A New South Wales court has quashed a medical assessment in an Allianz motor accident matter after finding the claimant was denied procedural fairness over proposed spinal surgery.
The case, filed in the Supreme Court on June 27, 2025, concerned whether Allianz Australia Insurance Limited should fund an L5/S1 anterior lumbar interbody fusion for Hamid Reza Yaghoobi Zadehfard, who was injured in a motor vehicle accident on May 9, 2022.
Zadehfard lodged a claim for personal injury benefits on August 4, 2022, alleging physical and psychological injuries, including injury to his lower back radiating to his hips and both legs. Allianz accepted liability for statutory benefits on October 7, 2022, but advised on December 6, 2022 that his benefits had ceased on November 7, 2022.
The plaintiff consulted neurosurgeon and spinal surgeon Dr Peter Khong on August 11, 2022, January 20, 2023 and March 24, 2023. Dr Khong considered analgesia, physiotherapy, steroid injections and surgery as reasonable treatment options. He stated that the plaintiff had failed non‑operative management options and that steroid injections were unlikely to provide long‑term pain relief for his persistent lower back pain. He said surgery was reasonable and necessary because the plaintiff had experienced persistent severe back pain for 10 months since the accident, and he recommended an L5/S1 anterior lumbar interbody fusion.
Consultant orthopaedic surgeon Dr Anil Nair, in a report dated September 19, 2023, stated that the plaintiff had a significant alteration in the patho‑anatomy of the L5/S1 intervertebral motion segment and agreed with Dr Khong that an L5/S1 anterior lumbar interbody fusion was likely to restore the anatomy of that motion segment and improve symptoms.
By letter dated December 14, 2023, Allianz advised that approval for the surgery was not accepted. An internal review conducted on January 3, 2024, affirmed that decision, stating there was significant medical evidence of a pre‑existing lumbar spine injury and degenerative disc disease and that the plaintiff’s lumbar symptoms were not the result of the 2022 accident.
On September 25, 2024, the plaintiff lodged a Medical Assessment application (Form M01) with the Personal Injury Commission. On the form, he identified the dispute as “Treatment and care reasonable and necessary” and did not select the options “Treatment and care relates to the injury caused” or “Treatment or care will improve recovery”. In written submissions filed the same day, he sought a determination that the surgery was reasonable and necessary treatment and care and that the need for surgery was as a result of the accident.
On October 18, 2024, a delegate of the Commission referred the matter to medical assessor Dr Robert Kuru to determine whether the proposed surgery was causally related to the injuries sustained in the motor accident and whether it was reasonable and necessary in the circumstances. Allianz submitted that any requirement for surgery related to pre‑accident factors, including a 2015 lumbar injury, and that the plaintiff’s current symptomatology was the result of degeneration from that earlier injury. Allianz did not secure its own expert medical evidence responding to Dr Khong and Dr Nair.
The plaintiff was examined by Dr Kuru on November 29, 2024. In a medical assessment certificate dated January 6, 2025, the assessor found that the proposed L5/S1 fusion related to the injury caused by the motor accident but that it was not reasonable and necessary. In his reasons, he said there was substantial controversy about spinal fusion for axial back and non‑specific leg symptoms in the presence of degenerative disc disease without significant nerve root compression, and stated that the chance of such surgery leading to a significant improvement in symptoms was in the region of 30%. He also referred to significant public policy recommending against and trying to regulate such surgery, while noting it was still commonly undertaken.
These matters had not been raised by the parties. The assessor did not identify the material on which he relied for the controversy, success rate or public policy.
In the Supreme Court, the plaintiff alleged denial of procedural fairness. Justice Chen held that, although the medical assessor was required to form his own opinion, procedural fairness obliged him to give the plaintiff an opportunity to address critical matters that were not obviously open on the known material. The court found that the assessor had relied on the 30% success rate and the public policy statements, which were material to his decision, without giving the plaintiff the chance to respond by evidence or submissions. This amounted to a denial of procedural fairness and was a jurisdictional error.
The court extended the time for filing the summons to June 28, 2025, quashed the medical assessment certificate dated January 6, 2025, and ordered that Personal Injury Commission matter M26684/24 be remitted to the President of the Commission to be determined by a different medical assessor according to law. Allianz, as first defendant, was ordered to pay the plaintiff’s costs of the Supreme Court proceedings.
For insurers and medical assessors, the takeaway is clear: if a medical assessment relies on external medical controversy, statistics or policy views to reject treatment, those issues must be identified and the claimant given a fair chance to respond.
