INSIGHTS: The Limits of External Review

Fernando v Insurance Australia Ltd t/as NRMA (Motor Accident Injuries) [2026] ACAT 16

Meridian Lawyers acted for NRMA in the above proceedings. The decision provides clear guidance on the limits of external review under the MAI Act.

Key Takeaways

• On external review under section 193 of the Motor Accident Injuries Act 2019 (ACT), the ACT Civil and Administrative Tribunal found no error of fact or law in the respondent’s conclusion that the applicant’s cervical spine pathology was degenerative and not caused by the accident. Both the decision to deny approval for cervical fusion surgery, and the decision to reduce income replacement benefits to zero, were affirmed.
• The Tribunal confirmed that the respondent’s reliance on two independent medical examiners, a neurosurgeon and a radiologist, whose opinions were properly formed, supported by detailed reasoning, and consistent with the radiological evidence, did not constitute an error of fact or law.
• The reports of the applicant’s treating doctors were found to focus on treatment options and clinical need rather than causation. None of the treating practitioners had undertaken a systematic determination of whether the accident caused the spinal pathology, and their opinions did not establish that the respondent’s causation conclusion was reached in error.
• The applicant’s alternative argument, raised for the first time at the hearing, that the accident may have aggravated a pre-existing but asymptomatic degenerative condition, was found to be unsupported by any medical evidence. No doctor or allied health professional had referred to that possibility, and the Tribunal declined to adopt it.
• The decision reinforces that on external review under section 193, the onus lies on the applicant to demonstrate an error of fact or law in the insurer’s internally reviewed decision. The Tribunal is not conducting a fresh assessment of the evidence; it is determining whether the decision under review was lawfully reached. Attempts to recast that exercise as a merits review will not succeed.

Background

Ms Sumali Fernando was injured in a motor vehicle accident on 19 April 2022. She applied under the Motor Accident Injuries Act 2019 (ACT) (the MAI Act) for defined benefits. The insurer, Insurance Australia Limited trading as NRMA (the respondent), accepted liability for injuries sustained in the accident.

Two disputes arose. In matter MAI 8/2024, the respondent rejected Ms Fernando’s request for approval of cervical fusion surgery proposed by her neurosurgeon, Associate Professor Sarah Olson, on the basis that the surgery was not reasonable and necessary in the circumstances. In matter MAI 2/2025, the respondent reduced Ms Fernando’s income replacement benefits to zero from 3 February 2025, on the basis that her inability to work did not arise from an injury caused by the accident. Both decisions were affirmed on internal review, and Ms Fernando applied to the ACT Civil and Administrative Tribunal (The Tribunal) for external review of each under Part 7 of the MAI Act, including section 192.

The two matters were heard together on 30 September 2025, proceeding by way of final submissions only under section 197 of the MAI Act. The evidence before the Tribunal was limited to that which was available to the internal reviewer at the time of each decision, together with material admitted under section 197(3).

The Central Issue: Causation

As Senior Member Hyman observed at the outset, the question of causation was central to both matters. If the cervical spine pathology for which Ms Fernando sought surgical treatment was not caused by the accident, then she was not entitled to treatment and care benefits for that pathology (including payment for the surgery by the insurer). If that same condition was preventing her from working, she was not entitled to income replacement benefits for it either.

The applicant contended that the respondent’s internally reviewed decisions were affected by errors of both fact and law. Her primary argument was that the respondent had erred in fact by relying on the initial report of its independent medical examiner, 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 accident. An alternative argument, that the accident had exacerbated a pre-existing but asymptomatic degenerative condition, was raised for the first time at the hearing.

The respondent’s position was that there was no error in either decision. The internal reviewer had drawn conclusions that were available on the evidence, and were reached by a logical and thorough process consistent with the MAI Act and applicable Guidelines. The respondent submitted that the applicant’s challenge was, in substance, an invitation for the Tribunal to conduct a merits review, which is not the function of external review under section 193.

The Medical Evidence

Initial presentation and treatment

Ms Fernando’s GP recorded a presentation the day after the accident with symptoms including neck pain, shoulder pain, lower back pain, and left wrist pain, described as “whiplash”. Critically, the GP’s examination found no worrying signs, and the treatment plan was conservative: simple analgesics and rest, with a review after about a week. No further GP consultations of any kind took place for approximately seven or eight months.

In the year between the accident and Ms Fernando’s application for defined benefits (lodged in May 2023), the only treatment she received was physiotherapy from Mr Payne. The Tribunal noted that when Ms Fernando first presented to Mr Payne as a new patient, she could not recall any trauma or acute mechanism driving the onset of her symptoms. The initial reason for treatment was described as “upper limb neural tension” and later “Bilateral? Carpal Tunnel Syndrome”. Mr Payne’s conclusion was that the condition’s cause was unclear.

Imaging

A series of MRI scans of the cervical spine from February 2023 through to January 2025 showed progressive degenerative changes. The earliest scan (February 2023) revealed spondylotic changes and degenerative disc disease at C5–C6 and C6–C7. A subsequent scan in January 2024 identified worsening changes at C5/6, including disc protrusion, annulus tear, and moderate to severe foraminal narrowing with nerve root impingement. A September 2024 scan noted disc degeneration with cord impingement at C5/6, prompting the radiologist to recommend neurosurgical review. As the Tribunal observed, the language used by treating doctors and radiologists alike was far more consistent with naturally occurring degeneration than with acute traumatic injury.

The IME reports

The respondent obtained independent assessments from Dr Coroneos, a neurosurgeon, and Dr Korber, a radiologist.

Dr Coroneos examined Ms Fernando in July 2024 and provided a comprehensive report. His conclusions were emphatic: the accident did not cause the cervical spine condition; the reported symptoms did not correspond with the imaging findings; and surgical treatment was not indicated. Dr Coroneos identified the imaging changes as those of cervical spondylosis with no structural injury change. He found no radiculopathy, myelopathy, or nerve root compression on examination, and stated that the effects of the soft tissue injury sustained in the accident had ceased. In two supplementary reports, Dr Coroneos reinforced these conclusions, noting the absence of correlation between the imaging findings at C5/6 and the symptoms and signs observed on examination.

Dr Korber, the radiologist, reached a similar conclusion. He 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. He noted that the disc protrusions could cause radiculopathy but, if the radiculopathy was not present at the time of the accident, there was no causal connection to the motor vehicle accident. He supported his opinion with a reference from the medical literature documenting the existence of such changes in asymptomatic patients.

The treating doctors

The applicant relied on reports and letters from several treating practitioners, including Associate Professor Olson (neurosurgeon), Dr Aponso (spine surgeon), and Dr McMillen (neurosurgeon). Each recommended surgical intervention, but, as the Tribunal carefully analysed, none had undertaken a systematic assessment of whether the accident caused the cervical spine condition.

Dr Olson’s letter to Ms Fernando’s GP noted the accident and stated that Ms Fernando had a whiplash injury which had progressed to cause radicular symptoms, but provided no reasons for that causal conclusion. The Tribunal regarded this as a convenient assumption rather than a considered opinion formed with the necessary rigour. Dr Aponso referred to the accident but concluded that Ms Fernando’s symptoms were “hard to correlate” with the imaging and that the degenerative change at C5/6 was “longstanding”. Dr McMillen’s views evolved over time: initially he did not support a finding of myelopathy and was reluctant to recommend surgery, but by March 2025 he identified worsening spondylopathy with signs of early and progressive myelopathy, though without directly addressing causation from the accident.

The Tribunal’s Analysis

The nature and scope of external review

Perhaps the most significant aspect of the decision, and the most useful for insurers going forward, is the Tribunal’s treatment of the nature and scope of external review under section 193 of the MAI Act.

Section 193 provides that applicants for defined benefits may seek ACAT review of an ACAT reviewable decision “on a question of law or fact”. The Tribunal confirmed, consistent with the line of authority in Neish, Williams and Montgomery[1], that the effect of that phrase is to limit the Tribunal’s review. Senior Member Hyman stated that 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’s task is confined to determining whether the internally reviewed decision is affected by a material error of fact or law.

The evidence before the Tribunal is limited to that which was available to the internal reviewer, supplemented by any material admitted under section 197(3), and the onus lies on the applicant to establish error.

The applicant’s alleged errors

The applicant’s case, in essence, was that the respondent’s reliance on the report of Dr Coroneos was misplaced because he had not received the complete range of treating doctors’ reports, and that his report encouraged the internal reviewer to disregard the treating evidence and draw wrong conclusions from the delayed onset of symptoms. The respondent’s decisions on causation, surgery, and income replacement were said to have been inevitably compromised by that foundational error.

Why the Tribunal rejected a merits review

The respondent argued that this was, in substance, an invitation to conduct a merits review. Senior Member Hyman accepted there was “a point to that argument”, observing at [53] that to the extent the applicant was asking the Tribunal to decide which conclusion on causation should be preferred, she was “putting a question that is not permitted under the MAI Act”.

This distinction in approach is important. Senior Member Hyman stated:

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.

The decision makes clear that external review under the MAI Act is not an exercise in weighing competing evidence and selecting the better view. The applicant must demonstrate that the reviewer’s conclusion was not reasonably open on the available material. The respondent’s position in this case was that the internal reviewer arrived at conclusions that were “logical, thorough, well-reasoned and in accordance with the MAI Act and Guidelines”, and the Tribunal’s detailed examination of the evidence confirmed that position.

Causation finding

The Tribunal found no error in the respondent’s conclusion that the accident did not cause the applicant’s cervical spine pathology. Several factors were significant:

• The gap in symptoms: apart from a brief and relatively minor presentation the day after the accident, there were no recorded symptoms for approximately seven or eight months. The Tribunal could not accept that the symptoms immediately after the accident represented some kind of momentary appearance of radiculopathy that then disappeared for months before resurfacing.
• The language of degeneration: the radiological reports and treating doctor reports consistently described the cervical spine changes using language far more consistent with naturally occurring degenerative processes than with an acute traumatic injury.
• The difficulty in aligning symptoms with imaging: several doctors, including those instructed by the applicant, commented on the difficulty of correlating Ms Fernando’s reported symptoms with the pathology identified on imaging. The specialists were looking for radicular symptoms consistent with C5/C6 pathology and could not find them.
• The absence of any treating doctor opinion systematically addressing causation: while the Tribunal acknowledged that treating doctors focus on treatment rather than causation, none of their reports provided the kind of reasoned causal analysis that could establish that the respondent’s conclusion was reached in error.

The Tribunal also addressed the applicant’s alternative argument, raised for the first time at the hearing, that the accident may have aggravated a pre-existing degenerative condition. While it accepted the proposition was plausible in the abstract, there was simply no medical evidence in support of it. No doctor or allied health professional had even referred in passing to that possibility.

Weight given to the IME reports

The applicant argued that the respondent’s reliance on the IME reports amounted to an error because Dr Coroneos had not been sent all of the treating doctors’ reports, and that his conclusions were contrary to the treating evidence. The Tribunal was unpersuaded. Dr Coroneos had drawn on virtually all the evidence originally available to the internal reviewer, and his conclusions were supported by Dr Korber’s independent radiological assessment. Both opinions were properly formed and supplied with detailed reasons.

The Tribunal acknowledged the inherent one-sidedness of the IME process under the MAI Act (the insurer commissions the expert; the injured person has no equivalent right to commission their own) and treated the IME reports with an appropriate degree of scepticism. But it found nothing in the evidence that would warrant treating the respondent’s reliance on those reports as an error. Having read Dr Coroneos’s reports, the Tribunal doubted that the additional medical material available in May 2025 (when leave was given to rely on further evidence) would have prompted him to change his conclusions.

The Tribunal further declined to draw a Jones v Dunkel[2] inference from the respondent’s decision not to seek a further report from Dr Coroneos, accepting the respondent’s explanation and noting that a radiologist (Dr Korber) had been engaged instead.

Surgery and income replacement

Having found no error in the causation conclusion, the remaining issues fell away. There was no error in the decision that the proposed surgery was not reasonable and necessary, because it was directed at spinal pathology that was not caused by the accident. Similarly, any reduction in Ms Fernando’s earning capacity arose from a condition unrelated to the accident, and the respondent’s determination that the income replacement benefit was zero was not affected by error.

Practical Implications

First, and most significantly, the decision provides a clear and detailed articulation of the limits of external review under section 193. The Tribunal’s reasoning should be drawn to the attention of internal reviewers and claims managers: where the review process has been conducted logically and in accordance with the Act and Guidelines, the applicant bears the onus of establishing error. An applicant who invites the Tribunal to prefer one body of evidence over another, or to decide which conclusion on causation should be preferred, is in substance seeking a merits review. The Tribunal will recognise that for what it is, even if it goes on to examine the evidence to satisfy itself that no error has occurred.

Second, the decision highlights the importance of IME reports being comprehensive and well-reasoned. The Tribunal was ultimately satisfied that Dr Coroneos and Dr Korber had engaged properly with the available material.

Finally, the Tribunal’s treatment of the applicant’s alternative argument on aggravation is instructive. An argument that the accident aggravated a pre-existing condition must be grounded in the medical evidence; it cannot be raised for the first time at the hearing without any evidentiary foundation.

The decision provides clarity for insurers on the disciplined and confined nature of external review under the MAI Act.

Further information

This article was written by Principal Lawyer Angel Li and Special Counsel Jesse Iliopoulos. For further information or advice on any related matters please contact Angel or Jesse.

Disclaimer: This information is current as of March 2026. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.

[1] Neish v Insurance Australia Limited t/as NRMA [2022] ACAT 24; Williams v AAI Limited t/as GIO [2021] ACAT 100; Montgomery v Insurance Australia Limited t/as NRMA [2024] ACAT 60.

[2] Jones v Dunkel [1959] 101 CLR 298.