Decision
AAI Ltd t/as GIO v Mohammed [2026] NSWSC 991
Sixty-Second-Or-Less Summary
A threshold injury dispute proceeds to the Commission for assessment. The Claimant lists supraspinatus tendinosis and subacromial bursitis as injuries to be assessed. The Review Panel finds a non-threshold injury based on evidence of a partial thickness tear of the supraspinatus tendon.
Did the Review Panel stray outside the scope of the dispute when identifying an injury not raised by the Claimant in his application?
In GIO v Mohammed, the Supreme Court held that the scope of a medical dispute is a question of fact to be determined by the circumstances of each case. In this matter, the overall tenor of the medical evidence, primary submissions, primary Medical Assessor’s decision and submissions made in response to Review Panel directions made it clear that a supraspinatus tear was within the scope of the dispute.
Principles
✅ The ambit of a medical dispute is essentially a question of fact and each case will turn on its own particular facts and circumstances.
✅ Whilst the terms of an application for medical assessment are plainly relevant in identifying the ambit of the dispute, regard may also be had to the parties’ claims, submissions or medical evidence which may have the effect of broadening (or narrowing) the ambit of the dispute.
Facts
The Claimant was injured in a motor accident on 2 May 2022.
The Insurer denied liability for ongoing statutory benefits on the grounds that the only injuries sustained in the motor accident were threshold injuries.
The Claimant lodged a threshold injury dispute in the Commission. He listed a number of injuries for assessment, including:
“Left shoulder – supraspinatus tendinosis involving his left shoulder together with subacromial bursitis”
On 10 November 2025, the Medical Review Panel certified that the motor accident caused a non-threshold injury to the Claimant’s left shoulder, in the form of:
“Partial thickness tear of the supraspinatus tendon”
The Insurer sought Judicial Review in the Supreme Court on the grounds that:
1️⃣ The scope of the medical dispute referred to the Review Panel for assessment did not include a tear of the left supraspinatus tendon because the dispute was limited to the specific left shoulder injury listed in the application.
2️⃣ The Insured was denied procedural fairness because the Review Panel did not give it notice that it might find that an ultrasound report showing no evidence of a tear was incorrect.
Supreme Court Decision
The Supreme Court rejected the Insurer’s first ground for review for the following reasons:
🟪 The ambit of a medical dispute is essentially a question of fact and each case will turn on its own particular facts and circumstances.
🟪 The terms of an application for medical assessment are plainly relevant in identifying the ambit of the dispute. Regard, however, may also be had to the parties’ claims, submissions or medical evidence which may have the effect of broadening (or narrowing) the ambit of the dispute.
🟪 Whilst the Claimant did not list a supraspinatus tendon tear in his application, it was clear that the parties regarded the presence or absence of a tear to be relevant to the question of threshold injury. For example, the Insurer mentioned the absence of supraspinatus tear in its submissions. The primary Medical Assessor also specifically looked for, but did not find, a tear.
🟪 Furthermore, as a result of a direction made by the Review Panel for the production of medical records, two reports were produced which reported a partial thickness tear of the supraspinatus tendon. In response to the Review Panel’s request for submissions as to whether the tear was caused by the motor accident, the Insurer provided detailed submissions without raising any objection that the issue was outside the scope of the dispute. Whilst not determinative, this suggested that the presence, or otherwise, of a tear was within the contemplation of the parties.
The Supreme Court dismissed the Insurer’s second ground for a number of factual reasons, which disclosed no general point of principle. The Supreme Court disagreed with the Insurer’s characterisation that the Review Panel had decided that the ultrasound was wrong and the Supreme Court noted that the Insurer had, in any event, made detailed submissions about the weight to be given to various investigations including the subject ultrasound report.
The Supreme Court, therefore, dismissed the Insurer’s application for Judicial Review.
My Perspective
The decision in Mohammed suggests that the whole of the procedural history must be taken into account in order to determine the scope of a medical dispute.
Contrary to the general understanding of Mandoukos, the dispute is not necessarily limited to the injuries listed by the parties in the Application and Reply forms. The ambit of the dispute may be widened or narrowed by the subsequent conduct of the parties in lodging documents, making submissions or responding to directions made by the Commission.
Based on the reasoning in Mohammed, it appears that if the conduct of the parties, over the life of the dispute, suggests that a particular injury was within their contemplation, then a finding is likely to be made that the scope of the dispute included that injury.
PJH