Tribunal upholds insurer’s refusal to fund a TENS machine and MRI after a minor rear-end crash (VCAT, 2026)

What happened

In March 2020 the applicant was a passenger in a station wagon stopped at a red light when another car failed to stop and hit it from behind. Police and an ambulance came to the scene. The applicant was taken to hospital and discharged three days later with a diagnosis of musculoskeletal lower back pain and a certificate saying he was unfit for work for about a fortnight because of an "acute flare up of chronic back pain".

The medical records before the Tribunal showed a long history of back trouble. The applicant had injured his back in a fall at work around 2007, had been prescribed opioid pain medication regularly from 2010 onwards, and had back surgery in April 2012 that did not resolve his pain. In the months before the crash he had difficulty walking, used a walking stick, had an MRI scan to investigate his condition, and had discussed applying for a disability support pension with his long-term doctor. A hospital neurosurgery clinic had reported in November 2019 that he had "a complicated picture of pain" including low back pain and pain in both legs, and had discharged him because surgery was not recommended.

The applicant said that before the crash his leg pain was only on the left side and that the crash brought new pain in his right leg. The Tribunal preferred the written records made at the time, which recorded pain in the right leg or both legs well before the crash. Photographs showed only minor damage to the boot door and bumper. The Victoria Police incident report said the damage was "very minor", that no airbags went off, and that police and Ambulance Victoria believed the passenger's injuries were not caused by the collision. The Ambulance Victoria record said the car behind was travelling at under about 10km/h and noted "chronic back pain for 20 + years" with no improvement after the 2012 surgery.

The Transport Accident Commission accepted liability for some treatment of the flare-up, and did not refuse psychological or psychiatric treatment. It then made three refusals: in September 2020 it declined to pay for a TENS machine (a small device that sends a mild electrical current to the skin to dull pain); later that month it declined to fund a requested MRI of the neck and left shoulder; and in December 2020 it declined to accept further liability for physical injuries including back and neck conditions. In the 18 months after the crash the applicant had at least three MRI scans and saw an orthopaedic surgeon and a neurologist. None of those reports identified an injury that did not already exist before the crash.

What each side wanted

The applicant asked the Tribunal to overturn all three refusals, saying the MRI of his neck and left shoulder and the TENS machine were related to the crash, and that his physical injuries including his back and neck conditions were a direct result of it. The Transport Accident Commission's December 2020 letter had said there was no evidence of any new physical injury from the crash; at the hearing it relied on an orthopaedic surgeon's expert report and evidence that the applicant had suffered a musculoligamentous injury (a strain of muscles and the tissue connecting the bones) in the crash, which in most similar cases would be expected to settle within about three months.

What the tribunal decided

The Tribunal affirmed all three decisions. The decision of 10 September 2020 not to accept the claim for a TENS machine was affirmed. The decision of 28 September 2020 not to fund the requested MRI scan was affirmed. The decision of 4 December 2020 not to accept further liability for physical injuries, including back and neck conditions, was also affirmed.

No money was ordered to be paid. "Affirmed" means the Tribunal agreed with the insurer's decision and left it standing, so the refusals remain in place.

Why the tribunal decided it that way

On a review like this the Tribunal stands in the shoes of the original decision maker and can affirm, vary or set aside each decision, under section 77 of the Transport Accident Act 1986 (Vic) and section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The Tribunal said it had regard to the objects of the Act in section 8, including providing suitable and just compensation to people injured as a result of transport accidents. Under section 3 of the Act an "injury" means a physical injury suffered by someone directly involved in a transport accident, and references to an injury are to injuries caused by the accident.

The Tribunal set out three points about how causation is approached. The accident only has to be a cause of the injury, not the sole cause. To find for the applicant, the Tribunal must be satisfied that the evidence justifies an inference, drawn from facts proved by admissible evidence, of a probable connection between the accident and the condition. And neither side carries a burden of proof: the decision is made on all the material before the Tribunal.

Applying that, the Tribunal found the applicant did suffer an injury in the crash, but only a musculoligamentous strain that caused an acute flare-up of his existing chronic pain and had resolved within no more than three months. It found his underlying back injury at the L5/S1 level came from the 2007 fall at work, was unresolved after the 2012 surgery, and was unrelated to the crash. The documents it found most persuasive were the records made at the time: the police and ambulance reports, the hospital discharge summary and certificate, radiology reports showing no abnormality in the neck and "no interval change" in the lower spine since a scan taken before the crash, letters from an orthopaedic surgeon and a neurologist, and years of GP notes recording pain medication. Where the applicant's oral evidence differed from his own signed statement made weeks after the crash, the Tribunal preferred the earlier statement, because six years had passed before the hearing.

It followed that each refusal stood: the TENS machine was to relieve chronic pain from the pre-existing condition, the further MRI was not needed given the scans already done showing no new injury, and by December 2020 the flare-up caused by the crash had already settled. The Tribunal noted that none of the three decisions under review refused psychological or psychiatric treatment, so that was not part of what it decided.

What this means if you are in a similar position

If you are in a similar position, this decision shows how a tribunal separates an existing condition from a new injury. Where someone already has a long-standing problem, the question is not whether they are in pain, but whether the incident caused the pain or made it worse, and for how long. An accident does not have to be the only cause for a claim to succeed, but there has to be evidence supporting a probable connection between the accident and the condition claimed.

It also shows how much weight records made at the time can carry. Here the hospital notes, the ambulance record, the police report, the radiology comparisons against an earlier scan and years of GP notes all pointed the same way, and they were preferred over later recollections and over a report prepared years afterwards. Where a person's own account at the hearing differed from their own written statement made soon after the event, the earlier written statement was treated as the more reliable one. Decisions like this also turn on scope: the insurer's refusals were each looked at separately, and matters the insurer had not refused were not part of the review.

Where a compensation body or insurer refuses to fund treatment or declines liability, the step most people take first is a written request to the decision maker setting out what was refused, what they are asking for and the records that support it, with the treating practitioners' reports attached. If that does not resolve it, the next step is usually an application for review by the tribunal or body that has the power to look at the decision again.

How to apply: our step-by-step guide to a VCAT application. More decisions: VCAT cases and other civil disputes.

Source: Demir v Transport Accident Commission [2026] VCAT 812 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.