"Without the opportunity to review of the clinical record from her treating general practitioner, and physiotherapist, it is difficult to determine the timing of the failure of the rotator cuff repair and the extent of exacerbation or aggravation at the time of the motor vehicle accident.

On the available evidence there is insufficient evidence to determine the causation of the failure of the cuff repair."

1. There was no application to review the medical assessment.
2. In a letter dated 20 January 2025 headed "Claim Closure" the insurer advised that the statutory benefits period will cease on 7 February 2025. The insurer advised that it would pay outstanding invoices for treatment provided on or before 7 February 2025.
3. On 5 May 2025 Dr Dave provided an estimate of his fees and operative assistant for a total shoulder replacement and associated rotator cuff repair.
4. On 2 July 2025 the insurer provided an internal review decision noting that the surgery recommended by Dr Dave had not been provided on or before the 52-week period following the motor accident. The insurer referred to s 3.28(1)(b) of the MAI Act noting that the claimant was not entitled to statutory benefits for treatment and care expenses incurred beyond the 52 weeks period after the motor accident. The insurer declined the claim for the treatment expense.
5. The claimant commenced proceedings in the Personal Injury Commission (Commission) on 25 July 2025 seeking findings that right shoulder surgery proposed by Dr Dave was "reasonable and necessary". It does not appear from the terms of the application that the claimant sought an order that the proposed treatment relates to an injury caused by a motor accident. The issue of causation of the proposed treatment would be a live issue in light of the findings made by Medical Assessor Home.
6. The claimant's submissions in support of the treatment dispute alleges that the motor accident exacerbated pain and stiffness in the right shoulder and that the reverse shoulder surgery replacement recommended by Dr Dave was reasonable and necessary.
7. The insurer filed a reply to the application. Relevantly the insurer stated:

"The Insurer highlights the Claimant has failed to evidence the requested treatment and care has been incurred and or provided on or before the 52-week cut-off period, nor are any submissions to address the issue.

Consistent with Section 3.28(1)(b) of the Act, there is no liability for treatment and care expenses incurred and or provided more than 52 weeks after the motor accident even if it were accepted to be causally related and reasonable and necessary.

Thus, the Insurer submits the present medical dispute under Schedule 2 2(b) of the Act should be dismissed under section 54 of the PIC Act."

1. 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. For the following reasons the claimant's application for medical assessment is summarily dismissed.

1. Pursuant to Schedule 2, cl 2 of the MAI Act declares certain disputes to be medical assessment matters. These matters include:

"[w]hether any treatment and care provided or to be provided to an injured person is reasonable and necessary in the circumstances or relates to an injury caused by a motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)".

1. Section 3.24 of the MAI provides that treatment expenses are not payable if they were not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
2. Section 3.28 of the MAI Act relevantly provides:

An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if:

(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or

(b) the person's only injuries resulting from the motor accident were minor injuries.

1. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.

1. The claimant filed written submissions dated 7 November 2025. The claimant relevantly submitted that the dispute was a medical assessment matter within the meaning of Sch 2 cl 2 of the MAI Act. She noted the dispute required the Medical Assessor to determine:

(a) Whether the proposed treatment is reasonable and necessary in the circumstances, and

(b) whether the proposed treatment is causally related to the injuries sustained in the motor accident.

1. The claimant submitted that there was no legislative basis "to dismiss the Claimant's application with respect to the insurer's decision".
2. The claimant also submitted:

"Inevitably, if the surgery to the right shoulder is found to be reasonable and necessary and causally related to the accident, and if the claimant were to go on and carry out such a procedure, then it would give rise to an argument that the claimant has suffered a non-threshold injury by virtue of the surgery having been performed."

1. The claimant submitted that the insurer's determination that the medical assessment be dismissed "is a misrepresentation of the Act and its mechanisms and {sic) is an abuse of process."
2. The insurer filed submissions in reply dated 14 November 2025. The insurer emphasised that the insurer's liability was limited to a period of 52 weeks by reason of s 3.28(1)(b) of the MAI Act. It referred to the decision of Insurance Australia Ltd v Mayer[2] that treatment and care expenses must be incurred with the relevant liability period and there was no indefinite liability to pay expenses beyond the 52-week period for threshold injuries or where the injured person was wholly or mostly at fault.
3. The insurer also submitted that the claimant's rationale for the dispute formed a basis that application is being used for an improper purpose or is otherwise an abuse of process.

1. On 27 November 2025 the partied were advised whether they wished to make further submissions. The following message was sent to the parties.

"The insurer's application to dismiss the treatment dispute has been referred to me together with the Application/Reply and parties' respective submissions.

The matter will now be determined on the papers as I am satisfied that there is sufficient information before me.

If any party seeks to make further submissions, then notification must be advised through the portal by 4 pm 28 November 2025."

1. There was no response seeking leave to file further submissions.

1. The claimed incorrectly asserted that there was no legislative basis to dismiss the proceedings. Section 54 of the Personal Injury Commission Act, 2020 (PIC Act) applies to medical assessments[3] and relevantly provides that proceedings may be dismissed if:

"(a) if it is satisfied that the proceedings have been abandoned, or

(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or

(c) for any other ground of dismissal specified in the Commission rules."

1. Rule 77(b)(v) of the Personal Injury Commission Rules (the PIC Rules) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:

"(v) the application is being used for an improper purpose or is otherwise an abuse of process".

1. Rule 127(3) of the PIC Rules provides that the function of the Commission under s 54 of the PIC Act is given to the President.
2. Table B of the delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member.
3. The principles of summary dismissal are discussed in Insurance Australia Ltd v Fayed[4] and those principles are repeated in these reasons. It is sufficient to repeat that a "strike out" (dismissal) application is exercised sparingly and in circumstances where the claimant's case is taken at its highest.
4. The application filed in the Commission was restricted to an assessment of whether the proposed surgical treatment was reasonable and necessary. The submission extended the scope of the medical assessment matters to include whether the treatment relates to the injury caused by the accident.
5. I accept the submission that, by reason of s 3.28(1)(b), the insurer is not liable to pay for the proposed treatment. The claimant's request for a determination of a medical assessment matter (Sch 2 and s 3.24) in the absence of an entitlement for statutory benefits under the legislation by reason of the time limit in s 3.28, means that the application is frivolous or vexatious or otherwise misconceived because the claimant is not entitled to any relief. By reason of the time limit in s 3.28, the claimant has no entitlement to statutory benefits under s 3.24.
6. The underlying dispute is the claimant's request for the payment of Dr Dave's expenses for the proposed treatment. The insurer is not liable to pay those expenses. The medical assessment matters cannot be separated from the underlying dispute between the parties which has been claimed and pleaded as the costs of the proposed surgery.
7. The medical assessor is referred a medical dispute (s 7.23(1)) and is to give a certificate as to the matters referred for assessment. The medical dispute is defined in s 7.17 to mean the dispute or issue between the parties.
8. Accordingly, the dispute is not only the issue of reasonable and necessary and/or causation but in relation to the proposed treatment recommended by Dr Dave.
9. As the insurer cannot be liable for the payment of the proposed treatment, that aspect of the medical dispute is frivolous and without substance.
10. Allowing the proceedings to continue is contrary to the objects in s 3 of the PIC Act which requires the Commission to "resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible". The ongoing maintenance of these proceedings where there is no entitlement to relief, wastes costly and scarce resources where the Medical Assessor can otherwise be utilised in determining medical disputes which are the subject of a potential entitlement.
11. I otherwise accept the insurer's submission that the maintenance of the application is an abuse of process as it is being maintained for an alternative purpose. The claimant's submission set out earlier[5] stated that if surgery was undertaken then that would assist the claimant in obtaining a ruling that there was a non-threshold injury.
12. The findings of a Medical Assessor are not determinative of causation in any other dispute between the parties: Owen v Motor Accidents Authority;[6] Allianz Australia Insurance Ltd v Girgis;[7] Brown v Lewis[8] and Pham v Shui.[9]
13. The above authorities concern the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act). Considering the provisions of the MAI Act, particularly sub-sections 7.23(1) and (2)(b), any medical assessment certificate is only conclusive evidence of what is certified. In light of the consistent statutory provisions concerning the conclusiveness of medical assessments issued under the MAI Act and MAC Act, the authorities referenced above would apply to the MAI Act.
14. A finding of causation on a treatment dispute is not binding on an issue involving whether the claimant sustained a non-threshold injury.
15. I otherwise note, although it is unnecessary to decide, that the claimant's assumption that subsequent surgery would mean the injury is non-threshold may be incorrect.[10]
16. Suffice to add, the claimant's submission that the insurer has acted improperly by way of misrepresentation or as an abuse is rejected. The insurer's application to summarily dismiss is accepted.
17. The claimant's application for medical assessment is dismissed pursuant to s 54 of the PIC Act and rule 77(b)(v) of the PIC Rules. The order is set out at the commencement of these Reasons.

[3] See Rule 127 (1)(d) of the PIC Rules.

[4] [2023] NSWPICMP 413.

[6] [2012] NSWSC 650.

[7] [2011] NSWSC 1424

[8] [2006] NSWCA 587.

[9] [2006] NSWCA 373.

[10] See Allianz Australia Insurance Ltd v Mandoukos [2025] NSWPICMP 844