Decision
Contarino v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 636
Sixty-Second-Or-Less Read
A Claimant suffers a threshold injury to their right shoulder. They subsequently seek the cost of a total right shoulder replacement with the express intention of arguing that the surgery renders the right shoulder injury non-threshold. The Insurer denies liability for the surgery because more than 52 weeks have passed since the accident and the Claimant’s only injuries are threshold injuries.
Can the Claimant’s application for a medical assessment of the treatment dispute proceed?
In Contarino v IAG, a PIC Member dismissed the Claimant’s medical assessment application, pursuant to s 54 of the PIC Act, on the grounds that it was frivolous and vexatious because the outcome did not affect the Claimant’s entitlements. The Insurer could not be liable for the treatment given the Claimant’s threshold injuries. The PIC Member also observed that the dispute could not be pursued for an ulterior purpose.
Principals
✅ Section 54 of the Personal Injury Commission Act 2020 provides that PIC proceedings – including medical assessments – may be dismissed if they are frivolous and vexatious and otherwise misconceived.
✅ Proceedings which have no potential to impact the Claimant’s entitlements are frivolous and vexatious should be dismissed.
✅ Proceedings, which cannot affect the Claimant’s entitlements, cannot be maintained for an ulterior purpose.
Facts
The Claimant was injured on 8 February 2024 when he was rear-ended whilst stationary at a set of lights.
A Medical Assessor subsequently certified that the only injuries the Claimant sustained in the accident were threshold injuries; namely soft tissue injuries to the spine and the right shoulder. The injury to the right shoulder exacerbated pain associated with a pre-existing rotator cuff repair but did not cause any new tear.
The Claimant subsequently sought approval of a right shoulder replacement procedure. The Insurer declined liability on the grounds that, pursuant to section 3.28(1)(b) of MAIA, the Claimant was not entitled to treatment and care beyond 52 weeks, from the date of the motor accident, given the uncontested finding that the only injuries were threshold injuries.
The Claimant subsequently lodged a medical dispute in the Commission.
The Insurer sought to have the medical dispute dismissed on the grounds that it could not be liable for the cost of the surgery even if a finding were made that it was reasonable and necessary and related to the motor accident.
There was no secret that the Claimant intended to use the advent of surgery to support an argument that the surgery transformed the threshold injury to her right shoulder into a non-threshold injury. That intention was openly stated in her submissions.
The Member’s Decision
The PIC Member agreed that the Claimant’s application should be summarily dismissed.
The Member stated, at the outset, that:
“This is another example of a party seeking a medical assessment where the determination will not impact on the rights and an attempt to use the determination for another purpose”.
Having made that observation, the Member provided the following reasons:
🟪 Section 54 of the Personal Injury Commission Act 2020 applies to medical assessments.
🟪 Section 54 specifically states that proceedings may be dismissed if they are “frivolous or vexatious or otherwise misconceived or lacking in substance“.
🟪 A strike out application should be exercised sparingly and in circumstances were the Claimant’s case is taken at its highest – see Insurance Australia Limited t/as NRMA Insurance v Fayed [2023] NSWPICMP 413
🟪 Pursuant to s 3.28(1)(b), the Insurer is not liable to pay for the proposed treatment in any circumstances.
🟪 The Claimant’s request for a medical assessment is frivolous and vexatious, or otherwise misconceived, in circumstances where the Insurer cannot be liable, irrespective of the outcome.
🟪 The ongoing maintenance of the proceedings, where there is no entitlement to relief, wastes costly and scarce resources where the Medical Assessor could be otherwise deployed to determine a dispute which affects a Claimant’s entitlements.
🟪 Even if allowed to proceed, the Medical Assessors findings on causation are not binding in any subsequent threshold injury dispute.
The PIC Member, therefore, dismissed the Claimant’s application for medical assessment.
My Perspective
The decision in Contarino makes it clear that the PIC will not waste its precious resources on disputes which do not affect the Claimant’s entitlements.
Furthermore, to put it bluntly, a treatment dispute relating to a threshold injury cannot be pursued with the ulterior motive of setting up an argument that the treatment renders the threshold injury non-threshold.
The Claimant’s gambit, in this case, was misguided in any event. If the shoulder replacement went to plan, the changes to the Claimant’s body resulting from the surgery would not constitute an “injury”, in the absence of detriment, pursuant to the definition in s 1.4 of MAIA. Without an “injury”, the question of threshold versus non-threshold injury does not arise. For more information see Allianz Australia Insurance Limited v Mandoukos [2025] NSWPICMP 844.
PJH