AAI Limited t/as GIO v McCartney - [2025] NSWPICMP 321

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v McCartney [2025] NSWPICMP 321
CLAIMANT:	Judith McCartney
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
SENIOR MEMBER:	Brett Williams
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Alan Doris
DATE OF DECISION:	8 May 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; where Medical Assessor (MA) found post-traumatic stress disorder (PTSD) caused by the accident not a threshold injury; Held – claimant suffered specific phobia (cars) as a result of the accident; the diagnosed psychological injury is not a threshold injury; MAC revoked as the Review Panel’s diagnosis differed from that of the MA; new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of assessment of Medical Assessor Rikard-Bell dated 9 November 2023 and certifies that specific phobia (cars) caused by the accident on 4 July 2021 is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

Judith McCartney was injured in a motor accident at Kurri Kurri on 4 July 2021 (accident). Following the accident she made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as GIO (insurer).
A dispute has arisen between the claimant and the insurer about whether a psychological injury caused by the accident is a threshold injury for the purposes of the MAI Act. The dispute is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The dispute was referred to Medical Assessor Rikard-Bell for assessment. On 9 November 2023 the Medical Assessor certified that post-traumatic stress disorder that had been caused by the accident was not a threshold injury for the purposes of the MAI Act.
The insurer sought a review of the assessment under s 7.26 of the MAI Act. The President’s Delegate was satisfied there was reasonable cause to suspect that the assessment was incorrect in a material respect. The review application was accepted and referred to a review panel.
This review panel (Panel) has been constituted by the President of the Personal Injury Commission (Commission) to conduct the Review of the Assessment (Review).

THE REVIEW

The Panel is to conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the Panel is to be constituted by two medical assessors and a member assigned to the Motor Accidents Division of the Commission.
The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act. Although styled a "review", the Panel is determining afresh the medical assessment matters referred to it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at…

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 321
Decision Date: 8 May 2025

CaseChat Overview and Summary

In the case of AAI Limited trading as GIO versus McCartney, the parties were engaged in a dispute regarding the classification of a motor accident injury under the Motor Accident Injuries Act 2017. The matter was heard and determined by the relevant court. The primary issue before the court was whether the injury sustained by McCartney, as diagnosed by a Medical Assessor, qualified as a threshold injury under the Act. The Medical Assessor had determined that McCartney's post-traumatic stress disorder (PTSD) was caused by the accident, but concluded that it was not a threshold injury. However, the court found that McCartney had developed a specific phobia of cars as a result of the accident, and that this diagnosed psychological injury did not constitute a threshold injury under the Act.

The court’s reasoning involved a detailed examination of the evidence presented regarding the nature and extent of McCartney’s injuries. The court noted that while the Medical Assessor had diagnosed PTSD, the Review Panel had concluded that McCartney's specific phobia was the more accurate diagnosis. Given that the Review Panel's diagnosis differed from that of the Medical Assessor, the court revoked the original Medical Assessment Certificate (MAC) and issued a new certificate reflecting the Panel's findings. Consequently, the court determined that McCartney's injury, as diagnosed by the Review Panel, did not meet the criteria for a threshold injury under the Act.

The outcome of the case resulted in the revocation of the original MAC and the issuance of a new certificate. This decision underscores the importance of accurate diagnosis in determining the classification of injuries under the Motor Accident Injuries Act 2017. The court's ruling also highlighted the procedural steps required when there is a discrepancy between the findings of a Medical Assessor and those of a Review Panel. The final orders included the revocation of the existing MAC and the issuance of a new certificate, which accurately reflected the Review Panel's diagnosis.

Orders