AAI Ltd t/as GIO v Mohammed [2026] NSWSC 991

Catchwords: ADMINISTRATIVE LAW — review of medical assessment by R eview P anel — judicial review of R eview P anel decision — where medical assessment certificate revoked and replaced by R eview P anel — whether Review Panel ’s decision affected by reviewable error due to making of findings beyond scope of medical dispute — whether Review Panel failed to afford procedural fairness Supreme Court New South Wales Medium Neutral Citation: AAI Ltd t/as GIO v Mohammed [2026] NSWSC 991 Hearing dates: 4 August 2026 Date of orders: 25 August 2026 Decision date: 25 August 2026 Jurisdiction: Common Law Before: Griffiths AJ Decision: The s ummons filed 10 February 2026 is dismissed, with costs. Catchwords: ADMINISTRATIVE LAW — review of medical assessment by R eview P anel — judicial review of R eview P anel decision — where medical assessment certificate revoked and replaced by R eview P anel — whether Review Panel ’s decision affected by reviewable error due to making of findings beyond scope of medical dispute — whether Review Panel failed to afford procedural fairness Legislation Cited: Accident Compensation A ct 1985 (Vic) Motor Accident Injuries Regulation 2017 (NSW), s 13 Motor Accidents Compensation Act 19 99 (NSW), s 63 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW) Motor Accident Injuries Act 2017 (NSW), ss 1.6, 3.11, 3.28, 4.4, 7.1, 7.17, 7.19, 7.20, 7.23, 7.24, 7.26, Schedule 2, cl 2(b), cl 2(e) Personal Injury Commission Act 2020 (NSW), s 33 , Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 328 Cases Cited: AAI Limited trading as GIO v Amos [2024] NSWCA 65 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 Insurance Australia Ltd trading as NRMA Insurance as agent for the Nominal Defendant v Toole [2025] NSWSC 777 Insurance Australia Ltd trading as NRMA Insurance v Cahill [2025] NSWSC 828 Jarvis v Allianz Australia Insurance Ltd (2022) 102 MVR 476; [2022] NSWCA 232 Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 Palmanova Pty Ltd v Commonwealth (2025) 99 ALJR 1362; [2025] HCA 35 Scone Race Club Ltd v Cottom [2024] NSWCA 34 Skates v Hills Industries Ltd [2021] NSWCA 142 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zadehfard v Allianz Australia Insurance Limited [2025] NSWSC 1423 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 November 2007 Category: Principal judgment Parties: AAI Ltd trading as GIO (plaintiff) Gasm Elseed Elsayed Babikir Mohammed (first defendant) Review Panel constituted under section 7.26 of the Motor Accident Injuries Act 2017 (second defendant) The President of the Personal Injury Commission of New South Wales (third defendant) Representation: Counsel: J Gumbert (plaintiff) E Welsh (first defendant) Solicitors: Brydens Lawyers (plaintiff) Moray & Agnew Lawyers (first defendant) File Number(s): 2026/00056732 Publication restriction: Nil JUDGMENT The plaintiff seeks judicial review of a Certificate dated 10 November 2025 which was issued by a r eview p anel following a referral to it dated 5 December 2024. In the Certificate, the Review Panel certified that the defendant ’ s left shoulder injury caused by a motor vehicle accident on 2 May 2022 was not a threshold injury for the purposes of the Motor Accident Injuries Act 2017 (NSW) ( MAI Act ). In brief, the plaintiff -insurer ( GIO ) claims that the Certificate is invalid because it dealt with an injury which was not within the ambit of the medical dispute between the defendant-claimant and it. GIO also complains of procedural unfairness. It is convenient to first summarise the key relevant statutory provisions before outlining the chronology of relevant events. Key statutory provisions summarised Division 7.5 of the MAI Act governs medical assessments. A “ medical dispute ” is defined in s 7.17 as meaning: (a) a dispute between a claimant and an insurer about a medical assessment matter, or (b) an issue arising about a medical assessment matter in relation to— (i) proceedings before a court for damages, or (ii) a merit review by a merit reviewer under this Act, or (iii) the assessment of a claim by the Commission. A “ medical assessment matter ” is defined in s 7.1 as “ a matter declared by Schedule 2 to be a medical assessment matter for the purposes of this Part ” . Schedule 2, cl 2( e ) of the MAI Act includes the following matter among the list of medical assessment matter s : ... (e) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act. “ Threshold injury ” is defined in s 1.6 of the MAI Act as follows: 1.6 Meaning of “threshold injury” (1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following— (a) a soft tissue injury, (b) a psychological or psychiatric injury that is not a recognised psychiatric illness. (2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. (3) (Repealed) (4) The regulations may— (a) exclude a specified injury from being a threshold injury for the purposes of this Act, or (b) include a specified injury as a threshold injury for the purposes of this Act. (5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act. (6) Subsection (5) does not enable the Motor Accident Guidelines to make provision for or with respect to the resolution of disputes by the Commission or medical assessor. Note. The rules of the Commission make provision for these matters. The significance of an assessment whether a particular injury is a threshold injury or not lies in the fact that, p ursuant to ss 3.11(1)(b) and 3.28(1)(b) of the MAI Act, the entitlement to statutory benefits ceases after 52 weeks if the person ’ s only injuries resulting from the motor accident are threshold injuries. Further, s 4.4 states that no damages may be awarded to an injured person if the only injuries resulting from the accident are threshold injuries. The President of the Personal Injury Commission ( PIC ) is empowered to appoint medical assessors to assess medical disputes: Personal Injury Commission Act 2020 (NSW) ( PIC Act ) s 33 (1)(b) . A medical dispute about a claim may be referred to the President for assessment under Div 7.5 of the MAI Act by inter alia either party to the dispute : MAI Act s 7.20(1)(a). The President is to arrange for the dispute to be dealt with by one or more medical assessors : MAI Act s 7.20(2). The assessor or assessors “ is or are to give a certificate as to the matters referred for assessment ” : MAI Act s 7.23(1). The certificate is, in specified proceedings : (a) p rima facie evidence of any matter certified as to the degree of permanent impairment of earning capacity ; a nd (b) c onclusive evidence of any other matter certified: MAI Act s 7.23( 2 ). However, a court may reject a certificate as to all or any of the matters certified therein on the ground of procedural fairness but only if the court is satisfied that evidence of the certificate would cause substantial injustice to the party complaining of procedural unfairness : MAI Act s 7.23(3) . A claimant is generally prevented from referring a medical dispute for assessment under Div 7.5 in relation to an insurer ’ s decision on a claim until the decision has been subject to an internal review by the insurer under Div 7.3: MAI Act s 7.19(1). Section 7.24(2) of the MAI Act provides that a medical dispute which was previously referred for assessment may be referred again for assessment by the claimant or the insurer, “ but only on the grounds prescribed by the regulations (if any) in relation to the medical assessment matter to which the dispute relates ” . Section 13 of the Motor Accident Injuries Regulation 2017 (NSW) relevantly states: 13 Grounds for further medical assessment (section 7.24 (2)) (1) A medical dispute may be referred again for assessment under Division 7.5 of the Act on the grounds of deterioration of the injury or additional relevant information about the injury. (2) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. Section 7.26 of the MAI Act deals with the review of medical assessments. It provide s (emphasis added in s 7.26(6) because of its significance in this proceeding ): 7.26 Review of medical assessment by review panel (cf s 63 MACA) (1) A claimant or an insurer may apply to the President to refer a medical assessment under this Division by a single medical assessor to a review panel for review. (2) An application for the referral of a medical assessment to a review panel may be made only on the grounds that the assessment was incorrect in a material respect. (3) A medical assessment may not be referred for review under this section on more than one occasion. (4) If a medical assessment under this Division is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment) (a combined certificate assessment ), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (5) The President is to arrange for the medical assessment to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (5A) The panel is to be constituted by 3 persons chosen by the President as follows— (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission. (6) The review of a medical assessment 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. (6A) To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members. (7) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (8) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review. (9) Section 7.23 (Status of medical assessments) applies to any new certificate or new combined certificate issued under this section. (10) An application under this section must be made within— (a) 28 days after the parties to the medical dispute were issued with the original certificate for the medical assessment for which the review is sought, or (b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules. A matter may be referred to a r eview p anel by a party to the application “ only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application ” : MAI Act s 7.26(5). Section 7.23(7) requires a certificate to “ set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence ” . Chronology of relevant events On 2 May 2022, Mr Mohammed was injured in a motor vehicle accident. A claim form was lodged with GIO on or about 2 August 2022 and Mr Mohammed received statutory benefits for treatment, care and weekly benefit payments for the 26 week period ending 31 October 2022. On 6 October 2022, GIO informed Mr Mohammed that it denied liability for benefits after 31 October 2022 because it had concluded that his injuries were merely “ minor injuries ” (as then defined in the MAI Act) . In its letter dated 6 October 2022, GIO described each of the following injuries as “ minor injuries ” : “ S oft tissue injuries to neck, upper back & left shoulder ” . Mr Mohammed sought an internal review of GIO ’ s decision dated 6 October 2022. On 4 May 2023, GIO affirmed its initial decision, stating that Mr Mohammed ’ s injuries “ fall within the definition of ‘ threshold injury ’ for the purposes of the Act ” . On 4 May 2023, Mr Mohammed lodged with the PIC an application for medical assessment seeking a determination of his dispute with GIO . His application listed five injuries to be referred for assessment (noting in particular the description of Injury 4 concerning his left shoulder ): Injury 1 Bodily region of injury Lumbar spine Injury description Aggravation caused by previously asymptomatic degenerative changes. Injury 2 Bodily region of injury Cervical spine Injury description Aggravation caused by previously asymptomatic degenerative changes. Injury 3 Bodily region of injury Knee Injury description Right knee - Aggravation caused by degenerative changes predominantly involving the patellofemoral joint & posttraumatic chondromalacia patellae. Injury 4 Bodily region of injury Shoulder Injury description Left shoulder - Supraspinatus tendinosis involving his left shoulder together with subacromial bursitis. Injury 5 Bodily region of injury Psychiatric condition Injury description Adjustment Disorder with Mixed Anxiety And Depressed Mood. In the PIC online portal application form, several supporting documents were listed , including x-rays and scans of some of Mr Mohammed ’ s injuries . This list did not include any reference to the scan of his left shoulder dated 13 May 2022 . The significance of this material (and some related reports) will be explained in due course. On 25 May 2023, GIO lodged a reply and submissions in response to Mr Mohammed ’ s application to PIC . GIO disputed whether Mr Mohammed had suffered any non-threshold injuries as a result of the accident. With particular reference to the claimed left shoulder injury, GIO submitted that Mr Mohammed had not placed any evidence before the PIC in relation to this injury which could reasonably be suggested to constitute evidence of an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage, as set out in the definition of “ threshold injury ” . GIO emphasised that , although a copy of a report of an ultrasound of Mr Mohammed ’ s left shoulder in May 2022 was not attached to his application , it confirmed the absence of such pathology . GIO made reference to a referral made by Mr Mohammed ’ s GP to Mr John Zhuang on 16 May 2022 who said that he noted that the scan revealed “ [m]ild changes of supraspinatus without evidence of tear ” (emphasis in GIO ’ s submission s ). In its submissions, GIO also referred to a report by Dr Bentivoglio which noted the following at page 9: An ultrasound done of his left shoulder in May 2022 showed evidence of supraspinatus tendinosis without evidence of a tear. There is evidence of mild subacromial bursitis. His acromioclavicular joint was noted to be intact. It may be inferred from GIO ’ s submission s that it viewed the issue of whether or not there was a tear to Mr Mohammed ’ s left shoulder as falling within the ambit of the medical dispute. That issue was relevant to whether or not the left shoulder injury was a threshold injury. The PIC referred the four physical injuries suffered by Mr Mohammed in the accident for medical assessment by Medical Assessor Woo to determine whether any injury was a threshold injury for the purposes of the MAI Act. The injury to the left shoulder was described in the referral as: Left shoulder – supraspinatus tendinosis involving his left shoulder together with subacromial bursitis Medical Assessor Woo examined Mr Mohammed on 18 January 2024 . He provided his decision and Certificate on 22 January 2024. Dr Woo found that Mr Mohammed ’ s cervical spine, right knee, lumbar spine and left shoulder soft tissue injuries were threshold injuries . He issued a certificate under s 7.23(1) of the MAI Act to that effect. The only radiological or medical imaging referred to by Dr Woo concerning Mr Mohammed ’ s left shoulder was a report by Dr Pradnya Dugal on 13 May 2022 which noted “ M ild changes of supraspinatus tendinosis without evidence of tear . Mild subacromial / subdeltoid bursitis ” (emphasis added) . By an application dated 20 February 2024, Mr Mohammed requested a further medical assessment under s 7.24 of the MAI Act, alleging that there was additional relevant information about his claimed injuries to his right knee and that Dr Woo had failed properly to assess the injury to Mr Mohammed ’ s lumbar spin e . The application was accompanied by written submissions dated 19 February 2024, which stated that Mr Mohammed sought both a review and/or further assessment of his injuries with respect to his right knee and lumbar spine but did not refer to his left shoulder injuries . On 13 March 2024, GIO lodged a reply to Mr Mohammed ’ s application for review and/or further medical assessmen t . In the accompanying submissions also dated 13 March 2024, GIO submitted that Mr Mohammed ’ s application for review and/or further medical assess ment of the injuries to his lumbar spine and right knee should be dismissed. On 4 April 2024, a de legate of the President of the PIC determined that Mr Mohammed ’ s application would be referred for further medical assessment as she was satisfied that there was additional relevant information or deterioration of Mr Mohammed ’ s injuries to his right knee such as to be capable of having a material effect on the outcome of Dr Woo ’ s previous assessment . The delegate confirmed that the further medical assessment would “ involve consideration of all aspects of the previous assessment afresh and may include all injuries assessed by the original Medical Assessor and any additional injuries listed on the application or reply ” . The following injuries were referred for further assessment (noting that they include d the left shoulder injury) : a. Cervical spine — aggravation caused by previous asymptomatic degenerative changes b. Right knee — aggravation caused by degenerative changes predominantly involving the patellofemoral joint and posttraumatic chondromalacia patellae c. Lumbar spine — aggravation caused by previously asymptomatic degenerative changes d. Left shoulder — supraspinatus tendinosis involving his left shoulder together with s ubacromia l bursitis. The matter was referred back to Dr Woo, who examined Mr Mohammed again on 27 September 2024 and provided his decision and Certificate on 7 October 2024. The further assessment was carried out on the basis that it involved all four bodily injuries , including the left shoulder. Dr Woo found that Mr Mohammed ’ s cervical spine, right knee and left shoulder soft tissue injuries were threshold injuries (as he had previously found in his 22 January 2024 decision) , but that Mr Mohammed ’ s lumbar spine injury was not a threshold injury. In his summary of relevant radiological and medical imaging concerning Mr Mohammed ’ s various injuries, the only imaging noted with respect to the left shoulder injury was , again , the report by Dr Pradnya Dugal of the ultrasound of Mr Mohammed ’ s left shoulder on 13 May 2022 which, as noted above, stated that there were “ M ild changes of supraspinatus tendinosis , without evidence of tear ” . On 6 November 2024, GIO applied under s 7.26 of the MAI Act for a review of Dr Woo ’ s 7 October 2024 Certificate . In the accompanying written submissions dated 5 November 2024, GIO submitted that Dr Woo had not adequately addressed causation in respect of the lumbar spine injury and that the matter should be referred to a r eview p anel. No reply submissions were lodged by Mr Mohammed in response to GIO ’ s referral application . On 5 December 2024, a d elegate of the President of the PIC determined that she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and that it would be referred to a r eview p anel . The delegate explained why there was reasonable cause to suspect that GIO had been denied procedural fairness because it had not been provided with an opportunity to respond to the new medical evidence that Mr Mohammed had brought with him to the latest medical assessment , including an MRI scan of the lumbar spine dated 6 September 2024 . GIO ’ s review application was accepted and the delegate stated that the “ application ... will be referred to a Review Panel ” . The Review Panel was constituted by Principal Member John Harris and Medical Assessors Christopher Oates and Ma r garet Gibson. The Review Panel issued various directions during the period 10 December 2024 to 24 October 2025. Relevantly, this included several directions to the parties to provide Mr Mohammed ’ s general practitioner clinical records. The direction was not limited to records regarding the lumbar spine. U ltimately, the claimant provided two bundles of medical reports from two separate GP practices. The first bundle, from Lakemba Medical Centre, was given to GIO on 30 May 2025. The second bundle, from NAS Advanced Medical Centre, was given to GIO on 23 July 202 5. The bundle from Lakemba Medical Centre included a copy of the report dated 22 December 2024 by Dr Manish Chug from Auburn Radiology , who reviewed an ultrasound on Mr Mohammed ’ s left shoulder carried out on 20 December 2024. Dr Chu g reported that (emphasis added) : There is a partial thickness anterior portion tear of the supraspinatus measuring 8 x 7 x 2mm. The subscapularis and supraspinatus are heterogeneous suggestive of tendinosis. ... There is a partial thickness tear of the supraspinatus. ... It is convenient to interpolate here that , d uring the course of the hearing before me, GIO tendered a copy of another medical report obtained from Lakemba Medical Centre. This report is dated 2 January 2025 and was created by Dr Elsadig Mohammed . It is in substantially similar terms to Dr Chug ’ s report dated 22 December 2024 and contains similar statements to those set out immediately above. In addition, under the heading “ Reason for visit ” , Dr Mohammed ’ s report refers to “ Partial thickness tear of the supraspinatus ” . This report was admitted (without objection) as Exhibit A in the proceedings. It appears that a copy of the report was provided to the Review Panel in late July 2025. By a direction dated 9 May 2025 issued by the Principal Member, the Review Panel stated that, having reviewed the material provided to date (which at that time did not include the reports dated 22 December 2024 and 2 January 2025 by Dr Chug and Dr Mohammed respectively), the Review Panel ’ s “ preliminary view ” was that “ the argument is essentially restricted to whether there was an injury properly classified as not a threshold injury to the L4 / 5 disc ” . The Review Panel required the claimant to file and serve, prior to 1 June 2025, a list of any injuries he asserted were non-threshold and any arguable basis for this assertion . Mr Mohammed ’ s solicitor provided written submissions dated 3 June 2025, presumably in response to the direction dated 9 May 2025. In brief, it was submitted that the right knee and lumbar spine injuries met the definition of non-threshold injury. The submissions are direct ed entirely to those injuries. The solicitor did not contend in this document that Mr Mohammed ’ s left shoulder injury was a non-threshold injury. In a further direction dated 1 July 2025, the Review Panel noted the further submissions dated 3 June 2025 and that they alleged a non-threshold injury to the right knee and lumbar spine. The Review Panel said that it believed that the threshold dispute turned on the radiological evidence, relevant history and nature of the motor accident and the parties were asked to advise whether they accepted the physical examination findings of the original medical assessment certificate. The Review Panel also stated that , although it did not propose to determine the dispute on the papers, its view at that time was that an examination of Mr Mohammed was not required . Evidently, both parties responded to the direction dated 1 July 2025 but copies of those responses were not included in the evidence. In a further direction dated 11 July 2025, the Review Panel noted the parties ’ submissions (presumably in response to the 1 July 2025 direction) and said that there must be a new examination. It was also stated that the Review Panel was awaiting the GP records as requested in the directions dated 11 March 2025 and 1 July 2025. In a direction dated 23 July 2025, the Review Panel acknowledged that the claimant had produced records from the Lakemba Medical Centre but indicated it still required the production of all GP records from 2018 to 2025 . One of the Medical Assessors constituting the Review Panel (Dr Oates) conducted a re-examination of Mr Mohammed on 1 September 2025 . According to the Review Panel ’ s reasons dated 10 November 2025 , t he re-examination was conducted on the basis that the left shoulder injury was among the threshold injury disputes to be assessed . In his re-examination report (which is set out in the Review Panel ’ s reasons) , Dr Oates recorded that Mr Mohammed ’ s general practitioner had referred him for an ultrasound of the left shoulder because of ongoing left shoulder pain and that “ this was done on 2/1/2025 showing a partial - thickness tear of the supraspinatus tendon ” . I understand that i t is common ground that this is a reference to Dr Mohammed ’ s report dated 2 January 2025 ( which substantially reproduced Dr Chug ’ s report dated 22 December 2024 ) . Dr Oates (whose report was adopted by the Review Panel as a whole) also noted that , although Mr Mohammed ’ s left shoulder had improved, “ he still can ’ t move it fully overhead ” . Dr Oates concluded that Mr Mohammed had suffered soft tissue injuries to his cervical spine, lumbar spine and left shoulder and that all these injuries were caused by the motor vehicle accident . Returning now to the other events leading up to the Review Panel ’ s decision , b y a direction to the parties dated 24 October 2025, the Review Panel noted that a report of the left shoulder ultrasound contained in the clinical records of Lakemba Medical Centre referred to a partial thickness tear of the supraspinatus . In the present proceedings, t he parties appear to agree that this is a reference to Dr Mohammed ’ s report dated 2 January 2025 (w hich substantially reproduced Dr Chug ’ s report dated 22 December 2024 ) . B oth reports included a finding that there was a tear of the supraspinatus tendo n ( which contradicted the 13 May 2022 scan ). The Review Panel directed GIO to make any submissions by 3 1 October 2025 as to whether the partial thickness tear was caused by the accident . No similar direction was given to Mr Mohammed and no further submissions were provided by him to the Review Panel . In response to the direction, GIO provided two pages of written submissions dated 31 October 202 5 . GIO summarised the history of the relevant evidence relating to the left shoulder injury, including the various assessments by Dr Woo. GIO referred to the fact that on 2 January 2025, a medical certificate was issued by Dr Elsadig Mohammed “ which provided a diagnosis of left shoulder bursitis and a cervical disk problem ” , cross-refer ring to page 150 of the Lakemba Medical Centre records . (It may be interpolated here that the evidence before the Court did not include all the contents of the medical records obtained from NAS Advanced Medical Centre and Lakemba Medical Centre. It is unclear whether , on 2 January 2025, Dr Mohammed provided both a medical certificate and the report described at [ 29 ] above ). GIO further submitted that certificates of capacity completed by Dr Elsadig Mohammed during the period 28 February 2025 to 24 May 2025 pr ovided a diagnosis of the accident-related injury to include “ supraspinatus tendinosis, subacromial and subdeltoid bursitis of the left shoulder ” and that none of the certificates suggested that the partial thickness tear in the left supraspinatus was causally related to the motor vehicle accident (cross-referring to pages 29-44 and 67-70 of the Lakemba Medical Centre Records) . GIO contended that there was no causal link between the partial thickness tear in the left supraspinatus tendon and the motor vehicle accident . It emphasised that the left shoulder ultrasound dated 13 May 2022 ( which was only 11 days after the accident ) “ explicitly revealed that there was no evidence of a tear in the supraspinatus tendon ” and that this imaging would have revealed if the accident had caused a non-threshold injury to Mr Mohammed ’ s left shoulder . It emphasised that Dr Chug ’ s report dated 22 December 2024 which identified a partial thickness tear was done over two and a half years after the accident . I t is notable that, i n its submission s dated 31 October 2025 , GIO did not contend that the issue whether there was a tear to the left shoulder was outside the ambit of the medical dispute. GIO ’ s submissions implicitly assume d that this injury was within the scope of the medical dispute . Hence the issue was addressed by it at some length. The Review Panel’s Certificate and reasons The Review Panel published its Certificate and accompanying reasons on 10 November 2025 . Dr Woo ’ s C ertificate dated 7 October 2024 was revoked and the Review Panel certified that Mr Mohammed ’ s left shoulder injury was not a threshold injury for the purposes of the MAI A ct . In its reasons, the Review Panel noted at [103]- [104] that the 2025 left shoulder scan was included in the clinical records of Mr Mohammed ’ s general practitioner and that the scan showed a partial thickness anterior portion tear of the supraspinatus . It noted that , prior to the Review Panel issuing a direction on the matter, there were no relevant submissions on the significance of this ultrasound even though the injury to the left shoulder was referred for assessment . The Review Panel then expressly noted the following matters raised in GIO ’ s submissions dated 31 October 202 5 : - the GP record dated 4 May 2022 noted abduction to 90 degrees and a positive impingement test; - the ultrasound dated 4 May 2022 [sic] was reported as showing no evidence of a tear; - Dr Bentivoglio diagnosed left shoulder subacromial bursitis and supraspinatus tendinosis; - Medical Assessor Woo on 22 January 2024 reported that left shoulder pain had resolved after six months although noted mild anterior tenderness; - Medical Assessor Woo on 27 September 2024 noted the claimant’s report of left shoulder pain on driving; - Dr Mohammed in a January 2025 medical certificate diagnosed a soft tissue injury. Subsequent certificates confirmed this diagnosis (supraspinatus tendinosis and bursitis), and - the claimant had physiotherapy for the back only in January 2025. The Review Panel noted at [106] GIO ’ s reliance on “ the fi ndings of the initial ultrasound and the diagnosis of Medical Assessor Woo and Dr Bentivoglio ” . It also referred to GIO ’ s reliance on the delay in obtaining the second ultrasound and that it disputed “ the causative relationship between the accident and the tear identified in the 2025 ultrasound ” . It also noted at [107] that GIO “ reserves the right to rely on further evidence ” . At [108] of its reasons, the Review Panel noted that “ the parties are obviously aware that we are deciding the issue of threshold injury ” and that “ [t]he insurer in its recent submissions did not request leave to rely on further evidence ” , but simply reserved that right. The Review Panel then explained at [109]-[120] why it accepted that the motor accident caused the partial thickness tear of the supraspinatus tendon as revealed in “ the recent ultrasound ” (footnotes omitted): 109. The Panel accepts that the motor accident caused the partial thickness tear of the supraspinatus tendon shown in the recent ultrasound for the following reasons. 110. The reading of ultrasound scans is notoriously dependent on the skills of the interpreter. A negative finding is not conclusive of absence of pathology. This is particularly apposite in these circumstances where the claimant had contemporaneous onset of left shoulder symptoms of rotator cuff pathology and ongoing problems which were not resolved with physiotherapy. 111. There is no history of any explanation of a prior or subsequent incident which explains the tear. 112. The second ultrasound scan is reported as being undertaken based on a continuity of symptoms in the left shoulder since the accident which was unresponsive to treatment. 113. The findings in the 2025 ultrasound are consistent with the examination findings of Medical Assessor Oates that, whilst range of movement has improved, the claimant cannot fully move overhead (abduct). 114. There was an absence of prior left shoulder problems and an immediate recorded complaint of left shoulder pain following the motor accident. The initial attendance before the GP noted “limited abduction of left shoulder’ and positive impingement which is highly suggestive of trauma to the rotator cuff (supraspinatus tendon). 115. The motor accident involved a significant rear-end collision shunting the claimant’s vehicle forward. This would have caused considerable forces through the left shoulder when the claimant was holding the steering wheel. These forces are sufficient to cause the tear shown on the recent ultrasound. 116. The recent ultrasound was, because of the date, not viewed by either Dr Bentivoglio or Medical Assessor Woo. 117. Dr Bentivoglio’s examination findings noted limited left shoulder movement. We interpret his diagnosis in October 2022 as based on the original scan. 118. We note that in January 2024 Medical Assessor Woo recorded cessation of left shoulder pain after six months, but his findings record considerable loss of left shoulder abduction and mild anterior tenderness. That examination finding is consistent with the pathology shown on the 2025 ultrasound [sic] . In the latter report Medical Assessor Woo noted left shoulder pain on driving and under pressure. 119. Our view is that the examination findings of Dr Bentivoglio and Medical Assessor Woo are consistent with what was demonstrated on the ultrasound. 120. We consider the bare diagnosis in the various certificates without an explanation by the GP of no assistance in the resolution of this issue. The absence of physiotherapy in January 2025 is another submission of no moment particularly in circumstances where the claimant is, at that time, reporting left shoulder pain to his GP and undergoing a further shoulder ultrasound. The Panel concluded at [121] that this injury was not a threshold injury because it involved a partial rupture of a tendon . It is necessary to say something further regarding the ultrasounds of Mr Mohammed ’ s left shoulder carried out on 13 May 2022 and 20 December 2024. In an affidavit dated 2 June 202 6 , GIO ’ s solicitor, Mr Nathan Morehead , deposed th at he did not have copies of the imaging films for either of those ultrasounds at any time prior to the Review Panel ’ s determination on 10 November 2025. He further deposed that he was not on notice that the Review Panel intended to find that the initial ultrasound of Mr Mohammed ’ s left shoulder on 13 May 2022 showed a tear in circumstances where the report by Dr Dugal contained four express references to there being “ no tear ” . He also deposed that if he had been put on notice of the Review Panel ’ s intention to find that there was a tear, he would have taken the following steps: Request that the Review Panel not assess an injury that was not within the scope of the referred d ispute. Alternatively, request t he Review Panel to defer its decision until further necessary evidence could be obtained, including the actual ultrasound images as opposed to any reports thereon and further medical opinion as to what was shown on those images. Mak e further submissions as to whether the initial ultrasound of the left shoulder on 13 May 2022 showed a tear and whether it was caused by the accident . This evidence was intended to support GIO ’ s claim of procedural fairness. I will explain in greater detail below why I consider that the evidence is based on a n unsound premise. The Review Panel never made a clear finding that the initial ultrasound dated 13 May 2022 showed a tear in the left shoulder. GIO’s judicial review challenge The summons filed 10 February 2026 raises two grounds of judicial review. In brief, ground 1 claims that the scope of the medical dispute referred to the Review Panel did not include a tear of the left supraspinatus tendon, but rather only “ supraspinatus tendinosis involving [Mr Mohammed ’ s] left shoulder together with subacromial bursitis a fracture of the L2 transverse processes ” . Accordingly, GIO claims that the Review Panel ’ s finding that the left shoulder injury was a non-threshold injury was not within the scope of the medical dispute referred by the delegate . Ground 2 claims that GIO was not afforded procedural fairness in circumstances where the direction dated 24 October 202 5 merely called for submissions from GIO as to whether the partial thickness tear of the supraspinatus tendon (as revealed by the 2 January 2025 ultrasound report) was caused by the accident. GIO complains that it was not given notice of the possible finding by the Review Panel that the earlier ultrasound report of 13 May 2022 ( which explicitly stated that there was no evidence of a tear ) was incorrect . GIO correctly points out that the defendant conflates grounds 1 and 2. They raise separate but related issues. Ground 1 challenges the Review Panel ’ s determination of the scope of the medical dispute while ground 2 is a procedural fairness complaint. Rather than add to the length of these reasons by separately summarising the parties ’ primary submissions, I will address those submissions in the next section of these reasons for judgment. Consideration and determination (a) Ground 1: ambit of medical dispute As noted above, in ground 1, GIO complains that there is either an error of law on the face of the record or a jurisdictional error because the scope of the medical dispute referred to the Review Panel did not include the tear of the left shoulder supraspinatus tendon, but was limited to the question whether there was “ supraspinatus tendinosis involving [Mr Mohammed ’ s] left shoulder together with subacromial bursitis a fracture of the L2 transverse processes ” . GIO complains that the Review Panel erred in converting the referred injury, namely “ supraspinatus tendinosis involving [Mr Mohammed ’ s] left shoulder together with subacromial bursitis ” to an entirely different injury, namely, partial thickness tear to the supraspinatus tendon. In support of ground 1, Ms Gumbert ( who appeared for GIO) , referred to various authorities, including the decisions of the Court of Appeal in both McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 and Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 ; Adamson JA ’ s decisions in Insurance Australia Ltd trading as NRMA Insurance as agent for the Nominal Defendant v Toole [2025] NSWSC 777 and Insurance Australia Ltd trading as NRMA Insurance v Cahill [2025] NSWSC 828 ; and Chen J ’ s decision in Zadehfard v Allianz Australia Insurance Limited [2025] NSWSC 1423 . Ground 1 r aises issues of statutory construction. The resolution of those issues requires consideration of text, context and purpose pertaining to relevant provisions of the MAI Act (see generally Palmanova Pty Ltd v Commonwealth (2025) 99 ALJR 1362; [2025] HCA 35 at [4]-[6] per Gageler CJ, Gordon, Jagot and Beech-Jones JJ ). I have concluded, however, for the following reasons, that ground 1 should fail. F or convenience, I will address each of the authorities cited by Ms Gumbert chronologically and explain why they do not support GIO ’ s contentions concerning ground 1. (i) McKee McKee involved a medical assessment conducted under the Motor Accidents Compensation Act 19 9 9 (NSW) ( MAC Act ). A medical assessor certified that the appellant ’ s degree of permanent impairment was not greater than 10%, thereby dis entitling him to damages for non-economic loss under s 131 of the MAC A ct. This figure was arrived at by reference to various injuries, including an assessment of 0% for injury to the appellant ’ s spleen. The medical assessment was referred to a r e view p anel under s 63(3) of the M AC A ct. The Re view P anel concluded that the assessment of the spleen injury was incorrect and attributed 3% permanent impairment to it, as well as reassessing other injuries the subject of the initial medical assessment. But t he appellant was still dis entitled to damages for non-economic loss because the R eview P anel assessed the degree of permanent impairment at precisely 10% (i.e. not greater than 10%). On appeal, the C ourt held by majority (Al l sop P and Giles JA , with Basten JA dissenting ) that the R eview P anel did not err in considering all aspects of the medical assessment , rather than just the spleen injury as identified in the application for review. Allsop P said that he agreed with the reasons of Giles JA regarding the ambit of a review of a medical assessment under the MAC Act. Before summarising the reasons for judgment of Giles JA, it is well to note the following additional observations of Al ls op P at [6] regarding the ambit of the function s of the Re view P anel under the MAC Act and how the ambit of the medical dispute under the MAC Act could evolve (emphasis added) : Whilst there may be sensible policy reasons for limiting the review in that way, I do not extract from the text and structure of Part 3.4, or from s63, any such limitation of power. The limitation of power is not, in terms, provided for in Part 3.4. Thus, one needs to ascertain it necessarily within the text and structure of Part 3.4. Subsections 63(1), (2) and (3) make clear that the application can only be made on the ground that the assessment was incorrect by reference to particulars set out in the application. The word “application” in s63(3) refers to the document or documents that is or are the application. Subsections 63(1) and (2) refer to the process of request that is the application. The notion that there is a limit of power in the review panel requires some clarity in identifying the source of the expression of the limits of the subject of review. There may be one or more documents reflecting the request (that is, the application); there may be oral elaboration of it; there may be amendment of it. There is no necessary clarity in the statute to help identify what is the source of the expression of the limits of the dispute, and so, on this hypothesis, of the limits of the power of the review panel. Guidelines issued under the MAC Act, s44(1)(d) might deal with procedures for the referral of review of assessments or the procedure for assessment, but any such guidelines would not help in understanding the content of the MAC Act, by reference to which the limits of the power of the review panel are to be identified. The President further noted at [8] in McKee that if matters referred for assessment went beyond “ the evident dispute thrown up ” by the parties, “ procedural fairness would require any and all necessary steps to ensure a fair hearing ” . It is significant that this passage expressly contemplates that the Review Panel ’ s consideration of the matters referred for assessment may go beyond the evident dispute between the parties but that, in those circumstances, there must be compliance with procedural fairness requirement s . The notion that the ambit of the review is to be determined not only by the application for review itself but also by any oral elaboration or amendment of it was supported by Giles J A in McKee . His Honour gave separate reasons for holding that the R eview P anel was not limited to the grounds of incorrectness in a material respect particularised in the application for referral of the medical assessment (see at [27]-[33]). The following passages from [24]-[27] of his Honour ’ s reasons are particularly apposite in highlighting t he need to give a broad construction to s 63 of the MAC Act: A key concept in Pt 3.4 is that of a matter. A medical assessment is an assessment of a medical disagreement about any of the “matters” described in s 58. All the matters are medical in nature; there is possible enlargement so far as the degree of impairment of earning capacity requires knowledge of workplace requirements, but medical professionals frequently express opinions on impairment of earning capacity. The certificate given by a medical assessor is “as to the matters referred for assessment” (s 61(1)). The concept is continued in s 61, and in s 62, with reference both to a “matter certified” and to a “matter referred” and variants on that language. The certificate must set out reasons for the medical assessor’s findings “as to any matter certified in the certificate in respect of which the certificate is conclusive evidence” (s 61(8)). Under s 63 the party applying in accordance with s 63(1) applies for referral of the medical assessment, not for referral of part of the medical assessment. Section 63(2) also speaks of referral of a medical assessment, and of grounds that the medical assessment was incorrect in a material respect, not that part of the medical assessment was incorrect. Section 63(4) returns to the key concept, providing that the result of the review panel’s review is either confirmation of the certificate of assessment or revocation of the medical assessor’s certificate and issue of a new certificate “as to the matters concerned”. “The matters concerned” picks up the matters in s 58. It must mean the matters referred for assessment as a whole. The medical assessor’s certificate is revoked, s 63(5) provides that s 61 applies to the new certificate, and so the new certificate must entirely replace the medical assessor’s certificate. The new certificate must therefore express the review panel’s own assessment of the matter or matters referred for assessment. To this point, the review panel has power to carry out whatever assessment is necessary in order to come to its own conclusions upon the matter or matters referred for assessment. Are its powers confined by s 63(2) and (3)? Those provisions implicitly require a statement of grounds of incorrectness in a material respect, which the proper officer can consider in order to be satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect “having regard to the particulars set out in the application” (s 63(3)). Diverging from the language of s 63(1), which speaks of reference of a medical assessment, the proper officer arranges for “any such application” to be referred to a review panel, that is, the application itself. Does reference of the application carry with it only the grounds of incorrectness in a material respect, and confine the review panel’s assessment to that incorrectness? In my opinion, that is not the proper construction of s 63. The referred application is still an application to refer the medical assessment. There is inelegance in referring to the review panel an application to refer a medical assessment to the review panel, but the review panel plainly does more than decide whether it will accede to the application to refer the medical assessment to it. What the review panel receives is a reference to it of the medical assessment. Section 63(2) and (3) do not cut this down. Section 63(3) provides a filter mechanism. Section 63(2) in terms limits the grounds for making an application, although no doubt its effect is that a review panel can not issue a new certificate if it considers that any incorrectness in the medical assessment was not in a material respect, but it does not otherwise affect the performance by the review panel of its task of either confirming the medical assessor’s certificate or issuing a new certificate expressing its own assessment of the matter or matters referred for assessment. Giles JA then gave additional reasons in support of a broad construction of s 63, which may be summarised as follows: T he legislature provided for review by a review panel so that a dissatisfied party to a medical dispute could seek a review , which was appropriate given the significance of a medical assessment under the relevant statutory regime (at [ 29] ). His Honour added that although a dissatisfied party may have particularise d the grounds for incorrectness in a material respect in the original medical assessment, “ it would be harsh i f the review panel did not have power to entertain altered, added or substituted grounds ” (also at [29 ] ). His Honour added at [29]: The Guidelines, to which medical assessments are procedurally subject (s 65), provide that application under s 63(1) must be made within thirty days of receipt of the medical assessor’s certificate (para 10.1), without ability to extend time (para 10.3)). Ignorance or mistake should not be penalised, and there can be second thoughts; the significance of a medical assessment is such that restrictions on getting it right should not readily be found to have been intended by the legislature. Giles JA said that the nature of the review panel was perhaps of greater significance (in circumstances where, under the MAC Act at the time , a review panel was to be constituted by three or more medical assessors). This meant that the expertise of medical professionals had to be applied to the review of a medical assessment initially made by another medical professional. Moreover, the review panel was obliged to confirm the initial certificate of assessment or issue a new r eplacement certificate which “ must deal with the matter or matters referred for assessment as a whole and express the appeal panel ’ s assessment of those matters ” (at [30]). H is H onour noted that it would not be a sensible operation of Pt 3.4 of the M AC A ct and would be at odds with the use of the expertise of medical professionals in resolving medical disputes if the review panel was not able to go beyond the particularised incorrectness in a material respect. His H onour was also influenced by the fact that there was “ a broadly similar scheme for medical assessments in Pt 7 of W orkplace In jury Management and W orkers Co mpensation A ct 1998 (NSW) ( WIMWC Act ) . His H onour noted at [31] what McColl JA (Mason P agreeing) had said in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [9 8]-[9 9] regarding the breadth of such a review : Further, while the express limitations on opening the gate to an appeal are suggestive of an appeal limited to the grounds identified by the appellant, there is much to be said for the view that when used in the context of the review of an MAC by a panel including two specialists, that they should be entitled to determine “the true and correct view”: Chemler (at [30]). The purpose of setting up a panel with experts is to enable it to resolve questions within its expertise: Kalil v Bray [1977] 1 NSWLR 256 (at 262) per Street CJ (Moffitt P and Glass JA agreeing). Such an approach recognises the importance of the medical assessment in the process of determining an injured worker’s rights to, and an employer’s obligation to pay, workers’ compensation and/or damages. Although the legislature has deliberately separated determination of those issues from the curial decision-maker, it would be a [sic] curious to find it intended that the Appeal Panel could not cure an error in a conclusive certificate merely because the parties had not identified it, with the result that a court could be required to determine the parties’ rights on the basis of what, in the Appeal Panel’s view, was an erroneous MAC. The inclusion of two specialists on the Appeal Panel must have been intended, in part, to permit them to bring their expertise to bear on the contents of the MAC. The central question in McKee was different from that raised here by ground 1. The question there was whether the ambit of a review under the MAC Act went beyond the scope of the particular ground on which the initial medical assessment was incorrect. Moreover, a s noted above, McKee dealt with a review of a medical assessment not under the MAI Act but under the MAC Act. While acknowledging these differences, I consider that the broad construction of the ambit of a review under the MAC Act as described by the majority in McKee also applies to the broadly analogous review regime under the MAI Act. The provisions in Pt 3.4 of the MAC Act, to which Allsop P and Giles JA referred to as supporting a broad construction, are substantially reflected in the relevant provisions of Div 7.5 of the MAI Act which I have outlined above. I do not regard as significant any difference in the two review regimes, such as the fact that review panels under the MAI Act have two medical assessors whereas at the time McKee was decided, review panels were constituted by three or more medical assessors. There is another important matter that warrants particular emphasis. At the time of both the first instance judgment and the appeal in McKee , the MAC Act did not include s 63(3A) . This provision was enacted by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW) ( Amendment Act ) and did not come into effect until 1 October 2008. Section 63(3A) is in substantially similar terms to s 7.26(6) of the MAI Act (see at [ 11 ] above). In the Legislative Assembly, the Parliamentary Secretary referred to items 18 to 36 of Sch 1 to the A mendment Act, which included the proposed s 63(3A) , as provision s that clarify procedural issues relating to the conduct of review assessments : New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 November 2007 . Section 63(3A) may have been prompted by the first instance decision dated 4 October 2007 in McKee . It is also confirmat ory of the majority ’ s analysis in McKee and the correctness of a broad construction of the ambit of a review under that earlier legislation. The significance of s 63(3A) of the MAC Act (and, by analogy, s 7.26(6) of the MAI Act) was emphasised by Leeming JA (Beazley P and Basten JA agreeing) in Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [ 9] : ... Although styled a "review", in truth the panel is determining afresh the medical assessment matters referred to it. That is confirmed by s 63(3A) which provides that the review is not limited to that aspect of the assessment alleged to be incorrect, and is to be "by way of a new assessment" of all the matters. (ii) Mandoukos Mandoukos involved a judicial review of a decision of a medical assessor and a delegate of the President of the PIC under the MAI Act . Both a medical assessor and a r e view p a nel found that the appellant's cervical spine injury sustained in a motor accident was a “ non-mino r ” injury ( i.e. not a “ threshold injury ” ) for the purpose of the A ct. T he appellant subsequently lodge d an application for the medical dispute to be referred again for medical assessment under s 7.2 4(2 ) of the MAI A ct based on additional medical information, including an operation carried out on 1 July 2020 in which bone was removed from part of his cervical spine . T he medical assessor assessed the soft tissue injury to the cervical spine as being a “ minor injury ” . The appellant then sought a review of that assessment and claimed that the surgery on 1 July 2020 involving the removal of a small portion of bone was necessarily a non-minor injury. The President ’ s delegate declined to refer the matter to a r e view p anel. The appellant sought judicial review of both the second decision of the medical assessor and the delegate ’ s decision not to refer the further medical assessment to a review panel. The re is a lengthy and helpful discussion as to the proper construction o f the term “ medical dispute ” in the leading judgment of St ern JA ( Leeming and Kirk JJ A agreeing) . The following findings are relevant , noting, however, that these findings are directed not to the ambit of a review under s 7.26 of the MAI Act (which issue did not arise ) but rather to the ambit of a medical dispute for the purposes for s 7.17. First, a dispute between the claimant and an insurer about a medical assessment matter, as referred to in s 7.17, is a reference “ to the dispute which has in fact arisen between a claimant and an insure r ” , albeit that the dispute “ must relate to the subject matter of a medical assessment matter ” ( at [ 73]) . Secondly, the Court rejected the appellant ’ s contention that a “ dispute ... about a medical assessment matter ” in s 7.17 necessarily entails that the medical dispute comprises “ the whole of the relevant medical assessment matter ” , as regards a particular body part (namely, the appellant ’ s cervical spine). Her Honour stated at [74] that acceptance of the appellant ’ s construction would mean that: ... it would be incumbent upon a medical assessor under the Act to trawl through all material provided to identify whether there is any matter which, albeit not complained of or identified as such by a claimant, could fall within the ambit of personal or bodily injury as defined in the Act. Each and every instance of medical or surgical treatment would need to be interrogated by the medical assessor to ascertain whether it could itself be characterised as such an injury. Such a construction of the Act should not be adopted absent clear statutory language in support. The language of the Act falls well short of meeting that threshold. Thirdly, Stern JA added at [78] (emphasis added): Thus, the medical dispute “about a medical assessment matter” will, in each case, be a question of fact depending upon the ambit of the dispute between the parties at the relevant time having regard to the competing claims made. Whilst it is of course possible that a dispute about a medical assessment matter might comprise the whole of the relevant medical assessment matter, that is not necessarily so. It may be interpolated that this passage is consistent with Allsop P ’ s observations at [6] in McKee . And although Mandoukos did not involve review of a medical assessment by a r eview p anel, the passage also accords with the terms of s 7.26 (6) of the MAI Act, which make clear that a review of a medical assessment by a re view p a nel is by way of a new assessment of all the matters with which the medical assessment is concerned and is not limited to a review of only that aspect of the original assessment which is alleged to be incorrect. Moreover, I consider that Stern JA ’ s references at [78] to the ambit of the medical dispute about a medical assessment matter being a question of fact which falls for determination at the relevant time , having regard to the competing claims made, also apply when the issue arises on a review. I do not read [78] as saying that the delineation of a medical dispute is to be done solely by reference to the description of the dispute in the application for medical assessment . The passage recognises that the ambit of a dispute may change . Fourthly, at [84], St ern JA referred to McKee . Her Honour said : As is apparent, McKee does not support Mr Mandoukos’ contention that the ambit of a “medical dispute” in s 7.17 of the Act is not limited to the actual medical dispute between the parties which is referred for assessment. Rather, the analysis of the powers of the review panel is premised upon the desirability of the review panel reviewing the entirety of the “medical dispute” referred to the medical assessor, being (under the 1999 Act) the “disagreement between the claimant and the insurer” about particular matters: at [7] (Allsop P) and [24] (Giles JA), before confirming or revoking the medical assessor’s certificate. Fifthly, a t [79]-[81], Stern JA explained why she considered that her preferred construction of the phrase, “ a dispute ... about a medical assessment matter ” was supported by Skates v Hills Industries Ltd [2021] NSWCA 142 and Scone Race Club Ltd v Cottom [2024] NSWCA 34 . Both those cases dealt with what her Honour described at [79] as the construction of the “ somewhat analogous and similarly worded ” s 319 of the WIMWC Act . Both Skates and Scone contain some statements of principle which support a broad construction of the concept of a “ medical dispute ” , but in my view both cases are distinguishable on their facts . In Skates , Leeming JA observed that the scope of a medical dispute was to be determined by various documents, including correspondence between the worker and the insurer and attached medical expert report s , as well as the referral document itself . T he referral form completed by a d e legate of the Registrar of the Workers Compensation Commission omitted any reference to the parties ’ dispute regarding injury to the worker ’ s left wrist . D espite the insurer conceding that the referral should have included this body part, the Appeal Panel considered that it was bound by the terms of the referral. The majority of the Court of Appeal (Basten and Leeming JJA) set aside the impugned certificate and directed that the left wrist had to be included as a body part to be assessed in the terms of a ny new referral for a further medical assessment. These facts are very different to those here. Scone related to the issue whether a m e dical a ppeal p anel had erred in declining to consider documents attached to an Application to Admit Late Documents ( AALD ) in the context of a medical dispute under s 319 of the WIMWC Act . The functions of an Appeal Panel under that statut ory regime were discussed by Basten AJA at [28]f f . By operation of s 328(2) of the WIMWC Act, the Appeal Panel was restricted to the grounds of appeal on which the appeal was made. The Court held that the Appeal Panel was correct not to extend the medical assessment so as to include a separate injury to the lumbar spine as sought by the worker in the AALD. Basten AJA explained at [53]: As the Appeal Panel was restricted to the grounds of appeal raised in the referral (and any submissions accompanying the referral) and to the injury the subject of the referral (namely to the right knee), it could not properly have dealt with either of the matters raised in the late documents accompanying the application of 9 March 2022. S cone is distinguishable . From the outset, the injury to Mr Mohammed ’ s left shoulder was consistently identified as one of the several body parts requiring assessment to determine whether or not it was a threshold injury. Sixthly , her H onour explained at [94] of Mandoukos that , in the context of the circumstances of that case , “ the medical dispute referred for assessment under s 7.20, or referred again for assessment under s 7.24 of the Act , is the actual medical dispute between the claimant and insurer about the relevant medical assessment matter ” . T he point which emerges from these authorities is that the ambit of a medical dispute is essentially a question of fact and that while the terms of an application for medical assessment are plainly relevant in delineating the ambit of the dispute, regard may also need to be given to such other matters as the parties ’ claims, submissions or medical evidence which may have the effect of broadening (or narrowing) the ambit of the dispute. In my opinion this analysis applies to the ambit of a medical dispute in the context of both an initial medical assessment and an assessment by a r eview p anel under the MAI Act. Moreover, in a review, it is important to give effect to s 7.26(6) of the MAI Act , which highlights the importance of identifying all the matters with which the medical assessment is concerned . I consider that the ambit of the medical dispute before the Review Panel in this case included the issue of whether or not the injury to Mr Mohammed ’ s left shoulder was a non-threshold injury. That is because of the following relevant matters , all of which cast light on what were “ the matters with which the medical assessment is concerned ” : The injury to Mr Mohammed ’ s left shoulder was one of the injuries referred for the original medical assessment on 4 May 2023 with a view to determining whether or not it was a non-threshold injury. That application described the injury to the left shoulder as “ S upraspinatus tendinosis involving his left shoulder together with subacromial bursitis ” . B ut it is also significant that in its reply to Mr Mohammed ’ s PIC application , GIO made a specific submission that a report dated 16 May 2022 by Mr Mohammed ’ s general practitioner on an ultrasound carried out earlier that month revealed “ [m]ild changes of supraspinatus, without evidence of tear ” (see at [ 18 ] above). This submission suggests that GIO did not regard the medical dispute as being confined to the injury description in the application , but extended to the issue of whether there was a tear. Although there was no specific reference to Mr Mohammed ’ s left shoulder injuries in his application for a further medical assessment (see at [ 22 ] above), the injury to the left shoulder was one of the injuries which the delegate referred for further assessment using the same injury description as in the application for medical assessment dated 4 May 2023 (see at [ 24 ] above). In his C ertificate dated 7 October 2024, following the further assessment, Dr Woo found that the injury to Mr Mohammed ’ s left shoulder was a soft tissue injury and a threshold injury. Again, he referred to the GP ’ s report of the ultrasound o n 13 May 2022, which revealed “ Mild changes of supraspinatus tendinosis without evidence of tear ” (see [ 25 ] above). Thus, the issue of whether or not there was a tear continued to be regarded as falling within the ambit of the medical dispute. In its submissions dated 5 November 2024 in support of its application for review, GIO noted that injury to Mr Mohammed ’ s left shoulder was one of the injuries he claimed to have suffered in the motor accident and that this injury fell outside the definition of a threshold injury . GIO said that it disputed that Mr Mohammed had suffered any non-threshold injur ies . In accepting GIO ’ s review application and referring the matter for review by the Review Panel, the delegate noted that Dr Woo ’ s certificate dated 7 October 2024 included a finding that the injury to Mr Mohammed ’ s left shoulder was a soft tissue injury and a threshold injury for the purpose s of the Act. Although the basis for the delegate ’ s decision to make a referral related only to the lumbar spine injuries, the referral to the Review Panel was not limited to that particular injury, presumably reflecting the delegate ’ s understanding of s 7.26(6) of the MAI Act . As a result of directions made by the Review Panel for the production of medical records, the two reports described at [ 28 ]-[ 29 ] above were produced in the course of the review process , both of which reported that there was a partial thickness tear of the supraspinatus tendon in Mr Mohammed ’ s left shoulder. On 1 September 2025, as part of the review process, Dr Oates re-examined Mr Mohammed. Dr Oates referred to Dr Mohammed ’ s report dated 2 January 2025 which identified the tear, a matter which he must have taken into account in conducting the examination and giving his report . On the basis of the re-examination, Dr Oates also noted that although the left shoulder injury had improved, Mr Mohammed was unable to move it fully overhead (see at [ 37 ] above ). P resumably appreciating the need for procedural fairness, the Review Panel issued the direction dated 24 October 2025 , which drew the parties ’ attention to the fact that there was a medical report which revealed a partial thickness tear and GIO was directed to make any submissions as to whether that tear was caused by the motor accident. In its detailed submission s in response, GIO raised no objection that this issue was beyond the ambit of the dispute. That may not be determinative but it is part of the overall factual matrix. In the light of all these matters, as well as the effect of s 7.26(6), I consider that the ambit of the medical dispute before the Review Panel included the issue of whether the tear to Mr Mohammed ’ s left supraspinatus tendon was a non-threshold injury. (iii) Toole and Cahill In my respectful view , this analysis and conclusion is not contradicted by Adamson JA ’ s decisions in both Toole and Cahill . In Toole , her H onour held that a medical assessment was invalid in that it assessed a matter outside the scope of the medical dispute. As the following passages reveal, her H onour acknowledged at [42]-[43] that the ambit of the dispute was to be determined by reference not only to the terms of the referral, but also by medical reports submitted by either party: The ambit of the dispute which was referred to the medical assessor is evident from the terms of the referral. It accorded with the claimant’s claim with respect to injuries to his lumbar spine and corresponded with the insurer’s rejection of the claim. Thus, the terms of the referral reflected the “medical dispute” between the parties. In these circumstances, the referral delineated the ambit of the medical assessor’s jurisdiction. It was an error for the medical assessor to include a matter which was not within the ambit of the referral: see Scone Race Club Ltd v Cottom [2024] NSWCA 34 ( Scone ) at [53] (Basten AJA, Gleeson and Mitchelmore JJA agreeing). While there may be cases where the ambit of the referral is a question of fact which is for the assessor (or review panel) to determine, the present case is not one of them since the injuries referred were stated with precision and did not include a fracture to the L2. Nor did the medical reports submitted by either the claimant or the insurer indicate that there had been a fracture to the claimant’s L2. Her H onour then explained at [ 44]-[46] why Skates and Scone were consistent with that analysis. Her Honour further explained at [4 7 ] why Mandoukos was to similar effect , with specific reference being made to [78] of Stern JA ’ s judgment in that appeal (which is set out at [ 73 ] above ) . Fo r completeness, it may also be noted that in Toole at [ 53], Adamson JA said it was unnecessary to determine whether there are circumstances in which it may be lawful for a medical assessor to go beyond the terms of a referral, simply because it was not suggested that there were any such circumstances in that case. That is to be distinguished from the position here . As to Cahill , the plaintiff there sought judicial review of the decision of a r e view p a nel that the claimant had suffered a non-threshold injury to his lumbar spine. The issue was whether the claimant had at least two clinical signs of radiculopathy, which would have resulted in his lumbar spine injury qualifying as a non-threshold injury . T he R eview P an el accepted the claimant ’ s case, finding that the claimant had suffered a tear of his lumbar disc cartilage. But none of the material before the R e view P anel referred to any such injury and it was not apparent on what basis the tear had been detected by the R e view P anel. The insurer ’ s complaints of inadequate reasons and procedural unfairness were accepted by Adamson JA in Cahill . Relevantly, her H onour made the following observations at [39] and [40] regarding procedural fairness requirements, with which I respectfully agree: Procedural fairness requires that where the review panel proposes to determine a crucial matter on a basis on which neither party has adduced evidence or made submissions, the review panel is obliged, as a matter of “practical justice” to draw that matter to the parties’ attention in order to give them the opportunity to provide material and make submissions about it: McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 at [8] (Allsop P); Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32]-[37] and [41] (Leeming JA, Beazley P and Basten JA agreeing); applied in AAI Limited trading as GIO v Amos [2024] NSWCA 65 at [55] (myself, Kirk JA and Basten AJA agreeing). In the present case, the review panel decided a key matter – that the injury to the claimant’s lumbar spine was a non-threshold injury – on a basis which had not been put to it and, accordingly, which the parties could not, without prior notice, have contemplated would be the basis for the decision. In these circumstances, the determination that the injury to the claimant’s lumbar spine is a non-threshold injury involves a denial of procedural fairness. This is both an error of law on the face of the record and a jurisdictional error: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J). Naturally, each case will necessarily turn on its own particular facts and circumstances, as is reflected in authorities such as Toole and Cahill . (iv) Zadehfard Zadehfard was another case relied upon by Ms Gumbert. It involved judicial review of a decision of a medical assessor. The plaintiff complained that the medical assessor went beyond the ambit of the medical dispute and denied him procedural fairness. In his application to the PIC for medical assessment, the plaintiff identified the only issue in dispute , which was “ Treatment and care reasonable and necessary ” (this being a medical assessment matter: MAI Act S ch 2, cl 2(b)). The plaintiff relied on medical advice that he should undergo surgery in the form of a “ L 5/ S1 interior lumbar interbody fusion ” . The insurer declined liability for such surgery on the basis that there was no nexus between the symptoms in the plaintiff ’ s lumbar spine and the motor vehicle accident , relying on medical evidence that the plaintiff had a pre-existing injury to his lumbar spine. The delegate of the PIC referred the following matters for assessment by a medical assessor (see at [21]) (emphasis in original): Disputes to be assessed: • Treatment and care reasonably necessary Injuries to be assessed – Permanent Impairment • Whether the proposed L5/S1 Anterior lumbar interbody fusion surgery as recommended by Dr Peter Khong is causally related to the injuries sustained in the motor vehicle accident. • Whether the proposed L5/S1 Anterior lumbar interbody fusion surgery as recommended by Dr Peter Khong is reasonable and necessary in the circumstances. The medical assessor found in favour of the plaintiff on the issue of causation but concluded that the recommended lumbar spine surgery was not reasonable and necessary in the circumstances. He gave detailed reasons for that conclusion. The plaintiff considered that some of those reasons (as set out by Chen J at [26]) related to matters which were not in dispute between the parties. The plaintiff applied to the PIC for the medical assessment to be referred to a review panel. The PIC delegate declined to do so as she was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. On judicial review, the plaintiff argued that the medical assessment was procedurally unfair because the medical assessor relied on matters which were beyond the ambit of the medical dispute and he was not given an opportunity to address those matters. Significantly, the insurer accepted that the medical assessor had approached the matter beyond the ambit of the parties ’ dispute, but claimed that this did not produce invalidity because the matters complained of had to be assessed by the medical assessor because they were “ essential elements of the statutory task ” . Chen J accepted that the parties could narrow aspects of their medical dispute, referring to what Stern JA said in Mandoukos at [73] and [78]. At [48], Chen J said: Thus, ordinarily, the application, the evidence adduced in support and the submissions prepared by the parties establish and define the parameters of the dispute. As explained in Mandoukos at [73] and [78], that may encompass any and every aspect of the medical assessment matter, but it need not. There is no necessary incompatibility between the parties narrowing the nature and extent of a medical dispute and the medical assessor discharging their functions and forming their own opinion on that dispute. That is because, if a medical assessor proposes to resolve a matter outside the ambit of the dispute as narrowed by the parties, then the fairness in them doing so would squarely arise for their consideration and condition the exercise of their functions: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]. At [6 2], Chen J said: If the parties choose to narrow issues in the medical dispute, then I do not consider that the medical assessor is free to simply depart from how the parties have approached that dispute: see [48], above. However, that is what occurred here: the medical assessor, having identified the competing contentions of the parties and thereby identified the ambit of the dispute, proceeded to determine the matter without regard to their approach. His Honour concluded that the plaintiff had been denied procedural fairness because the medical assessor failed to afford him an opportunity to address the matters relied on by the medical assessor which were matters outside the ambit of the parties ’ dispute. In my view, Zadehfard is distinguishable . In contrast to the claims here, the parties there were agreed that the medical assessor had approached the matter beyond the ambit of the parties ’ dispute. The primary issue was then the issue of procedural fairness. For the reasons given above, I consider that the Review Panel was entitled to take the view that the ambit of the medical dispute extended to include the issue whether the tear to Mr Mohammed ’ s left supraspinatus tendon was a non-threshold injury. I shall shortly explain why I also consider there was no procedural unfairness, unlike the position in Zadehfard . For all these reasons, I reject ground 1. (b) Ground 2: procedural fairness T he relevant legal principles concerning procedural fairness in this statutory context are helpfully and accurately summarised by Adamson JA in Cahill at [ 39 ]-[40 ] . See also Jarvis v Allianz Australia Insurance Ltd (2022) 102 MVR 476; [2022] NSWCA 232 at [65] per Basten AJA, Bell CJ agree ing , and AAI Limited trading as GIO v Amos [2024] NSWCA 65 at [55]-[61] per Adamson JA, Kirk JA and Basten AJA agreeing. GIO ’ s complaint of procedural un fairness echoes the rejection of a similar complaint in Amos . At first instance in the Amos litigation, the primary judge held that a review panel was obliged by procedural fairness requirements to put the plaintiff “ on notice of the precise issue with which the plaintiff must deal, or, at least, is given sufficient information to allow the plaintiff or his legal representatives to have a reasonable apprehension of the fine nature of the distinctions being drawn and the need to deal with them ” . On appeal, it was held that this approach went too far and was inconsistent with the reasoning of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] regarding the function of a medical panel under th e A ccident Co mpensation A ct 1985 (Vic). As Basten A JA said at [92] concerning the approach of the primary judge in the Amos litigation: That expansion was not supported by the reasoning in Wingfoot , which did not refer to procedural fairness at large, but to a specific aspect of the obligation which was described. What the claimant sought to do, and the primary judge accepted, was to expand that obligation to impose on the panel a requirement to provide information to the claimant as to the nature of the medical evidence which the panel thought might be dispositive, so that the plaintiff or his legal representatives could deal with it. That is not the way a medical examination is conducted. The proposed expanded obligation is inconsistent with the function of the medical assessors identified in Wingfoot and with the statutory scheme under the New South Wales legislation noted above. In the present proceeding, the Principal Member ’ s direction dated 24 October 2025 is critical. T he terms of the direction are summarised at [ 38 ] above. It is notable that GIO responded to the direction in the specified time, made no complaint that the matter the subject of the direction was beyond the terms of the medical dispute and made substantive submissions as to why the R eview P anel should not act upon Dr Ch ug ’ s report , but rather should give paramountcy to the fact that the 13 May 2022 ultrasound showed no tear to the left shoulder. These submissions directly responded to the direction given on 24 October 2025. I do not accept GIO ’ s submission that procedural fairness required the Review Panel to put it squarely on notice that the Re view P anel propose d to find that the initial ultrasound report dated 13 May 2022 , which stated that there was no evidence of a tear in Mr Mohammed ’ s left shoulder , was wrong . I do not accept that the R eview Pa nel made any such finding of fact. Ms Gumbert pointed to [110] of the R eview P anel ’ s reasons which is set at [ 48 ] above. But read fairly and reasonably, this passage does not involve the making of a clear finding that the ultrasound dated 13 May 2022 showed a tear. Rather, relying upon its medical experience and expertise, the Review Panel was saying that merely because the 13 May 2022 scan did not disclose a tear was not conclusive of the absence of pathology, having regard to the difficulty of reading an ultrasound scan. T he R eview P anel also made reference to evidence independent of the 13 May 2022 sca n which was consistent with a finding that the motor vehicle accident caused a tear to Mr Mohammed ’ s left shoulder. That other evidence included Mr Mohammed ’ s contemporaneous onset of left shoulder symptoms of rotator cuff pathology, the failure of physiotherapy to resolve the problems, the absence of any explanation of a prior or subsequent incident which explain ed the tear , and consistency with Dr Oates's re-examination findings. Even if I am wrong in my reading of [ 110] o f the Review Panel ’ s reasons , I consider that the direction dated 24 October 2025 gave GIO sufficient notice of the issue which was addressed by the Review Panel at [109]-[12 1 ] of its reasons. The terms of GIO ’ s detailed submission s dated 31 October 2026 make abundantly clear that GIO urge d the Review Panel to give primacy to the 13 May 2022 ultrasound scan as not revealing a tear, in strong preference to Dr Chug ’ s report which was obtained much later in the history of the matter. In other words, GIO squarely addressed the issue of the relative weight which the Review Panel should attach to these two contradictory medical reports , an issue which was implicitly raised by the direction dated 24 October 2025. For these reasons, ground 2 is rejected . Conclusion Fo r all these reasons, the summons filed 10 February 2026 will be dismissed , with costs . ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2026