aponso concluded that Ms Fernando’s symptoms were “hard to correlate”, but that her cervical myelopathy symptoms were “in keeping with the findings at C5/6, which I think is a long-standing issue”. Dr Aponso recommended surgical decompression to address the myelopathy, requiring anterior cervical decompression and fusion. In a follow-up letter dated 3 October 2024 Dr Aponso reported that Ms Fernando had visited him a second time, to discuss her surgical options

52 [1959] HCA 8 53 I-33 54 I-34 further. Dr Aponso emphasised that action would be required if the neurologic symptoms 55 were progressive.

35. The applicant at about this time consulted a chiropractor, Dr Cameron Staggard, who conducted an introductory assessment and compiled the results in a report dated 10 56 October 2024. Much of the material in the report is explanatory, but there is an assessment of the cervical spine, noting the condition at C5/6. There is no comment on possible causes and the proposed treatment is chiropractic.

36. In November 2024 and again in March 2025 the applicant saw a different neurosurgeon, Dr Jason McMillen, apparently in the context of public rather than private treatment. Dr McMillen sent Dr Mudunuri letters reporting on these consultations, dated 57 13 November 2024 and 19 March 2025. In the earlier of the letters Dr McMillen spent a considerable period dealing with Ms Fernando’s arachnoid cyst. He mentioned the motor vehicle accident as a likely source of Ms Fernando’s headaches, although later in the letter said that “I am strongly suspicious that her headaches may simply be cervicogenic”. Later, in the context of Ms Fernando’s neck pain, Dr McMillen noted that the applicant “was in a motor vehicle and was rear ended at high speed and since then she has had issues with neck pain”. There is also a reference to the changes at C5–C6 as constituting “degenerative disease in the cervical spine”. In respect of her neck pain and pain and numbness in her hands, Dr McMillen concluded that her symptoms did not support a finding of myelopathy. Apparently the chiropractic treatment she was undergoing had been quite successful in treating her symptoms, and “she would not want to consider surgery with her current degree of symptomatology”. Dr McMillen thought that if the applicant were to worsen, “then she might be a candidate for a C-5-C6 anterior cervical discectomy and arthroplasty in the context of her young age”.

37. When he saw the applicant four months later, Dr McMillen found a different picture. His letter of 19 March 2025 reported that Ms Fernando’s spondylopathy had worsened, and that he now saw signs of early and progressive myelopathy in the cervical spine, with some possible signs of myelopathy in the lumbar spine. A recent MRI of the cervical spine demonstrated possible worsening of C5–C6 degenerative stenosis “secondary to a

55 I-34 56 I-35 57 I-36 C5-C6 disc osteophyte”. He discussed with the applicant a C5–C6 anterior cervical discectomy and fusion (concluding that given the symptoms and imaging fusion was to be preferred to arthroplasty). He did not provide any further comment on causal issues 58 or the origin of the changes at C5–C6.

38. The more recent MRI relied on by Dr McMillen appears to be that dated 59 31 January 2025. The radiologist noted that there was cervical spondylosis with some loss of lordosis, and disc degeneration and uncovertebral osteophytes at C5/6, with impingement on the exiting left C6 nerves.

39. At about the same time Ms Fernando returned to Dr Olson, who sent a report dated 60 7 February 2025 to Dr Perera. Dr Olson noted the worsening of Ms Fernando’s symptoms, and that the recent MRI shows “calcification and bony overgrowth” over the affected disc. Dr Olson once again recommended fusion, urging that approval be expedited as delay would allow the condition to worsen and compromise recovery. She urged that the matter be put to the insurer once more, but made no further comment on 61 the original cause of Ms Fernando’s spinal condition.

Further assessment by IME 62

40. On 3 March 2025 the respondent sent a further letter of instruction to Dr Coroneos, asking him to review further medical material (MRI imaging, the report of Dr Gawarikar, the request for surgery of Dr Olson) and advise whether he wished to change his earlier views, giving particular attention to the opinions voiced by Dr Olson. Dr Coroneos, in 63 his report dated 13 March 2025, responded that there was no treatment report from Dr Olson among the additional reports sent to him, and accordingly the respondent sent 64 a further letter of instruction on 26 March 2025 attaching the treating report of Dr Olson dated 7 February 2025 and asking for a further reaction. Dr Coroneos responded with a 65 third report dated 4 April 2025. Both of these additional reports by Dr Coroneos

58 I-36 59 I-37 60 I-38 61 I-38 62 IS-2, pages 8-11 63 IS-3, pages 12-20 64 IS-4, pages 21-3 65 IS-5, pages 24-30 repeated in an emphatic fashion the conclusions that Dr Coroneos had voiced in his first report: the condition of the applicant’s cervical spine was the result of degenerative cervical spondylosis and was not related in any way to the accident in 2022; the symptoms reported by Ms Fernando did not in any case align with the changes seen in the imaging available (including the additional imaging now provided); the surgery proposed by Dr Olson was neither reasonable nor necessary to deal with the effects of the motor vehicle accident.

41. The respondent also sent the applicant to a second IME, this time a radiologist, 66 Dr John Korber. The briefing letter was sent on 8 July 2025 and Dr Korber’s report is 67 dated 11 September 2025. Dr Korber stated that the observed disc degeneration at C5–6 did not derive from the accident given the absence of symptoms at the time of the accident, writing: “I cannot see how these findings are related to the accident. The disc protrusions are in a position to cause radiculopathy. If the radiculopathy was not immediate, I cannot see how there is any connection to the motor vehicle accident …”. Dr Korber went on to note that the diagnostic findings (the changes in the cervical spine) could be found in the asymptomatic patient, and gave a reference from the literature in support.

The positions of the parties

42. The applicant contends that in the decision in MAI 8/2024 the respondent erred in both fact and law in arriving at the conclusion that the accident did not cause the problems in the applicant’s spine. The respondent erred in fact by relying on the initial report of Dr Coroneos rather than the opinions of the applicant’s treating practitioners, and by placing undue weight on the delayed onset of the applicant’s symptoms following the 68 accident. The records sent to Dr Coroneos were incomplete, with some of the reports of treating doctors having been omitted; when all the records are taken into account a complete picture emerges of the applicant’s declining physical status, that decline having its origin in the accident; surgery has now become urgent. The reports of Dr Coroneos, in that context, should be regarded as outliers, to the extent that it would amount to an

66 IS-6, pages 31-4 67 IS-7, pages 35-42 and I-39 68 Applicant’s submissions dated 29 September 2025, at [11] 69 error to rely on them. Further, in his later reports Dr Coroneos merely confirmed his earlier opinions, without allowing those opinions to be challenged by the different view 70 of the applicant’s treating doctors.

43. Dr Korber’s report emphasised the absence of symptoms at the time of the accident; but the GP report immediately following the accident contained reports of symptoms of the 71 kind that Dr Korber was seeking. Indeed, if the report is read in the light of that evidence 72 from the GP it can be understood as supporting the applicant’s theory of causation.

44. None of the briefing letters to Dr Coroneos and Dr Korber provided those doctors with a 73 complete set of medical records. That was itself a failure of procedural fairness. Further, the treatment and care provisions of the MAI Act allow only the insurer to commission an expert assessment — there is no provision allowing the injured person to commission a separate expert report. The one-sidedness of the process makes the briefing of the IME centrally important; and should more generally encourage the Tribunal to treat the reports 74 with a degree of scepticism.

45. The course of the applicant’s symptoms was consistent with an injury that developed and worsened over time, and her return to work following the accident was in accordance 75 with that trajectory, rather than inconsistent with it. And the accident does not have to explain the entirety of the applicant’s symptomology; if the accident exacerbated naturally occurring cervical spondylosis, the exacerbation is itself a compensable 76 condition under the MAI Act.

46. The surgery proposed by Dr Olson is directly related to the injury and is recommended by her treating doctors, namely Dr Olson, Dr McMillen and Dr Aponso; that is a basis

69 Applicant’s submissions dated 29 September 2025, at [22]-[24] 70 Transcript of hearing dated 30 September 2025, page 7, lines 1-42 71 Applicant’s submissions dated 29 September 2025, at [32]-[33]; Transcript of hearing dated 30 September 2025, page 6, lines 33-45 72 Transcript of hearing dated 30 September 2025, page 12, lines 10-20 73 Transcript of hearing dated 30 September 2025, page 14, lines 32-47, page 15, lines 1-27 74 Transcript of hearing dated 30 September 2025, page 16, lines 16-47, page 17, lines 1-23 75 Applicant’s submissions of 29 September 2025, at [34]-[39]; Transcript of hearing dated 30 September 2025, page 13, lines 1-16 76 Transcript of hearing dated 30 September 2025, page 12, lines 22-45 77 for concluding that it is reasonable and necessary. The material gathered and cited by the internal reviewer is of a general nature, surveying surgical practice in general, and 78 cannot be applied to the applicant’s specific circumstances.

47. The respondent’s case is in essence that the conclusions drawn by the internal reviewer were available on the evidence; that the reviewer arrived at those conclusions by a process that was logical, thorough, well-reasoned and in accordance with the MAI Act and Guidelines. There was no error of fact or law in either decision, and attempts by the applicant to identify such errors are in effect invitations to the Tribunal to undertake a 79 merits review rather than the review called for by the MAI Act.

48. On causation, the radiological records and the reports of Drs Coroneos and Korber provide a clear basis for the conclusion reached by the internal reviewer. This is supported by medical literature documenting the existence of degeneration of the spine without the appearance of symptoms. The pathology of the applicant’s cervical spine is 80 degenerative rather than traumatic. Further, it is doubtful whether the Tribunal should allow the applicant’s argument that causation occurred through exacerbation by the accident of a pre-existing spinal degeneration, since the argument was raised for the first 81 time in the applicant’s final submissions.

49. Dr Coroneos stated very clearly his opinion that the surgery proposed by Dr Olson was not indicated for the applicant. That position is supported by the information on clinical practice assembled by the internal reviewer. The MAI Guidelines encourage reliance on clinical practice. It follows that even if it were accepted that the injury caused the applicant’s cervical spine pathology, the surgery could not be regarded as reasonable and 82 necessary.

77 Applicant’s submissions dated 29 September 2026, at [40]-[43]; Transcript of hearing dated 30 September 2025, page 13, lines 18-47, page 14, lines 1-8 78 Transcript of proceedings dated 30 September 2025, page 14, lines 2-26 79 Respondent’s submissions dated 29 September 2025, at [12]-[24] 80 Respondent’s submissions dated 29 September 2025, at [25]-[36] 81 Transcript of hearing dated 30 September 2025, pages 25-8 82 Respondent’s submissions of 29 September 2025, at [[37]-[52]

50. With regard to the decision on income replacement, it follows from the conclusion on causation that the applicant’s limited capacity for work is not the result of the accident. 83 There was no error in the internal reviewer’s decision.

Consideration

51. Section 193 of the MAI Act provides that certain people, including applicants for defined benefits, may seek ACAT review of an ACAT-reviewable decision “on a question of law or fact”. It is accepted that the effect of the quoted phrase is to limit the Tribunal’s review to an assessment of the lawfulness of the decision under review — that is, the Tribunal is not taking the internal review decision a second time, assessing all the available evidence and seeking to make the correct or preferable decision; rather the Tribunal is determining whether the internal review decision is affected by an error of fact or law, 84 sufficiently material that the decision should be varied or set aside. And the evidence on which the Tribunal calls in this task is that available to the internal reviewer, with the addition of any that the Tribunal has subsequently admitted under section 197(3) of the MAI Act.

52. There lies an onus on the applicant, therefore, to establish error in the decision under review. The essence of the applicant’s case in the present matter is that the respondent’s reliance on the report of Dr Coroneos — the initial report of 9 August 2024 — was misplaced: Dr Coroneos did not receive the complete range of treating doctors’ reports available to the respondent, and his report encouraged the internal reviewer to disregard the evidence of the treating doctors and to draw the wrong conclusions from the delayed onset of the applicant’s symptoms. As a result, the respondent made errors of fact in deciding that the accident did not cause the applicant’s spinal condition and the resultant symptoms. Having fallen into that error, the decisions about the reasonableness and necessity of surgery and the payment of income replacement benefits were inevitably compromised by the wrong conclusion on causation.

53. The respondent argues that the above argument is effectively asking the Tribunal to undertake a merits review of the matter. There is a point to that argument. To the extent that the applicant is asking the Tribunal to decide which conclusion on causation should

83 Respondent’s submissions of 29 September 2025, at [53]-[57] 84 See Neish v Insurance Australia Ltd [2022] ACAT 24, Williams v GIO AAI Ltd [2021] ACAT 100, and Montgomery v Insurance Australia Ltd [2024] ACAT 60 be preferred — whether the accident did or did not cause the injury — the applicant is putting a question that is not permitted under the MAI Act. To succeed, the applicant must establish that the causation conclusion drawn by the internal reviewer, viewed in the light of all the evidence now available, is not open to me. This is more than the weight of the evidence being on the applicant’s side: it requires that the evidence that the accident caused the injury is so overwhelming, and the evidence to the contrary so paltry and weak, that a conclusion in favour of the respondent’s position is not one I can lawfully arrive at. Resolving this issue requires that I look at the totality of the evidence on causation — the expert views of doctors and allied health professionals.

Causation – did the accident cause the applicant’s symptoms and spinal pathology?

54. It is certainly the case that the internal review decision in MAI 8/2024 is heavily reliant on Dr Coroneos’s initial report. Dr Coroneos reached his conclusions with great certainty and presented his opinions in a categorical fashion. But his report is detailed and sets out a large battery of tests, signs and signals drawn on when examining the applicant; he was not simply relying on the imaging provided, although he also commented extensively on it. He responded carefully to the questions asked of him. Dr Coroneos drew three conclusions that are significant in the present context: first, that the accident did not cause the spinal condition; second that the reported symptoms did not correspond with the spinal condition apparent in the imaging; and third that surgical treatment was not indicated. These opinions are presented several times in answer to different questions from the insurer; in response to a question about whether surgical intervention on the applicant’s cervical spine was reasonable and necessary, Dr Coroneos responded in the 85 following terms: I have not seen any request for surgery. I do not believe that there is a requirement for a cervical spine surgery in any event. The claimant does not present with radiculopathy or myelopathy and power, tome, reflexes and sensation are normal and MRI examination shows cervical spondylosis with no structural injury change. There is no spinal cord or nerve root compression. The claimant’s reported symptoms are not in a radicular distribution.

85 I-29, page 18

55. Later in the report, in response to a question about earning capacity and return to work, Dr Coroneos said: The neurosurgical effects of the subject injury Tuesday 19/04/2022, 833 days ago has ceased. I cannot determine the basis for the ongoing symptoms and reported restrictions in ADL/IADLs. There is no requirement for a neurosurgical intervention or treatment.

56. An important part of the applicant’s case is that Dr Coroneos was not sent all the relevant treating doctors’ reports. At the time of his examination of Ms Fernando (30 July 2024) the available reports and notes from treating doctors and other health professionals comprised: (a) The report of Dr Thayaparan (20 May 2022). (b) Physiotherapy discharge report (8 February 2024). (c) Letter from Dr Olson (27 March 2024). (d) Letter from Dr Gawarikar (18 October 2023). (e) Various imaging reports and scans, including the MRI of the cervical spine of 9 February 2023, the MRIs of the lumbar spine and brain of 30 August 2023, and the MRI of the cervical spine of 29 January 2024. (f) Various clinical and practitioners’ notes.

57. Dr Coroneos included in his report a list of the documentation sent to him. The only report absent from Dr Coroneos’s list that is included in the papers before me is the MRI of the cervical spine of 29 January 2024. That report is not on the list given by 86 Dr Coroneos and his account of the radiological information available does not mention that scan (although it does mention other imaging not of the cervical spine and not 87 included in the papers before me).

58. But the question for me is not whether, absent that scan, the reliance of the respondent on Dr Coroneos’s report involves an error of law or fact: on review I need to determine whether the internal reviewer’s decision is in error in light of all the additional evidence that has now been admitted — including later imaging, the reports of Drs McMillen,

86 I-29, page 4; the list includes material not included in the papers filed with the Tribunal 87 I-29, pages 13-14 Aponso, Olson, and Gawarikar (Dr Gawarikar’s letter went to Dr Coroneos but he made no comment on it in his initial report), the supplementary reports of Dr Coroneos, and the report of Dr Korber. For the applicant to succeed I must be persuaded that, taking all the evidence into account, the conclusion that the applicant’s spinal condition was not caused by the subject accident is not one that could be lawfully reached.

59. The supplementary reports of Dr Coroneos reinforce his earlier opinions on causation and on the absence of correlation between the imaging of spondylosis at C5/6 and the symptoms and signs observed on examination. Dr Coroneos reiterated his view that surgical intervention was not needed for the purpose of treating the results of the subject accident, but no longer gave a general view that no surgical intervention whatsoever was indicated. The emphatic nature of Dr Coroneos’s opinion is illustrated by his statement that: I assessed that the significant test was whether the changes on BOTH advanced diagnostic medical imaging AND the clinical/musculo skeletal and neurological examination findings were CAUSED by the MVA and I determined that they were NOT caused by the MVA Tuesday 19 April 20222, [sic] 835 days earlier. I did NOT support the referenced proposed surgery as being for the neurological effects of the assessed subject MVA (original emphasis)

60. The applicant suggested that the reports were affected by confirmation bias. It is true that IMEs can be reluctant to depart from the views formed when they examined an applicant, especially when, as is usually the case, they do not have the opportunity of examining 88 the applicant a second time when the supplementary report is requested. But there is nothing that I can see that would encourage me to give Dr Coroneos’s reports less weight than those of any other IME making a supplementary report. And it is not as if Dr Coroneos offered no reasons in support of his conclusions.

61. The applicant points out, accurately, that Dr Coroneos was not sent, at any time, some of the treating doctors’ reports. The requests to him were focused on the request for surgery by Dr Olson, and his reports, especially the supplementary reports, consider her letters and surgery proposal. He was also sent Dr Gawarikar’s report, and provided comment on it. But he did not see the reports of Drs Aponso, McMillen or Staggard, or see the reports from the Queensland physiotherapist, Ms Phadnis. Does the failure to supply these reports, especially those of the treating doctors, Drs Aponso and McMillen, somehow

88 See for example Hernandez v AAI Ltd [2025] ACAT 45, at [37] invalidate Dr Coroneos’s conclusions? For the reasons explored below I believe it does not. The treating doctors’ reports focus on surgical options, needs and urgency; as discussed below, they have little to say on causation and, for the resolution of the central causation issue, in my view their omission was not material to Dr Coroneo’s expert opinion and the respondent’s reliance on it.

62. Dr Korber noted that the available imaging indicated that the applicant had “disc degeneration at C5 and C6 with posterolateral disc protrusions toward the left side. Given that that the claimant had no symptoms at the time of injury, I cannot see how these 89 findings are related to the accident.” He added that the protrusions could cause radiculopathy but if the radiculopathy did not occur at the time of the accident then the accident and the radiculopathy could not be causally connected. The applicant pointed out that the applicant did go to see her GP, Dr Thayaparan, the day after the accident, and his notes of the consultation refer to symptoms, including pain in the neck, shoulder and 90 left wrist. But Dr Thayaparan did not find any worrying signs on examination, and his treatment plan was “simple analgesic/RICE”. No further consultations of any kind took place after the accident, so far as the evidence discloses, until seven or eight months later. I cannot accept that the symptoms immediately following the accident were some kind of momentary appearance of radiculopathy, with nothing further appearing until the end of 2022 or in early 2023. The view taken by Dr Coroneos and, it appears, Dr Thayaparan, that the symptoms immediately after the accident were minor soft tissue injury seems inherently more likely.

63. It is on turning to the reports of the treating doctors that the limitations of the applicant’s case become apparent. None of the treating doctors attempted a systematic determination of causation of the kind followed by Dr Coroneos. That is not surprising; treating doctors are focused on how to treat the patient, with causation less likely to be at the front of their minds. At the hearing the applicant suggested that the respondent had neglected to ask any of the treating doctors for an opinion on causation, and that it was for the respondent, not the applicant, to take such a step. It is a fair point to a degree; the MAI Act and Guidelines leave obtaining a medical opinion on treatment and care to the insurer. But there is no evidence that the applicant asked the respondent to obtain a statement on

89 IS-7, page 38 90 I-10 causation from one or more treating doctors — at any time, including after she had obtained legal representation. And I must decide this matter on the evidence that I now have available. And, given the range and variety of medical evidence that has been admitted after the internal review decision, it is hard to believe that any properly formed medical opinion on causation, including by one of the treating doctors, would have been excluded.

64. It is plain that there are two case theories advanced in these proceedings. The applicant’s theory is that the accident in May 2022 caused an injury to the applicant’s spine, but that apart from the short-lived symptoms at the time, the effects of the accident on the spine became apparent only later, in 2023; and the condition has been getting worse with time since then (there is a second theory, advanced only at the hearing, that the injury aggravated pathology of the cervical spine that was existing but asymptomatic at the time of the accident). The theory of the respondent is that the accident caused soft tissue injury, the effects of which ceased quickly; and that months later the effects of existing but hitherto asymptomatic spinal degeneration started to become apparent. The accident and the spinal pathology are unrelated, and the insurer bears no responsibility for the condition of Ms Fernando’s spine, which was not caused, or contributed to, by the accident.

65. The applicant, to succeed, must not only present a tenable case theory; I must be persuaded of an error of fact or law in the internal reviewer’s decision before I can turn my mind to any alternative. The applicant says that the respondent relied on the reports of Dr Coroneos, who was not sent all the relevant reports and whose conclusions are in the teeth of the evidence from the treating doctors.

66. The problem with the applicant’s argument is that there is virtually no evidence from the treating doctors that the accident caused Ms Fernando’s spinal pathology. The only clear statement I can find is that of Dr Olson in her letter of 24 March 2024: that the applicant “had a motor vehicle accident and was rear-ended. She had a whiplash injury which has progressed from that to now cause radicular symptoms for her, particularly in the C6/7 distribution”. Dr Olson gives no reasons for her conclusions. Perhaps I should not expect reasons — Dr Olson is writing a letter to Ms Fernando’s GP, not drafting a medico-legal report; but the applicant is contending that I should place weight on her opinion, and that requires that I regard this in the same light as I would expert opinion evidence of any kind. The courts have made it clear that expert opinion evidence must include enough in the way of reasons for the court (or tribunal) to be confident that the opinion is properly 91 founded in expert knowledge and observed or assumed facts. The absence of reasons in Dr Olson’s letter leaves open the possibility that she did not turn her mind, with the necessary rigour, to the question of causation, but merely made a convenient assumption. I do not believe I can put any significant weight on her statement.

67. The other doctors offer various perspectives, none of which tie the applicant’s spinal pathology causally to the accident. Dr Gawarikar was silent on the issue. Dr Aponso saw the pathology as “longstanding”, and I cannot see this as a cryptic reference to a motor vehicle accident two years earlier. Dr McMillen suggested that Ms Fernando’s headaches derived from the accident, although he did not relate the symptoms to any mechanism and later expressed the view that the headaches were cervicogenic (i.e. derived from the cervical spine). He also noted a temporal connection between the accident and other symptoms (“since then she has had issues with neck pain”) but it is not clear that this is an expert view — indeed it reads as an account of what his patient might have told him. It is in any case inaccurate, in that there was a gap of about ten months between the accident and the first treatment that might be associated with it, on the applicant’s case theory (leaving aside the immediate treatment for soft tissue injury on the day after the accident). In my view, none of these doctors can be regarded as supporting the causation contended for by the applicant.

68. Very frequently the language used in the available reports — both by treating doctors and by radiologists — seems far more consistent with a naturally occurring degenerative process than with an acute injury: Dr Gawarikar noted “multilevel spondylotic changes and degenerative disc disease”; Dr Aponso identified longstanding degenerative change; Dr McMillen saw degenerative change in the cervical spine; the MRI of 9 February 2023 92 identified “cervical spondylotic changes with degenerative disc disease”; that of 93 29 January 2024 found “spondylotic changes at C5/6 level”; that of 2 September 2024 reported “disc degeneration mainly at the C5/C6 level with endplate oedema and disc

91 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, at [60] (Heydon J); Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [129] (French CJ, Gummow, Hayne, Heydon, Kiefel and Bell JJ); Lang v The Queen [2023] HCA 29 at [11] (Kiefel CJ and Gageler J) 92 I-9, page 551 93 I-7, page 525 94 height loss” and denied the existence of any crush injury; that of 31 January 2025 95 reported “cervical spondylosis”. I cannot categorically state that the degenerative changes reported were not caused by an accident; but the language seems more likely to refer to naturally occurring changes.

69. There is also a good deal of comment on the difficulty several doctors had in aligning Ms Fernando’s symptoms with the results of imaging. This was a central aspect of the comments by Dr Coroneos, but Dr Gawarikar also noted that the applicant’s cervical degeneration would not explain all her symptoms; and Dr Aponso commented on the difficulty of correlating her symptoms (which I take to mean that symptoms and imaging did not align). My understanding is that the specialists were looking for a symptomology in which a C5/C6 pathology was evident in the distribution of radicular symptoms, and failed to find it. This difficulty in correlating imaging and symptoms — not commented on by Dr Olson or Dr McMillen — may be a challenge for the applicant’s treating doctors, but I do not think it leads me to conclusions any different from those already reached.

70. There are references to causation in the records of the two physiotherapists, but I am not inclined to put any weight on them, for three reasons: first, the references read to me as if they come from the applicant herself, or from the referral; second, it is not clear to me that a physiotherapist will have the expertise, or the access to medical history and records, to make an authoritative statement on causation of an injury of this kind; and third, once again there are no reasons in support.

71. As for the applicant’s proposal that the accident exacerbated a pre-existing degenerative condition, that is plausible enough, but so far as I can see, there is not a shred of evidence in support of it. No doctor or allied health professional has even referred in passing to that as a possibility.

72. I do not accept the applicant’s contention that I should draw a Jones v Dunkel inference that the further report by Dr Coroneos was obtained but did not assist the respondent. Apart from the perfectly reasonable explanation offered by the respondent, I am reluctant in any case to conclude that a report was obtained simply because leave was given.

94 I-7, page 527 95 I-23 Further, having read Dr Coroneos’s reports, I would doubt that the medical reports additionally available in May 2025, when leave was given, would have prompted him to change his conclusions.

73. One of the threads in the applicant’s argument is that the respondent reached conclusions by giving unwarranted emphasis to the delay in the appearance of symptoms of the pathology caused, in the applicant’s account, by the accident. The position is straightforward enough — that the pathology was asymptomatic for a period after the accident, apart from the reported symptoms from the day after the accident, but that symptoms appeared months later and then worsened over time. I am not persuaded that the respondent or the respondent’s IMEs placed undue weight on the delay in the appearance of the symptoms; it is really only Dr Korber who decided causation on the absence of symptoms at the time of the accident, and I have commented above on his findings. Dr Coroneos identified the immediate symptoms after the accident as soft tissue injury, and his repetition of the 833 days that had elapsed before he examined the applicant should in my view be understood as a reference to the kind of period in which soft tissue injuries would normally be expected to have well and truly settled.

74. Critical here, however, is the absence of any reported symptomology between the end of April 2022 and perhaps January-March 2023, when Ms Fernando obtained an initial MRI report and apparently began physiotherapy with Mr Payne. There are in the papers before me no clinical records from GPs over this (or any other) period, for example, which might have recorded the appearance of symptoms at various times and thereby supported one 96 or other case theory. In Bothe v AAI Ltd (Bothe), a case cited by the applicant, but not on this point, PM Kyprianou found that the failure of the insurer in that case to obtain relevant medical records from the applicant’s doctors was a breach of procedural fairness, 97 drawing on the Motor Accident Injuries (Internal Review) Guidelines 2022. In the present matter it is certainly a little mysterious that there is no clear explanation of how Ms Fernando’s symptoms first appeared, leaving aside the day after the accident. 98 Mr Payne’s early records included a single line reading “28/12/2022”, which might be a record of the first appearance of symptoms, but could readily carry other meanings.

96 [2022] ACAT 12 97 Bothe, at [37]-[47] 98 I-5, page 485 Dr Gawarikar reported that Ms Fernando said that the symptoms first appeared spontaneously on 20 December 2022, and he commented on the specificity of that 99 report.

75. On 25 June 2024 the respondent sent a message to Mr Payne, asking for all clinical notes relating to Ms Fernando. Mr Payne passed this request to the health centre administrators with the comment that he did not handle requests for clinical records. It does not appear that any clinical records or notes were provided in response, except for those of Mr Payne himself. The Motor Accident Injuries (Treatment and Care) Guidelines 2023 (the Treatment and Care Guidelines) provide in guideline 6.4.1 that, where there is doubt whether an injury is directly related to an accident, an insurer may seek all relevant records and allow 10 business days for them to be produced. That may be what occurred here, although it is not clear how widely the net was cast; but the applicant has had ample opportunity to supply medical records to the insurer if they were capable of throwing light on the appearance of symptoms or supporting her case theory. When applying for internal review of the denial of approval for surgery she attached a significant volume of 100 medical records. That no clinical notes from her GPs have been submitted suggests to me that the records do not assist the applicant. I do not think, in all the circumstances, that the respondent failed to provide procedural fairness to the applicant in respect of her GP records.

76. In summary, the applicant’s contention that Dr Coroneos reached his conclusion in the teeth of the evidence, to the point that his report should receive little or no weight, cannot stand. The evidence in the teeth of which Dr Coroneos is said to have formed his expert opinion is flimsy and uncompelling at best. Further, Dr Coroneos in his three reports drew on virtually all the evidence originally available and much of that subsequently admitted. Dr Coroneos’s conclusions were supported by Dr Korber. These opinions were properly formed and supplied with detailed reasons. I cannot see that the respondent was in error in relying on these reports — indeed, I cannot see that the respondent had any choice. There was no error in the internal reviewer’s conclusion that the accident did not cause the pathology in Ms Fernando’s cervical spine. Under section 38 of the MAI Act, a person who sustains an injury in a motor accident in the Territory is entitled to defined

99 I-9, page 552 100 I-14, pages 611-613 benefits; the internal reviewer concluded, and I agree, that the cervical spine pathology was not sustained in the subject accident, and Ms Fernando is not entitled to defined benefits in respect of that pathology.

Is the proposed surgery reasonable and necessary?

77. Under the MAI Act, the matters an insurer must consider in deciding whether proposed treatment and care is reasonable and necessary include whether the treatment and care is directly related to the injury, and whether it is appropriate for the injury. Having concluded that there is no error in the conclusion that the accident did not cause the spinal pathology that is the subject of the proposed surgery, I do not need to turn my mind to broader questions of whether the surgery is reasonable and necessary; it fails that test because it is not related to an injury sustained in the accident.

78. The applicant cites Bothe in support of the argument that the proposed surgery is reasonable and necessary. Although the facts of that case have something in common with the present matter, the similarities do not in the end assist the applicant. Bothe goes to causation of an injury, the possibility of the subject accident causing an exacerbation of an existing condition, and the appropriateness of a surgical intervention; but each case is decided on its particular facts, and in cases of this kind, its medical facts and opinions. The facts in Bothe are different and the decision in that case to set aside the internal review decision and remit the matter was driven by its particular facts; I cannot draw on that case to arrive at a conclusion in the present matter, where the picture, especially on the medical side, is different (Bothe does raise, however, the separate issue, not pressed by the applicant, that has a bearing on questions of the delayed onset of symptoms, dealt 101 with earlier in these reasons). The respondent cites Ahmad v Insurance Australia Ltd 102 and Begonja v Insurance Australia Ltd in support of the argument that surgery in the applicant’s position is not reasonable and necessary; but those are cases I would only need to consider if causation is established.

79. I have concluded that the proposed surgery for Ms Fernando’s spine is not reasonable and necessary as a form of treatment and care for the results of the subject accident; it is important, however, that the applicant does not see this conclusion as some broader

101 [2025] ACAT 47 102 [2022] ACAT 46 rejection of the requirement for surgery. Ms Fernando’s doctors have pressed on her the urgency of surgical intervention, and that is a matter for her to resolve with them. All that this decision says on that subject is that the respondent is not liable for the costs of the surgery.

80. I note the extensive body of medical literature assembled by the internal reviewer in the context of the decision on whether surgery was reasonable and necessary, material that I would have needed to consider if I had concluded that the accident caused the spinal pathology. There is a general conclusion drawn from this material that surgery is not indicated as a treatment for spondylosis of the cervical spine with radiculopathy and myelopathy. Ms Fernando may wish to share this material with her doctors, but I note that even if surgery is not generally favoured there may be cases where it is appropriate. These are decisions for the applicant to take with her doctors. 103

81. I note, too, that the Recovery Plan dated 10 February 2025, proposed by the respondent and sent to the applicant, allowed her a single consultation each month with a nominated treating doctor for 13 weeks, and “rehabilitation services” provided by a practitioner to be approved by the respondent. I assume the rehabilitation services would be in the nature of physiotherapy. This is in line with the detailed report included with the internal reviewer’s decision, “Clinical guidelines for best practice management of acute and chronic whiplash associated disorders” prepared by the South Australian Centre for Trauma and Injury Recovery. The report recognises that some people with whiplash will have chronic symptoms arising from that injury; it recommends treatment of the kind that would normally be supplied by a physiotherapist or a similar practitioner. The Recovery Plan implies that the respondent, at least at that time, was continuing to accept liability, provided that liability could be directly related to the original injury.

82. The decision in MAI 8/2024 is affirmed.

Was the internal reviewer’s decision that the applicant’s income replacement benefit was nil affected by an error of law or fact?

83. After recovering from the immediate effects of the accident for a week, Ms Fernando 104 returned to work. Her symptoms appear to have become troubling from about

103 I-30 104 I-11, page 563 105 February 2023, and she lodged her application for defined benefits on 25 May 2023. It appears that Ms Fernando was paid income replacement benefits; a letter of 18 November 2024 from the respondent to the applicant reports her pre-injury income as $1,510.73 per week and foreshadows payments in accordance with regular submission of fitness for work certificates from her doctor (the letter mistakenly treats Ms Fernando 106 as having lodged her defined benefits claim within 13 weeks of the accident). On 3 February 2025 the respondent wrote to Ms Fernando with a decision about her earning capacity after the accident, advising her that her income replacement benefits would now 107 be reduced to zero (the letter calculates the zero outcome in an equation that is arithmetically mistaken, owing to the inclusion of an erroneous numerical amount). On 108 16 February 2025 Ms Fernando requested internal review, and on 25 February 2025 109 the respondent affirmed the earlier decision.

84. As noted earlier, entitlement to defined benefits under the MAI Act derives from an injury sustained in a motor accident in the Territory; since the subject accident did not cause the spinal pathology, and the symptoms of that pathology, she is not entitled to any defined benefits in respect of her spinal condition. The same conclusion can be reached by examining the income replacement provisions. Under the MAI Act the amount of income replacement benefits to be paid is calculated using a factor that is the difference between the injured person’s pre-injury income (for an employed person) and their post-injury earning capacity. Post-injury earning capacity is defined in section 93 to mean the amount the person is capable of earning in paid work to which they are reasonably suited given their training, education and experience, based on the insurer’s assessment of their fitness for work. Section 100 allows the insurer to determine the injured person’s post-injury earning capacity, taking into account matters such as the nature of the injury and recovery from it, any income the person earned after the injury occurred, the person’s treatment and care needs, and any fitness for work certificates. These matters are

105 I-2 106 I-18 107 I-19 108 I-20 109 I-16, pages 3-4; the date of application for review is given as 16 February 2026, and that is also the date in Ms Fernando’s application (I-20) elaborated on in guideline 8 of the Motor Accident Injuries (Income Replacement Benefit) Guidelines 2021.

85. The insurer relied once again on the report of Dr Coroneos in reaching the conclusion that the accident did not cause the applicant’s spinal pathology, nor her reported symptoms. It is those symptoms that prevented her from being able to work. I have noted earlier that several doctors, including Dr Coroneos, but also Drs Gawarikar and Aponso, have noted the difficulty in aligning the radiological findings and the reported symptoms, with the symptoms not appearing to the doctors to reflect the radicular pattern and distribution expected from the C5/C6 pathology identified on the scans. Is it possible, then, that the symptoms reported by Ms Fernando arise from some other comorbidity, perhaps causally connected to the accident — for example, from a whiplash-associated disorder (WAD) of the kind reported on in the attachment to the internal review decision 110 in matter MAI 8/2024?

86. An examination of the material on WAD in that report, and a comparison with the reports of the treating doctors, shows that WAD is associated almost entirely with neck-related symptoms, whereas Ms Fernando’s symptoms are focused especially in her hands and arms. Further, there is no suggestion from any of the doctors, including those who commented on the absence of the radicular distribution of symptoms, of any cause or source of those symptoms other than the spine. And any alternative theory of this kind, if it is to take the place of the respondent’s, must not only be plausible; it must be so overwhelmingly to be preferred on the evidence that not to adopt it would be an error of law. The alternative falls well short of that standard.

87. I have not found any error in the respondent’s conclusion that the accident did not cause the spinal pathology or the reported symptoms; nor can I see any in the decision that the accident, not being related causally to the symptoms, cannot have reduced the applicant’s earning capacity. It follows that any reduction in earning capacity arises not from the accident but from other factors, and in respect of the respondent’s liability for the accident there is no difference between pre-accident earnings and post-accident earning capacity. The amount of income replacement benefits is zero, as determined by the respondent.

110 I-1, pages 10-106

88. Accordingly, the decision in MAI 2/2025 is affirmed.

Conclusion

89. The applicant has not been able to show error of fact or law in the respondent’s conclusion that her spinal pathology, and the symptoms associated with it, were not caused by the subject accident. If that conclusion is not disturbed, it follows that the surgery is not reasonable and necessary, and there is no basis for paying income replacement benefits.

Order The Tribunal orders that: 1. The respondent’s decision in MAI 8/2024 that the proposed spinal surgery is not reasonable and necessary is affirmed.

2. The respondent’s decision in MAI 2/2025 that the amount of income replacement benefits payable to the applicant from 3 February 2025 is zero is affirmed.

……………………………….. Senior Member M Hyman

Date of hearing: 8 July 2025

Solicitor for the Applicant: Mr J Reid

Solicitor for the Respondent: Mr J Iliopoulos