1. The Medical Assessor issued a medical assessment certificate determining that the motor accident caused injuries to the chest, left knee, scarring, thoracic spine and left ankle.[8]
2. The Medical Assessor found that the injuries to the thoracic spine and left ankle had resolved and that the motor accident did not cause an injury to the cervical spine. The finding of no cervical spine injury was based on:

(a) the ambulance records indicated no cervical spine injury;

(b) the CT scan of the cervical spine dated 19 August 2022 revealed no acute abnormality;

(c) the claim form indicated no injury to the cervical spine;

(d) the claimant did not report a cervical spine injury or symptoms at the time of the original medical assessment, and

(e) physical examination of the cervical spine at the original medical assessment was normal.

1. Examination showed that the claimant had a mild valgus laxity which related to the tibial plateau fracture. Assessment for the left knee was based on a tibial plateau fracture with a five degree angulation assessed at 5% whole person impairment. The Medical Assessor did not allow any further amount for laxity as "the impairment is captured in the value for the tibial plateau fracture".
2. The surgical scar was assessed at 1%.

1. The Panel requested and were provided with separate bundle of documents provided by the parties.

1. The pre-accident records of Dr Mellows, general practitioner (GP) from 2009 note right ankle injury in April 2004, right metacarpal fracture in January 2011, back pain in October 2017 and chronic right shoulder pain in August 2020.[9]
2. In October 2018, Dr Kemp, orthopaedic surgeon, diagnosed degenerative arthrosis in the right shoulder.[10] The MRI scan of the right shoulder dated 11 August 2020 showed osteoarthritis and labral tear.[11]

1. The ambulance records refer to the claimant riding his bike when he was struck by the insured vehicle, thrown into the windshield of the car and then rolled onto the ground. Examination revealed left lower limb pain, thoracic spinal pain, left-sided chest pain with swelling noted to the left ankle and knee.[12]
2. John Hunter Hospital discharge referral refers to reported pain to the left chest, left knee and left heel.[13] The CT scan of the left knee showed an intra-articular comminuted fracture of the lateral tibial plateau involving the proximal tibial metadiaphyseal shaft with extension into the intercondylar eminence.[14]
3. The CT scan of the brain and cervical spine dated 19 August 2022 noted the motorbike accident with left chest wall tenderness and thoracic spine pain. The scans showed no acute abnormality in the cervical spine or brain.[15] The CT scan of the thorax, abdomen and pelvis showed no significant injury. The X-ray of the left knee showed a comminuted intra-articular fracture of the lateral tibial plateau extending into the metaphyseal region.[16]
4. On 21 August 2022 Dr Mackenzie performed a left tibial plateau open reduction and internal fixation.[17]
5. The claimant attended his GP on 24 August 2022 noting the motorcycle accident and referring to the left tibia fracture. The claimant was prescribed Tramadol 50 mg twice a day at that time.[18]
6. A certificate of capacity dated 25 August 2022 referred to a left tibia fracture.[19]
7. The claimant returned to Dr Mackenzie on 23 September 2022. The doctor noted that recent X-rays looked "excellent", pain had largely settled down and range of motion was from 0 to 100 degrees. Dr Mackenzie recommended that the claimant remained non-weightbearing for another two weeks and could start mobilising weight-bearing as tolerated.[20]
8. The claimant was reviewed by Dr Mackenzie on 1 November 2022.[21] The doctor noted that the claimant walked into the room with no appreciable limb and that recent X-rays showed that the fracture maintained an anatomic position and was not visible on the X-ray. Examination showed ACL laxity on the left more than on the right which the doctor opined, may resolve with physiotherapy.
9. A physiotherapist report dated 28 October 2022 noted that the claimant then reported sensitivity in the lateral left knee, discomfort when crossing legs and some weakness with pushing and pulling. The claimant also reported left-sided chest pain and sternal pain. The left knee had full range of motion, but the left ankle was slightly stiff to dorsiflexion.[22]
10. An X-ray of the lumbar spine dated 11 November 2022 noted injury to the low back in the teens with long-term back pain.[23]

1. Dr Frank Machart, orthopaedic surgeon, was qualified jointly by the parties and provided a report dated 12 October 2023.[24] Presenting complaints were pain and stiffness in the left knee.
2. The examination findings included a numbness distal to the scar not associated with specific peripheral nerve damage, diminished movement measured at 10° through 90° flexion and mild AP and collateral ligament laxity.
3. Dr Machart opined that the reasons for the severely diminished capacity for walking or movement were not immediately apparent although he accepted there would be some degree of post-traumatic stiffness.
4. Dr Machart assessed the left lower extremity based on the mild AP and collateral ligament laxity, the undisplaced tibial plateau fracture and assessed scarring at 1%. The combined impairment was assessed at 8%.
5. Dr Terry Kwong, rheumatologist, was qualified by the claimant and provided a report dated 13 May 2024.[25] Dr Kwong noted the tibial plateau intra-articular fracture with post internal fixation complicated by persistent limp and flexion contraction of the left knee and a left ankle strain which had settled. The doctor further opined that the flexion contracture was due to altered gait and limping.
6. Dr Kwong assessed the left knee based on loss of flexion at 12% whole person impairment and the left ankle based on loss of extension and flexion at 6%. The doctor allowed a further 1% impairment due to the surgical scar.

Claimant's submissions dated 16 February 2024[26]

1. These submissions noted that the injuries referred for assessment were the chest, cervical spine, thoracic spine, left knee and scarring.

Claimant's submissions dated 19 September 2024[27]

1. These submissions sought leave to review the medical assessment. The claimant submitted that the Medical Assessor did not provide adequate reasons why the collateral ligament laxity relating to the fracture is not a separate injury and assessable.
2. The claimant referred to the opinion of Dr Machart who assessed the collateral ligament laxity as a separate injury to the fracture and combined impairment in accordance with Table 64 of AMA 4.

Insurer's submission dated 6 March 2024[28]

1. The insurer noted that the application for permanent impairment covered injuries to the chest, cervical spine, thoracic spine, left knee and scarring.
2. The insurer noted the following evidence:

(a) claim form;

(b) ambulance report dated 19 August 2022;

(c) John Hunter Hospital records, and

(d) GP records dated 24 August 2022 with certificate of capacity and Centrelink medical certificate dated 25 August 2022.

1. The insurer submitted that any injury to the chest resolved noting the ambulance report referred to left-sided chest pain and the CT scan of the chest at the hospital identified no abnormality.
2. The insurer disputed that the claimant sustained an injury to the cervical spine noting the ambulance records, CT scan of the cervical spine which did not identify any acute abnormality, absence of complaint in the claim form and absence of complaint to Dr Machart.
3. The insurer disputed that the claimant sustained an injury to the thoracic spine caused by the motor accident although acknowledged that the ambulance report recorded the thoracic spine complaint. No thoracic spine injury was diagnosed at hospital and Dr Machart did not record any complaints made by the claimant in relation to the thoracic spine.
4. The insurer accepted that the claimant sustained a fracture to the lateral plateau of the left knee caused by the motor accident. It referred to the records of Dr MacKenzie in relation to treatment and subsequent recovery.
5. The insurer referred to the observations of Dr Machart noting there was a lack of consistency and submitted the claimant was overstating his disabilities in relation to the left lower extremity.
6. In relation to the assessment of the scar the insurer submitted that the assessment was 1% at most.

Insurer's submission dated 8 August 2024[29]

1. The insurer noted that the assessment of the claimant was for the chest, cervical spine, thoracic spine, left knee and scarring and that the claimant did not list injury to left ankle in the application form.
2. These submissions addressed the admission of the report of Dr Terry Kwong dated

13 May 2024. 3. The insurer noted that the left ankle was not referred in the claim form for the John Hunter Hospital discharge referral but was referenced in the ambulance report. There was no mention to the left ankle in the GP records. 4. The insurer noted that there was no complaint to Dr Machart in October 2023 with respect to the left ankle and that the doctor noted a lack of consistency in the claimant's presentation. 5. The insurer submitted that if the claimant sustained an injury to left ankle, it was minor in nature and did not give rise to a permanent impairment.

Insurer's submission dated 3 October 2024[30]

1. These submissions opposed leave to review the medical assessment.
2. The insurer submitted that the claimant provided no submissions or explanation as to how the original Medical Assessor failed to comply with the Guidelines.
3. The insurer submitted that the original Medical Assessor clearly found that the laxity on examination related to the tibial plateau fracture.
4. The insurer submitted that the Medical Assessor explained the differences from the opinion of Dr Machart.
5. The insurer referred to AMA 4 at page 84 which related to lower extremity diagnosis based estimates and stated that the Medical Assessor is to "only use one approach for each anatomical part".

1. The claimant was re-examined by both Medical Assessors. The examination report is as follows:

"Mr Burdekin was re-assessed by Dr Barnsley and Dr Cameron at Hornsby on

14 April 2025. The procedures for review of the previous decision were explained.

Prior to the motor accident Mr Burdekin said that his health was good except for a past injury of the left shoulder. There were ongoing problems with this shoulder. There has been surgery to the left shoulder.

Mr Burdekin is living in East Maitland at his parents' home. He works doing lawn maintenance company for a railway company. It is a full-time position that commenced in 2024.

X-ray of the left knee 21 September 2022 showed internal fixation of a tibial plateau fracture with screws and a plate. The fracture was fixed in a good position.

Mr Burdekin is a 41 year old man who was injured in a motorcycle crash on 19 August 2022. He was hit from the left side by a vehicle at a significant speed (70 to 80 km/hour). He has limited memories immediately after the crash. He was wearing work boots at the time of the accident.

Bystanders assisted. There was chest pain and an inability to walk. He was taken by ambulance to John Hunter Hospital. There was surgical treatment several days later.

There was ongoing chest pain and problems with the left knee. The left ankle was swollen for some time.

There was further treatment including physiotherapy.

There is some intermittent ongoing pain from the left knee. He said that the knee can give way. There is some clicking.

There is some numbness on the lateral aspect of the left lower leg.

With reference to the chest, Mr Burdekin said that his sneeze is now different. He said that there was no neck pain, no chest pain or left ankle pain.

Mr Burdekin is right handed, 171cm in height and weighs 75kg.

There was pain on movement of the right shoulder due to a recent injury (unrelated to the subject motor accident).

There were full ranges of movement at the cervical and thoracic spinal regions.

There were no neurological abnormalities in the upper extremities.

Upper extremity circumferences 25cm bilaterally below elbow and 30cm bilaterally above elbow.

There is a 10cm surgical scar on the lateral aspect of the left knee. It was inconspicuous.

At the left knee there is an extension lag of 5 degrees.

There were no neurological abnormalities in the lower extremities.

Lower extremity circumferences were 46cm on the right and 47cm on the left above knee, and 36cm bilaterally below knee.

Range of motion at both ankles - dorsiflexion 20 degrees, plantarflexion 70 degrees, inversion full and eversion 20 degrees.

No ankle abnormality was detected on the left and right sides.

At the left knee there was no varus or valgus deformity.

Range of motion at the right knee 5 degrees hyperextension to 140 degrees

Range of motion at the left knee was five to 120 degrees.

There is anteroposterior instability that is mild on the left. There is lateral collateral ligament instability on the left that was mild.

In the motorcycle crash on 22 August 2022 Mr Burdekin sustained significant injuries particularly to the left knee. There is assessable impairment at the left knee. The tibial plateau fracture and the ligament injuries at the left knee are separate injuries and are assessed for permanent impairment separately.

The injuries to the cervical spine, thoracic spine, chest and left ankle have resolved.

Left knee - tibial plateau fracture and ligament injury

The undisplaced tibial plateau fracture is assessed at 2% WPI with reference to Table 64, page 85 AMA4 Guides.

An impairment rating for both mild collateral and mild cruciate ligament laxity is not shown in Table 64, page 84 AMA4 Guides. Applying the ratings for separate injuries with reference to this table there is 6% WPI.

On page 75 AMA4 it is stated 'if the patient has several impairments of the same lower extremity part .... the whole person impairment estimates for the impairments are combined'. Therefore, there is 8% WPI as a result of the knee injuries.

The 10 cm surgical scarring at the left knee is assessed with TEMSKI scale, Table 6.18 Motor Accident Guidelines. The 'best fit' for Mr Burdekin's scarring is 0% whole person impairment because, while he is aware of the scar and able to locate it, there is good colour match, no trophic changes, no suture marks, no contour defect, it is in a position that is visible in short pants, there is no effect on ADL no treatment requirement and no adherence. It should be noted that section 6.261 Motor Accident Guidelines states, "a scar may be present and rated 0% whole person impairment."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[31]
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[32] and Insurance Australia Ltd v Marsh.[33]
3. The Panel adopts the detailed examination findings made by the Medical Assessor with the additional further short observations.
4. We reject the insurer's submission that the left ankle was not referred for assessment. Whilst the left ankle was not listed in the referral, impairment was assessed by Dr Kwong and formed part of the documents.
5. In Mandoukas v Allianz Australia Insurance Ltd [34] the Court held that there is no obligation by a Medical Assessor to consider "a matter [unless it] falls within the ambit of the medical dispute referred for assessment".[35]
6. This construction was consistent with the meaning of medical dispute in the workers compensation legalisation considered by the Court of Appeal in Skates v Hills Industries Ltd[36] and Scone Race Club Ltd v Cottom.[37]
7. The insurer's submission that the scope of the medical dispute is determined by the referral is incorrect and contrary to what was decided in Skates.[38] The referral document does not determine the scope of the dispute which is "crystallized by the correspondence"[39] making the claim.
8. The left ankle was assessed by the Medical Assessors to have no loss of range of motion. The contemporaneous ambulance report showed complaint which suggests injury. However, there is a general absence of complaint to that body part other than in the assessment of

Dr Kwong. It is likely that the claimant sustained a soft tissue injury to the ankle which resolved over time. The joint examination findings by the Medical Assessors show that there is no basis to find any structural pathology caused by the motor accident to the left ankle. 9. In relation to the assessment of the scars and applying Table 6.18 of the Guidelines, the Medical Assessors observed:

(a) the claimant was conscious of the scars (range of 1 - 9%);

(b) there was good colour match with surrounding skin (0%);

(c) the claimant was able to locate the scar (1%);

(d) there were no trophic changes evident to touch (0%);

(e) staple marks are barely visible (0%);

(f) there was no contour defect (0%);

(g) there was no effect on the activities of daily living (0%);

(h) there was no need for intermittent treatment (0%), and

(i) no adherence (0%).

1. We are required to use a "best fit" in assessing 0% under the TEMSKI table. The assessment is either 0 or 1% noting the latter was assessed by other doctors.
2. It is likely that the colour contrast of the scar has faded over time forming our view that the colour variation of the scar to the surrounding has probably reduced over time.
3. We are not satisfied that the claimant suffered cervical spine injury. Our reasons for this conclusion are consistent with those expressed by Medical Assessor Gothelf (see at [15] herein). The claimant made immediate complaints of thoracic spine injury, and this required CT scan at the hospital. That is the likely explanation why the cervical spine was scanned noting the radiologist report only referred to thoracic pain.
4. In relation to the assessment of the knee, the Medical Assessors have explained why there is mild cruciate laxity and mild collateral ligament laxity. Mild collateral ligament laxity and mild cruciate ligament laxity are each assessed at 3%.
5. Clause 6.71 of the Guidelines provides:

"If there is more than one injury in the limb, each injury must be separately assessed and the WPIs combined. For example, a fractured tibial plateau and laxity of the medial collateral ligament are separately assessed and their WPI assessed."

1. We have assessed the ligament laxity as separate injuries to the plateau fracture because the laxity of the two ligaments arises independently of the tibial plateau fracture which had healed. The mechanism of the accident could produce distinct injuries to the various structures within the knee. The ongoing laxity, noting that the fracture had healed, suggests that these are different injuries.

1. The medical assessment certificate is revoked as we have found different assessments although the overall result is the same, that is, the impairment is not greater than 10%. The new certificate is attached at the commencement of these Reasons.

charge records refer to reports of pain the left chest, left knee and left heel

[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.

[32] [2021] NSWCA 287 at [40], [41] and [45].

[33] [2022] NSWCA 31 at [11], [21], [64].

[34] [2023] NSWSC 1023 (Mandoukos).

[36] [2021] NSWCA 142 (Skates) at [30] per Basten JA and [44]-[50] per Leeming JA.

[37] [2024] NSWCA 34 at [47]-[48], [53] applying Skates at [44].