Case: Simmons v QBE Insurance (Australia) Limited [2026] QDC 105
When an injured person’s own doctors recommend surgery but the insurer’s doctors disagree, can the insurer refuse to pay for the treatment? A recent Queensland District Court decision gives a clear answer.
Overview
Ms Simmons was injured in a 2024 motor vehicle accident, where she was not at fault.
Because the accident happened while Ms Simmons was travelling to work, she had both a worker’s compensation and a compulsory third party (CTP) claim. Her worker’s compensation claim was governed by the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”), while her CTP claim was governed by the Motor Accident Insurance Act 1994 (“MAIA”).
Ms Simmons’ treating neurosurgeon, Dr Alexander, recommended that she undergo an Anterior Cervical Discectomy and Fusion, a type of neck surgery, at the C5/6 level of her spine. Workcover Queensland initially refused to fund the surgery through her workers compensation claim. Ms Simmons then asked her CTP insurer, QBE Insurance (Australia) Limited (“QBE”), to fund the surgery as a reasonably rehabilitation service.
QBE refused to fund the surgery, pointing to reports from three specialists who doubted that the surgery would help. The proposed surgery put forward by her treating specialist was supported by an independent expert engaged by Ms Simmons’ lawyer.
The Court disagreed with QBE, and determined that the proposed surgery was reasonable and appropriate rehabilitation under the MAIA. The Court ordered QBE to fund the surgery.
This decision shows that an insurer cannot defeat a rehabilitation funding request by simply obtaining medical opinions that disagree with the injured person’s doctors.
This decision from Judge Porter KC DCJ follows the reasoning in the earlier decision of Justice Davis in McIntyre v AAI Limited [2021] QSC 251.
What Happened
Ms Simmons, 51, had a complicated medical history. She had been in an earlier motor vehicle car accident in 2011 and she took years to recover from the injuries sustained in the 2011 accident.
Ms Simmons said that she had been symptom-free for five years before a second accident on 24 May 2024. The court accepted evidence despite some inconsistencies in her medical records. By 2021, Ms Simmons had effectively returned to working full-time hours as a cleaner.
The 2024 accident involved a side-impact collision with a bus, which aggravated her pre-existing (but at the time reportedly asymptomatic) degeneration in her cervical spine (neck).
QBE was the CTP insurer for the bus and accepted full liability for the accident.
As the accident occurred on her way to work, Ms Simmons also lodged a workers’ compensation claim with WorkCover Queensland.
Under such claim, WorkCover funded some treatment, including a nerve root injection that temporary relieved her symptoms. WorkCover eventually determined that Ms Simmons’ injuries were “stable and stationary” and stopped funding further treatment.
Dr Alexander subsequently asked WorkCover to fund the proposed neck surgery. WorkCover refused after receiving an opinion from another neurosurgeon, who expressed doubt that the physical condition in Ms Simmons’ neck would be improved by the surgery. Importantly, they did not examine Ms Simmons in person.
Dr Alexander later provided a much more detailed report back to WorkCover which maintained his opinion that the surgery was recommended. However, WorkCover maintained its refusal.
Ms Simmons then requested funding of the proposed surgery from QBE through her CTP claim.
QBE obtained further specialist opinions about the proposed surgery. Several specialists questioned whether the operation was appropriate or likely to improve Ms Simmons’ symptoms, despite not having examined her in person.
Ms Simmons’ lawyers also arranged an independent examination by orthopaedic surgeon Dr Michael Thomas, who supported the proposed surgery.
QBE ultimately refused to fund the treatment.
An Application was therefore brought in the District Court to consider the reasonableness of the proposed request and heard by Judge Porter KC DCJ.
The Medical Tug-of-War
Throughout the course of the claim, two orthopaedic surgeons and three neurosurgeons provided opinions. The effect of these opinions was:
For the surgery:
- Dr Alexander, Ms Simmons’ treating neurosurgeon — recommended surgery based on a positive response to a diagnostic nerve block and imaging showing focal C5/6 pathology.
- Dr Thomas, an independent orthopaedic surgeon— examined Ms Simmons, engaged directly with the opposing reports, and concluded the surgery was clinically justified.
Against the surgery:
- Dr Cochrane and Dr Coroneos, neurosurgeons engaged during the claims process, neither of whom examined Ms Simmons — doubted there was clear evidence of radiculopathy and warned that fusing just one level could worsen degeneration elsewhere in the neck.
- Dr FitzPatrick, orthopaedic surgeon — found no clinical signs of radiculopathy and considered surgery “relatively contraindicated” given Ms Simmons’ psychological state.
A sixth specialist, psychiatrist Dr Chalk, also raised concerns about Ms Simmons’ mental health, particularly if the surgery was unsuccessful. Dr Chalk’s concerns were more about the risks if the surgery failed and he didn’t say that her mental health prevented her from undergoing the operation.
How the Judge Resolved It
Judge Porter KC DCJ broke down his analysis into two questions:-
- Is the surgery a “rehabilitation service” under the MAIA — that is, does it restore lost function or improve quality of life following personal injury?
- If so, is the proposed rehabilitation service “reasonable and appropriate” in Ms Simmons’ particular circumstances?
In determining these issues, there was significant overlapping of the two questions. Ultimately, the Court answered both in Ms Simmons’ favour.
The reasoning turned on six key points in determining that the surgery was reasonable and appropriate:
1. The insurer does not control the rehabilitation plan
The responsibility for planning rehabilitation belongs to the claimant, not the insurer. Drawing on the earlier case of McIntyre v AAI Limited [2021] QSC 251, Judge Porter KC confirmed that it’s the injured person and their treating doctors — not the insurer’s hired experts — who are primarily responsible for shaping a rehabilitation plan. Whilst contrary opinions from insurer-appointed doctors are to be considered, the claim does not fail to be a “reasonable and appropriate” one merely because there is expert evidence to the contrary.
2. The quality of the medical evidence mattered more than the number of doctors
The Court preferred Dr Alexander’s and Dr Thomas’s evidence not simply because it supported Ms Simmons, but because those reports directly grappled with the counter-arguments — the nerve block response, the SPECT scan findings, and the risk to adjacent spinal segments — while the opposing reports from Dr Fitzpatrick, Dr Coroneos and Dr Cochrane largely didn’t engage with those points. Further, it was noted that neither Dr Coroneos not Dr Cochrane examined Ms Simmons in person.
3. Dr Thomas’ evidence was particularly persuasive
Dr Thomas was considered by the judge to be particularly well placed to form a view on the likely need for, and efficacy of, the surgery.
4. Mental health concerns did not outweigh potential benefits
While the Court accepted that a failed surgery could harm Ms Simmons’ mental health, it weighed this against the potential upside of a successful outcome, and didn’t find the psychiatric evidence compelling enough to block the proposed surgery. The judge did suggest that Ms Simmons consider psychological support ahead of the operation.
5. Ms Simmons carried much of the financial risk
It was agreed by Counsel for both parties that the financial risk favoured Ms Simmons. It was determined that as the proposed $45,000 surgery cost would ultimately be deducted from her damages award if not separately recoverable, Ms Simmons — not the insurer — was the one carrying the financial risk. That factor weighed in favour of granting the order.
6. WorkCover’s earlier refusal did not determine QBE’s obligations
The judge did not consider WorkCover’s earlier refusal of the proposed treatment as being relevant. The only relevance from the earlier decision by WorkCover to the present request under the MAIA was that Dr Cochrane had not recommended the surgery. As Dr Cochrane’s opinion was not accepted by the judge, the earlier decision had no bearing.
The Result
The Court ruled in Ms Simmons’ favour and ordered QBE to fund the proposed neck surgery.
The surgery was found to be a “reasonable and appropriate rehabilitation service” under section 51(3) of the MAIA.
Why This Case Matters for CTP Claims
This decision reinforces a claimant-friendly principle that was previously stated by Justice Davis in McIntyre v AAI Limited [2021] QSC 251, which is that a CTP insurer can’t defeat a rehabilitation funding request under the MAIA simply by producing a contrary expert opinion.
What matters is whether the claimant’s own medical evidence is itself persuasive and reasonable — not whether it’s unanimous. When determining these matters, Courts will scrutinise how well each expert engages with the opposing evidence, not just count reports on each side.
In the case of Ms Simmons, there were more opinions that disputed the proposed surgery request, however, this was ultimately not the decisive factor. As Dr Thomas and Dr Alexander’s reports directly grappled with the counter-arguments, they were favoured over the competing reports.
This is also a reminder for CTP insurers that just because their expert may provide a contrary opinion to that of a treating provider, they must have regard to the strength of such opinion and consider whether their expert has reasonably justified their opinion. For anyone navigating a CTP claim in Queensland, the case is a helpful illustration of how section 51 Applications for rehabilitation funding are meant to work.
