Torbay v AAI Limited t/as AAMI

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Torbay v AAI Limited t/as AAMI [2025] NSWPIC 541
CLAIMANT:	Mirna Torbay
INSURER:	AAI Ltd t/as AAMI
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	10 October 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant suffered injury; the medical dispute related to whether the claimant sustained a non-threshold injury; a Medical Assessor (MA) found that the claimant suffered a non-threshold psychological injury; that medical assessment was not the subject of review and accepted by the insurer; another MA found that the physical injuries were threshold injuries; claimant sought to review that assessment; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; present review application restricted to threshold dispute which was no longer in issue; any response by the Review Panel on this dispute is not conclusive on the medical assessment matter pertaining to other disputes; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis, and Pham v Shui applied; Held – the application to review the medical assessment dismissed as frivolous and/or vexatious; the maintenance of the proceedings achieves no purpose in changing the outcome of the medical dispute.
DETERMINATIONS MADE:	DETERMINATION 1. The application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act, 2020 as frivolous and/or vexatious.

REASONS

BACKGROUND

There is presently an application for review of a medical assessment before a Medical Review Panel. That Review Panel has requested that the review be dismissed. The application for summary dismissal was referred to me.
For the following reasons the review of the medical assessment is summarily dismissed.
Ms Mirna Torbay (the claimant) suffered physical and psychological injuries in a motor accident on 31 January 2022.
The insurer is liable to pay to Ms Torbay any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant commenced proceedings in the Personal Injury Commission (Commission) seeking findings that she sustained non-threshold injuries. Pursuant to Schedule 2, cl 2 of the MAI Act this is a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The medical assessment of the physical injuries was referred to Medical Assessor Cameron who issued a medical assessment certificate dated 30 January 2025 (the medical assessment). In respect of the physical injuries, the Medical Assessor found that the motor accident caused soft tissue injuries to the cervical, thoracic and lumbar spines and head which were threshold injuries.
The claimant sought a review of the medical assessment.
In a separate medical assessment certificate dated 2 April 2025, Medical Assessor Canaris concluded that the motor accident caused a non-threshold psychological injury (the medical assessment for the psychological injury). Medical Assessor Canaris found that the motor accident caused a somatic symptom disorder with predominant pain.
The insurer did not seek a review of the medical assessment for the psychological injury. It has accepted that the claimant has suffered a non-threshold psychological injury caused by the motor accident and issued a revised notice dated 11 September 2025 accepting liability for the payments of statutory benefits after the 26-week period.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury. References to “minor injury” in these reasons can be interchanged with “threshold injury”.

THE REVIEW

An application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
The Panel met and subsequently issued a direction dated 4 September 2025 which requested submissions from the parties as to why the application should not be dismissed in light of the medical assessment certificate issued by Medical Assessor Canaris.
The parties provided submissions on this issue of whether the Review proceedings should be dismissed.
The insurer submitted that there was no medical dispute, and it has accepted liability for the payment of statutory benefits after the 26-week period.
The claimant maintained that the application should be reviewed by the Panel. The submission, recorded by the Panel in the direction dated 30 September 2025 was:
“On 29 September 2025 the claimant advised the Panel she wished the review to proceed noting there was an error and the claimant’s physical injuries should be assessed by the Panel…. The claimant’s review submissions make no concessions in relation to the assessment of any of these injuries.”

THE REFERRAL FOR SUMMARY DISMISSAL

Following the receipt of further submissions the Panel issued a further direction dated
30 September 2025. The matter was then referred to me on the issue of whether the matter should be summarily dismissed.
On 9 October 20215 the parties were provided with an opportunity to make further oral submissions.
The claimant accepted that the Panel had accurately recorded its submission.[3] It was further submitted that the insurer had denied the claimant’s request for ongoing physiotherapy, possibly in a letter dated 22 May 2025. It was suggested that the resolution of the threshold dispute would impact on that treatment dispute. The claimant otherwise noted that ongoing chiropractic treatment had been approved by the insurer.
[3] At paragraph 18 herein.
The parties’ attentions were drawn to the statement of the President on 2 October 2025 concerning a recent spike in filings of medical assessments and the likelihood of increased delays if the increase continued.

FINDINGS

Section 54 of the Personal Injury Commission Act, 2020 (PIC Act) applies to the Panel review proceedings[4] and relevantly provides that proceedings may be dismissed if:
“(a)    if it is satisfied that the proceedings have been abandoned, or
(b)     if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)     for any other ground of dismissal specified in the Commission rules.”
[4] See Rule 127 (1)(d) of the PIC Rules.
Rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules (the PIC Rules) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:
“(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due dispatch.”
Rule 77 is not relevant to this determination.
Rule 127(3) of the PIC Rules provides that the function of the Commission under s 54 of the PIC Act is given to the President.
Table B of the delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member.
The principles of summary dismissal are discussed in Insurance Australia Ltd v Fayed[5] and those principles are repeated in these reasons. It is sufficient to repeat that a “strike out” (dismissal) application is exercised sparingly and in circumstances where the claimant’s case is taken at its highest.
[5] [2023] NSWPICMP 413.
The insurer has now accepted that the claimant has sustained a non-threshold psychological injury and issued a revised liability notice. The claimant need only establish a non-threshold injury of any type to obtain ongoing statutory benefits for all injuries and pursue a claim for common law damages.[6]
[6] See s 3.11, 3.28 and 4.4 of the MAI Act.
Accordingly, there is no longer a medical dispute as to whether the claimant suffered an injury not defined as a threshold injury.
As noted, the claimant was found by Medical Assessor Canaris to have sustained a
non-threshold psychological injury. That finding is accepted by the insurer. That finding is relevant to any possible future assessment because a past psychiatric diagnosis binds the insurer.
In Lynch v AAI Ltd[7] a Review Panel noted:[8]
“The timing of when radiculopathy can occur was considered in the context of
non-minor injury in David v Allianz Australia Insurance Ltd[9]. The Panel, for the reasons expressed therein, concluded that radiculopathy was satisfied if it was present at any time. We adopt those reasons insofar as they are relevant to the issue of when the psychiatric diagnosis is made.
The only difference in determining the relevant time for the diagnosis of psychiatric injury is that clauses 5.10 and 5.11 direct attention to the condition being ‘present’. However, clause 5.11 states that the diagnosis must be made under DSM-5. DSM-5 provides for a diagnosis of a major depressive disorder which can be described as either in partial remission or full remission depending on the circumstances of the improvement in the condition.[10] That diagnosis, made pursuant to DSM-5, describes a past condition which satisfied a diagnosable psychiatric condition. Further, for the reasons discussed in David, the diagnosis does not have to be made by a Medical Assessor and can be made by a treating doctor (clause 5.5).
That the psychiatric diagnosis may change over time is not only consistent with the provisions of DSM-5 but otherwise consistent with physical injuries. A simple fracture is a non-minor injury within the meaning of the MAI Act but will normally heal prior to any assessment. It would be an absurd interpretation to conclude that as the fracture has healed there has been change in status from the injury being classified as non-minor, when the injury occurred, to one being classified as minor because the injury had healed.”
[7] [2022] NSWPICMP 6 (Lynch) at [44]-[62].
[8] Lynch at [70]-[72].
[9] [2021] NSWPICMP 227 at [84]-[104] (David).
[10] DSM-5, p 188.
Accordingly, the finding by Medical Assessor Canaris and not reviewed, means that the claimant has established that at a particular point in time there was a psychiatric injury not defined as a threshold injury. Consistent with the authorities, this conclusion that the claimant has sustained a non-threshold injury cannot change at a future point.
The insurer has a statutory obligation to act in good faith in connection with the claim.[11] Accordingly, I accept the insurer’s concession and the actions it has taken in accepting the claimant’s ongoing entitlements.
[11] Section 6.3 of the MAI Act.
There is now no medical dispute that the claimant has suffered a non-threshold injury and there is no basis that this will change. The maintenance of these proceedings is frivolous and/or vexatious as they achieve no purpose in changing the outcome of the medical dispute which has been determined.
Allowing the proceedings to continue is contrary to the objects in s 3 of the PIC Act which requires the Commission to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”. The ongoing maintenance of these proceedings where there is no dispute wastes costly and scarce resources where the Panel can otherwise be utilised in determining medical disputes which are the subject of a proper dispute. This comment is more apposite given the recent spike in filings for medical assessment which is outlined in the President’s recent announcement.
The claimant referred to the insurer’s declinature for physiotherapy treatment and asserted, without any reasoning, that a determination of non-threshold for physical injuries would somehow impact on that treatment dispute.
There is no logical connection between the insurer’s declinature for physiotherapy and the claimant’s assertion that a physical injury was not a threshold injury.
First, the findings of the Panel or Medical Assessor are not determinative of causation in any other dispute between the parties: Owen v Motor Accidents Authority;[12] Allianz Australia Insurance Ltd v Girgis;[13] Brown v Lewis[14] and Pham v Shui.[15]
[12] [2012] NSWSC 650.
[13] [2011] NSWSC 1424
[14] [2006] NSWCA 587.
[15] [2006] NSWCA 373.
The above authorities concern the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act). Considering the provisions of the MAI Act, particularly sub-sections 7.23 (1) and (2)(b), any medical assessment certificate is only conclusive evidence of what is certified. In light of the consistent statutory provisions concerning the conclusiveness of medical assessments issued under the MAI Act and MAC Act, the authorities referenced above would apply to the MAI Act.
Secondly, statutory benefits for treatment and care are nor payable if it was “not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned” (s 3.24(2)). A treatment dispute is a separate medical assessment matter from the issue of whether the claimant suffered a threshold injury caused by the motor accident (see Sch 2 cl 2 of the MAI Act). Any finding by the Review panel on whether the claimant suffered a non-threshold physical injury does not affect any future treatment dispute.
The review proceedings are dismissed pursuant to s 54 of the PIC Act.

[2025] NSWPIC 541

10 October 2025