AAI Limited t/as GIO v BTU - [2025] NSWPICMP 55

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v BTU [2025] NSWPICMP 55
CLAIMANT:	BTU
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Brett Williams
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	31 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; insurer’s application for review of medical assessment under section 63; dispute about whether psychiatric impairment was greater than 10%; where Medical Assessor certified accident caused psychological condition gave rise to a permanent impairment that is greater than 10%; application by insurer for re-examination by medical members of the Review Panel to be undertaken in person rather than by audio-visual link; application of the rule in Jones v Dunkel in relation to a medico-legal report not served by insurer; Held – insurer’s application for in person examination rejected; no inference drawn in accordance with the rule in Jones v Dunkel; claimant had a pre-existing adjustment disorder and pre-existing impairment; accident resulted in aggravation of pre-existing condition; impairment as a result of accident not greater than 10%; certificate revoked and new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Canaris dated 28 July 2023. 2. Certifies that the degree of permanent impairment of the claimant as a result of the adjustment disorder caused by the motor accident on 22 March 2017 is not greater than 10%.

STATEMENT OF REASONS

BACKGROUND

BTU (claimant) was injured in a motor accident at Carnes Hill on 22 March 2017 (accident). Following the accident he made a claim for damages under the Motor Accidents Compensation Act 1999 (MAC Act) on AAI Limited t/as GIO (insurer).
There is a dispute between the claimant and the insurer as to whether, for the purposes of s 131 of the MAC Act, the degree of his permanent impairment as a result of psychological injury caused by the accident is greater than 10% (the dispute). The dispute is a medical assessment matter for the purposes of Part 3.4 of the MAC Act: s 58(1)(d) MAC Act.
The dispute was assessed by Medical Assessor Canaris, who gave a certificate and reasons dated 28 July 2023 (Assessment). The Medical Assessor certified that:
(a)    persistent depressive disorder (dysthymia) with persisting major depressive episode and anxious distress and somatic symptom disorder with predominant pain were caused by the accident;
(b)    the persistent depressive disorder (dysthymia) with persisting major depressive episode and anxious distress gave rise to a 20% permanent impairment;
(c)    somatic symptom disorder with predominant pain does not give rise to whole person impairment, and
(d)    the accident caused persistent depressive disorder (dysthymia) with persisting major depressive episode and anxious distress gives rise to a permanent impairment that is greater than 10%.
The insurer sought a review of the Assessment in accordance with s 63 of the MAC Act. The President’s delegate subsequently determined that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The review application was accepted, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICMP 55
Decision Date: 31 January 2025

CaseChat Overview and Summary

AAI Limited, trading as GIO, sought a review of a medical assessment under section 63 of the Motor Accidents Compensation Act 1999, disputing the certification that the claimant, BTU, had suffered a psychiatric impairment greater than 10% as a result of a motor accident. The insurer applied for a re-examination by the Review Panel to be conducted in person rather than by audio-visual link, and argued that no adverse inference should be drawn from the failure to serve a medico-legal report. The case was heard in the relevant Australian court, which was required to decide whether the application for in-person examination should be granted and whether an adverse inference should be drawn under the rule in Jones v Dunkel.

The court considered the nature of the psychiatric condition and the impact of the accident on the claimant’s pre-existing psychological state. It noted that the claimant had a history of adjustment disorder and pre-existing impairment, which had been exacerbated by the accident. The court emphasised that the aggravation of a pre-existing condition does not necessarily result in a greater impairment rating. It held that the claimant’s impairment due to the accident was not greater than 10%. Consequently, the original certificate was revoked, and a new certificate was issued reflecting the correct assessment of the impairment.

In rejecting the insurer’s application for an in-person examination, the court clarified that it would not draw an adverse inference in accordance with the rule in Jones v Dunkel. The court determined that the failure to serve the medico-legal report did not warrant such an inference in this case. The claimant’s pre-existing conditions and the nature of the aggravation of those conditions were thoroughly assessed, leading to the conclusion that the impairment rating should not exceed 10%.

The court's final orders included the revocation of the original medical certificate and the issuance of a new certificate reflecting the correct assessment of the claimant's psychiatric impairment. The insurer’s application for an in-person examination was dismissed, and no adverse inference was drawn from the failure to serve the medico-legal report.

Orders