Gibbin v AAI Ltd t/as GIO - [2025] NSWPICMP 523

DETERMINATION OF REVIEW PANEL
CITATION:	Gibbin v AAI Ltd t/as GIO [2025] NSWPICMP 523
CLAIMANT:	Kathleen Gibbin
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Les Barnsley
DATE OF DECISION:	17 July 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; review of Medical Assessment Certificate (MAC); finding the accident caused threshold injuries; assessment by the Review Panel of whether the claimant suffered a threshold injury as cervical spine injury, left shoulder injury and thoracic spine; radicular symptoms after accident but no verifiable radiculopathy; left shoulder injuries present after accident but presented as aggravation of degenerative conditions; claimant’s left shoulder treated with appropriate manipulation under anaesthetic (MUA); scans after MUA showed full thickness rotator cuff tears; submissions sought from parties on this point before re-examination; no objective verifiable radiculopathy in line with Motor Accident Guidelines; credible claimant; Review Panel considered whether MUA caused consequential complete or partial rupture of tendons, ligaments, menisci or cartilage; no history of cervical or shoulder conditions before accident; collision capable of causing injuries; consistent symptoms; Review Panel considered CLA, Briggs No 2 on causation and Mahony v J Kruschich (Demolitions) Pty Ltd on consequential injury; Held – Referred left shoulder injury is not a threshold injury; Review Panel was satisfied that the post-accident treatment caused a consequential injury; MAC revoked.
DETERMINATIONS MADE:	Review Panel assessment of threshold injury This certificate is issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act) 1. The Review Panel revokes Medical Assessor Rosenthal’s further certificate dated 17 August 2024. 2. The Review Panel find the accident caused the following injuries: · cervical spine – aggravation of underlying cervical spondylosis, and · left shoulder – rotator cuff tear. 3. The shoulder injury is a non-threshold injury under the s 1.6(2) definition of the MAI Act.

REASONS

Background

Kathleen Gibbin (the claimant) was injured in an accident on 21 March 2019. She was the driver and wearing a seat belt driving her family to an event.
The insured vehicle hit her in the rear as she was driving on a highway at approximately 80kmph. She was forced forward against the seat belt but did not recall hitting anything within the car with her arms or head.
The insurer is responsible for loss arising from the claimant’s injuries from this accident under the Motor Accidents Injuries Act 2017 (MAI Act)
The insurer and the claimant are in a dispute about whether the claimant’s injuries caused by this accident are threshold injuries (formerly legislated as minor injuries) as defined in s1.6 of the MAI Act.
The claimant applied to the Personal Injury Commission (the Commission) to resolve this dispute.
The Commission referred the following injuries to a Medical Assessor to resolve:
·        cervical spine;
·        thoracic spine, and
·        left shoulder.

There were earlier assessments addressing s 1.6 of the MAI Act and eventually Medical Assessor Rosenthal conducted a further medical assessment and produced a certificate dated 17…

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 523
Decision Date: 17 July 2025

CaseChat Overview and Summary

Gibbin v AAI Limited t/as GIO is a decision concerning the review of a Medical Assessment Certificate (MAC) under the Motor Accidents Injuries Act 2017. The claimant, Gibbin, sought review of a MAC that determined the injuries she suffered were not of a threshold nature. The Review Panel was required to assess whether Gibbin's cervical spine injury, left shoulder injury, and thoracic spine injury met the threshold for compensability following a motor accident. The Review Panel concluded that the left shoulder injury was not a threshold injury as it was a pre-existing condition aggravated by the accident.

The key legal issues involved whether Gibbin's injuries were of a threshold nature as defined by the Motor Accidents Injuries Act 2017. The Review Panel had to consider the evidence on whether the claimant suffered a verifiable radiculopathy, and whether the left shoulder injury was a consequential injury caused by the accident or an aggravation of a pre-existing condition. The Review Panel also had to examine whether the accident was capable of causing the injuries sustained by Gibbin. The decision hinged on interpreting the Motor Accident Guidelines and applying relevant legal principles regarding causation and consequential injury, as outlined in cases such as CLA and Briggs No 2.

The Review Panel found that while Gibbin had suffered radicular symptoms following the accident, there was no verifiable radiculopathy in accordance with the Motor Accident Guidelines. It was noted that Gibbin had no history of cervical or shoulder conditions prior to the accident. The Panel considered the evidence and submissions from both parties before concluding that Gibbin was a credible claimant. The Panel found that the claimant's left shoulder injury was not a threshold injury as it was an aggravation of degenerative conditions rather than a new injury caused by the accident. The Review Panel determined that the treatment Gibbin received post-accident, specifically the manipulation under anaesthetic (MUA), caused a consequential complete or partial rupture of tendons, ligaments, menisci, or cartilage. Consequently, the Review Panel revoked the MAC, finding that the left shoulder injury was not of a threshold nature.

The final orders included the revocation of the MAC, with the Review Panel ruling that the referred left shoulder injury was not a threshold injury under the Motor Accidents Injuries Act 2017.

Orders