Ward v AAI Limited t/as GIO - [2025] NSWPICMP 256

DETERMINATION OF REVIEW PANEL
CITATION:	Ward v AAI Limited t/as GIO [2025] NSWPICMP 256
CLAIMANT:	Brian Thomas Ward
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Maurice Castagnet
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	David Gorman
DATE OF DECISION:	14 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor accident; threshold injury; whether a supraspinatus tear in the left shoulder found on MRI was caused by the motor accident; Held – Medical Assessment Certificate revoked; new certificate issued; injury to left shoulder is not a threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. Determination 1. The Review Panel revokes the certificate of Medical Assessor Sikander Khan, dated 7 December 2023. 2. The Review Panel issues a replacement certificate determining that: (a) the following injuries caused by the motor accident are threshold injuries for the purposes of the Act: · cervical spine injury - soft tissue injury, and · lumbar spine injury- soft tissue injury. (b) the following injury caused by the motor accident is not a threshold injury for the purposes of the Act. · left shoulder injury - near full thickness to full thickness, partial tear extending from the anterior leading edge to mid supraspinatus tendon with mild subacromial bursitis. A statement of the Review Panel’s reasons for the determination is attached to this certificate.

STATEMENT OF REASONS

INTRODUCTION

On 15 September 2018, the claimant, Brian Thomas Ward, was involved in a motor accident when a vehicle (insured by AAI Limited t/as GIO) travelling on the wrong side of the road, collided with the front and driver’s side of his vehicle.
As a result of the accident, the claimant claimed that he sustained injuries to his cervical spine, lumbar spine and shoulders. He also claimed that he developed a psychological injury although that injury is not the subject of the dispute in this matter.
AAI Limited t/as GIO (the insurer) accepted liability to pay the claimant statutory benefits arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks. Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
[2] Section 4.4 of the MAI Act.
Following an internal review of its original decision conducted on 10 May 2022, the insurer maintained that the claimant’s physical injuries caused by the accident, were threshold injuries for…

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 256
Decision Date: 14 April 2025

CaseChat Overview and Summary

Ward v AAI Limited t/as GIO was a case heard by the Motor Accident Injuries Commission in which the claimant sought a review of a Medical Assessment Certificate. The claimant, having suffered injuries in a motor accident, argued that the certificate did not adequately address the extent of her injuries. Specifically, she contended that a supraspinatus tear in her left shoulder, identified through MRI, was a result of the accident. The insurer, AAI Limited trading as GIO, disputed this claim, arguing that the injury was not a threshold injury under the Motor Accident Injuries Act 2017.

The legal issues before the court were primarily concerned with the interpretation of the Motor Accident Injuries Act 2017 and the criteria for determining whether a particular injury is a threshold injury. The court had to assess whether the supraspinatus tear was indeed caused by the motor accident and if it qualified as a threshold injury warranting compensation. The claimant had to demonstrate a causal link between the accident and the injury, while the insurer needed to prove that the injury did not meet the legislative criteria.

In its decision, the court found that the supraspinatus tear in the claimant's left shoulder was not caused by the motor accident. The evidence did not establish a direct causal link between the accident and the injury. Consequently, the court revoked the original Medical Assessment Certificate and issued a new one that did not recognise the injury to the left shoulder as a threshold injury. This determination was based on the absence of sufficient evidence to support the claimant's assertion of causation.

The court's ruling effectively denied the claimant compensation for the alleged shoulder injury, reaffirming the stringent criteria for establishing threshold injuries under the Motor Accident Injuries Act 2017. This decision underscores the necessity for claimants to provide robust evidence to substantiate their claims of causation in motor accident injury cases.

Orders