What happened: A NSW review panel cut an injured tiler's impairment rating from 13% to 8% after rediagnosing his condition, dropping him below the threshold for non-economic loss damages
Who's involved: AAI Limited trading as GIO (CTP insurer) and a self-employed tiler injured in a 2020 motor accident
What's at stake: Access to non-economic loss damages under the Motor Accident Injuries Act 2017, which requires whole person impairment greater than 10%
Why it matters: Insurers pursuing medical reviews may succeed not by proving malingering but by securing a rediagnosis that shifts the impairment arithmetic
Where it stands: Decided - the review panel revoked the original 13% certificate and issued a new certificate at 8% WPI
A self-employed tiler who built a business with four employees after arriving in Australia as an Afghan refugee has been assessed below the impairment threshold that would unlock damages for pain and suffering. Not because a review panel found he was faking his injuries. Because it diagnosed a different condition.
The NSW Personal Injury Commission review panel revoked an earlier certificate from Senior Medical Assessor Mason, who had assessed the tiler at 13% whole person impairment for persistent depressive disorder and panic disorder following a September 2020 motor accident. The panel's new assessment landed at 8% - for a single, narrower diagnosis of major depressive disorder of mild severity with anxious distress. In practical terms, the original assessor had identified two separate psychiatric conditions; the panel found just one, and rated it as less severe. Under the Motor Accident Injuries Act 2017, a claimant needs to clear 10% whole person impairment to access non-economic loss damages. Five percentage points made all the difference.
AAI Limited, trading as GIO, had argued the tiler's psychiatric symptoms were unreliable and exaggerated. The insurer pointed to a vocational assessment, whose psychometric testing found the tiler's memory scores were so far below chance that the results raised a strong possibility the tiler had been deliberately choosing wrong answers. A separate functional capacity assessment flagged pain reports that did not match heart rate readings, zero reported grip strength in one hand despite demonstrated lifting capacity, and the tiler stopping a walking test because of neck and shoulder pain - despite those muscles not being engaged in the task. The insurer's psychiatrist, Dr Newlyn, concluded the tiler had "malingered mental health symptoms" and that his complaints would likely resolve once his CTP claim concluded.
The panel was not persuaded.
It noted that Professor Bright's assessment was conducted via telehealth rather than face-to-face, with no documented reason for the departure from standard practice. The tiler had only four years of schooling in Dari and a few months of English instruction. The panel found that his functional English - adequate for running a tiling business within Sydney's Afghan community - did not equate to comprehension of technical test instructions. It also found that the direction to "guess" an answer when unsure was unlikely to be culturally acceptable, and that switching between English and Dari during back-to-back testing could produce unreliable results through what clinicians call second-language fatigue.
The panel noted that its role was not to test the claimant's credibility but to reach its own independent medical opinion.
Where the original assessor had found two psychiatric conditions - persistent depressive disorder and panic disorder - the panel identified only one: major depressive disorder of mild severity, with anxious distress as a qualifying feature. That single change in clinical label carried arithmetic consequences. The panel rated the tiler's impairment across six categories of daily functioning, from self-care to adaptation, and arrived at a median score that translated to 8% whole person impairment.
The panel accepted the tiler was genuinely impaired. He had separated from his wife. He saw his two young daughters for just two hours a week. He could manage less than 20 hours of work-like activity per fortnight and would be, in the panel's words, "erratic" and "unreliable" in attendance. His adaptation to work was rated as severely impaired - the highest rating of any category.
But the panel also found the tiler's pre-accident psychological history was more significant than the original assessor had acknowledged. Before the accident, the tiler had consulted a psychiatrist and multiple GPs for depression, anxiety, and panic attacks. One GP had noted he was suffering from "severe depression" in March 2019 and referred him for specialist care. The panel diagnosed a pre-existing generalised anxiety disorder, though it assessed this at 0% whole person impairment because the tiler had been functioning and working without impairment at the time of the accident.
The rediagnosis - from two conditions to one, with recalibrated severity ratings - brought the final number to 8%. Below the line.
The insurer sought this review primarily on malingering grounds and lost that argument entirely. The panel's reduction came instead from its own independent clinical assessment - a fresh diagnosis and a different reading of the severity ratings. For claims teams weighing whether to seek a medical review of a certificate sitting just above threshold, the case illustrates that a new panel may deliver a different diagnosis and different ratings even when the credibility challenge does not land.
