Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017

Confirms the certificate issued by Medical Assessor Preston dated 15 March 2025.

1. Brian Davies (the claimant) was involved in a motor accident on 26 October 2018. He was riding a motorbike at about 50kmph when a car pulled out in front of him. His bike hit the car and he flew over the handlebars landing on his right side. He suffered injuries to his right knee, right ankle, left foot, right wrist and lumbar spine.
2. He made a claim for personal injury benefits with Insurance Australia Limited t/as NRMA (the insurer), the third-party insurer of the vehicle that he says caused the accident.
3. A medical dispute arose about whether the degree of the claimant's whole person impairment (WPI) is greater than 10% WPI. Where there is a dispute about the degree of a claimant's WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor for determination.
4. On 15 March 2025, Medical Assessor Sally Preston found the claimant had a WPI of 6% which was not greater than 10%.
5. The claimant lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Preston's medical assessment.
6. On 22 May 2025, a delegate of the President (Ms Brittliff), accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.[2]

1. Medical Assessor Preston was referred the following injuries for assessment:
   • knee - right tibial plateau fracture and cruciate ligament laxity/arthritis of the right knee/peripheral nerve injury/scarring;
   • ankle - torn ligaments right ankle;
   • toes - fracture of the 3rd metatarsal left foot;
   • wrist - soft tissue injury, right wrist, and
   • lumbar spine - soft tissue injury with associated radicular symptoms.
2. The Medical Assessor found the principal injury was to the claimant's knee, a right tibial plateau fracture which required surgery and insertion of hardware. A previous rupture of the right ACL was noted to be due to an injury sustained at a karate tournament in April 2018 which required a full knee reconstruction in June of that year. There was a further incident doing karate in July 2019 which caused instability in the right knee with the previously repaired cruciate ligament.
3. X-rays revealed mild to moderate osteoarthritis in various compartments.
4. There was no peripheral nerve injury found on examination and the distribution of the reported sensory disturbance around the surgical scar was not in a sural nerve distribution.
5. Soft tissue injuries to the right wrist and right ankle were found to be resolved. Similarly, the fracture of the left 3rd metatarsal had healed and resolved. While lumbar spine symptoms were reported in early 2019, the lack of any reference to the back in subsequent medical assessments resulted in the conclusion that the lumbar spine injury was not causally related to the motor accident.
6. The right knee plateau fracture was assessed at 2% WPI under Table 64 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). There was mild to moderate osteoarthritis which was reported on X-ray as being equivalent to a 25% reduction in cartilage interval. Impairment was estimated (by analogy) at 3% WPI under the arthritis provisions in Table 62 of the AMA 4 Guides. Scarring was assessed at 1% WPI. The total combined impairment was therefore 6% WPI.

1. In response to directions issued on 30 May 2025, parties were in agreement that the right ankle injury need not be re-assessed by the Panel. While not re-assessed by the Panel, the Panel re-examination did not reveal any tenderness or impairment of the right ankle in any event.

"In relation to the claimant's arthritis, the claimant notes that the Medical Assessor did not review any radiological imaging (MAC, Paragraph 22, page 10).

The claimant notes that there is no evidence that the x-ray referred to by Medical Assessor Preston was taken in the neutral position.

Furthermore, as per Table 62, an actual measurement - in millimetres - of cartilage interval in the knee. For the measurement to be accurate and referrable to Table 62, it is based on 'standard roentgenograms taken with the patient standing, if possible and 36 inches from the machine, with the beam at the level of and parallel to the joint surface.' (AMA 4 Guides, section 3.2g). Accuracy in terms of measurement of cartilage interval is of considerable relevance. Review of Table 62 indicates that a cartilage interval of 3mm results in a whole person impairment of 3%, while a cartilage interval of 2mm results in 8% whole person impairment."[3]

1. In the experience of the Panel, the relevant Guidelines, particularly the AMA 4 Guides, may refer to an American standard of roentgenograms which may or may not be the Australian standard. As X-rays do not routinely state how the X-ray is taken, the Panel can only rely on the what the X-ray shows by reviewing the film itself, as it is unknown whether it is taken in accordance with the standard required by the AMA 4 Guides.
2. In an attempt to resolve the issue raised by the claimant, the Panel put to the parties the following options:

(a) provide the Panel a copy of the latest X-ray of the right knee (20 January 2021) and any other more recent X-rays, with agreement that the Panel measure the joint space, if possible;

(b) obtain a fresh x-ray of the right knee with the operator providing the X-ray with the above AMA 4 Guides parameters in mind, and providing the film to the Panel;

(c) do nothing, and for the Panel to consider assessment via analogy (if possible) under clause 6.24 of the Guidelines, or

(d) advise of some other way.

1. The Panel advised that should an option other than (b) be chosen, it is unlikely that the Panel can provide an assessment of impairment that is in strict compliance with the relevant Guidelines.
2. The claimant submitted that for arthritis of the knee joint (i.e. the tibiofemoral joint), it would be appropriate for the Panel to attempt to use the X-ray dated 20 January 2021 to measure the joint space. The claimant was willing to provide the relevant X-ray. If the Panel is unable to assess arthritis using this method, the claimant agrees that reasoning by analogy (in accordance with cl 6.24 of the Guidelines) is appropriate.
3. The claimant further emphasised that the assessment of impairment for arthritis should include consideration of both the knee (tibiofemoral joint) and the patellofemoral joint.
4. In contrast to the claimant's position, the insurer submitted that option (a) was not appropriate because it involves measuring joint space using an X-ray that does not comply with the requirements of the AMA 4 Guides. It is submitted that such scans require precision with cartilage intervals of 1mm and thus the position of the patient and the angle and distance of the scan would make a noticeable difference on the measurement.
5. It is further submitted that the claimant already had moderate chondral wear in the medial compartment prior to the motor accident as shown in the MRI scan of 11 April 2018 but that the MRI scan was not taken in a way that met the requirements of the AMA 4 Guides.
6. The insurer's position is therefore that the Panel should provide an assessment via analogy but its use must be two-fold - first, to estimate the claimant's pre-existing impairment and second, the impairment due to the motor accident.
7. The Panel has considered the parties' respective positions on the issue.

1. The claimant's submissions are largely covered above under the heading 'dispute resolution'. The claimant says Medical Assessor Preston should have viewed the actual films of the right knee and undertaken her own measurement of the cartilage interval in the knee joint. In addition, the claimant says there is additional impairment of 2% WPI due to arthritis in the patellofemoral joint pursuant to the footnote under Table 62 of AMA 4 Guides.
2. The claimant further says the medical assessment of the scarring requires consideration of the entirety of the claimant's scarring caused by the accident.

1. The insurer's review submissions essentially reinforce its view that the medical assessment of the knee joint should be done by way of analogy. The insurer says the rationale provided by the Medical Assessor, namely "an assessment of mild-to-moderate knee osteoarthritis reported on x-ray [is] equivalent to a 25% reduction in cartilage interval" is appropriate in circumstances where the condition is not covered in the relevant guidelines.
2. In relation to the scarring, the insurer says the Medical Assessor did in fact consider the entire length of the scar which measured 20cm. It was however, open for the Medical Assessor to describe the scar by reference to the part of the skin that remains abnormal. This was described by the Medical Assessor as a 13cm scar not dissimilar to the proximal 13.5cm described by Dr Bentivoglio as being rugose.
3. The insurer says scars are defined as "cutaneous abnormalities" in the AMA4 Guides (p279).
4. In any event, it is contended that the length of the scar is not an evaluation criterion listed in the TEMSKI (Table 6.18 of the Guidelines).

1. As directed, the parties lodged bundles of the material they relied upon in the review, with the claimant's bundle comprising of pages 1-130 and the insurer's bundle comprising of

pages 1-21. 2. The Panel has read the documentation contained in the bundles. Reference to the relevant documentation is made in the below Panel re-examination report and the Panel's findings.

1. The Panel determined that the claimant be re-examined by Medical Assessors Assem and Moloney at the Commission's medical suites on 12 November 2025. The re-examination report is as follows:

"Pre-Accident Medical History and Relevant Personal Details

Mr Brian Davies is a 59-year-old man, who holds a Bachelor of Engineering, a Master of Management, and a Master of Business Administration. At the time of the motor vehicle accident on 26 October 2018, he was employed full-time as a Technical Project Manager with Collins Aerospace in Lane Cove, NSW, and concurrently served as an officer in the Australian Army Reserve.

After the subject motor vehicle accident, Mr Davies was off work for approximately 14 weeks before returning to full duties. He reported ongoing difficulty travelling between his home in St Ives and Lane Cove and maintaining the long working hours required by his position. Despite a supportive employer, he eventually resigned in October 2021, citing difficulty coping with fatigue and knee discomfort. He is currently working with Informatech, subcontracted to the Department of Defence, in a role allowing greater flexibility and partial work-from-home arrangements.

In April 2018, Mr Davies sustained a significant right knee injury during a karate tournament. An MRI on 11 April 2018 demonstrated a complete rupture of the anterior cruciate ligament (ACL), bone contusions, a torn medial meniscus, and a probable peripheral detachment of the lateral meniscus.

X-rays on 23 April 2018 showed moderate right knee effusion, and a CT scan on 3 May 2018 revealed a small effusion and a Baker's cyst.

He underwent ACL reconstruction in June 2018, performed by Dr Eli Olschewski, during which a chondral defect of the medial femoral condyle was noted and chondroplasty was undertaken. Post-operatively, he reports achieving approximately 85% of his pre-injury function.

He returned to the gym for strengthening exercises and resumed short distance running a couple of weeks before the subject motor vehicle accident.

On 26 October 2018, at approximately 8:00 am, Mr Davies was riding his motorcycle westbound along Stanhope Road, Killara. After accelerating from a red light to approximately 40 km/h, he moved to overtake a vehicle stationary in his lane waiting to turn right into Culworth Avenue. At that time, an oncoming vehicle turned right across his path, colliding directly with his right leg.

The impact threw him over the handlebars, and he landed heavily on his right side in the gutter. He was wearing a helmet, gloves, leather jacket, jeans, and boots. His helmet sustained significant frontal damage. He was unable to straighten his right leg immediately after the crash. An ambulance attended the scene and transported him to Royal North Shore Hospital. He recalls that because of morphine, the only symptom he was aware of was severe right knee pain.

At Royal North Shore Hospital, Mr Davies underwent open reduction and internal fixation (of a proximal right tibial plateau fracture, performed by Dr Papadimitriou. He was fitted with a knee brace and remained non-weight-bearing. During his hospital admission, he fell after attempting to mobilise because a fracture in his left foot (third metatarsal) had not yet been identified. He was subsequently fitted with a CAM boot on his left foot and discharged home, ambulating with crutches.

Mr Davies commenced physiotherapy with Thomas Gilbert on 18 January 2019. An MRI scan of his right knee on 10 January 2019 showed that the reconstructed ACL graft was intact. MRI on 11 July 2019 reported probable graft integrity maintained. He returned to full-time desk duties but was unable to resume high-impact physical activity.

In July 2019, while undergoing a karate belt assessment, he experienced a "loud click" and a sensation that the knee might "give way." A letter by Dr Olschewski (19 September 2019) documented ongoing instability and clicking, and suspicion of ACL re-rupture. A CT arthrogram 3 October 2019 showed a superficial slit of ACL graft.

Dr Quang Dao (26 November 2019) recommended a two-stage revision ACL reconstruction due to graft failure.

On 23 December 2019, Dr Olschewski performed, removal of tibial hardware, tibial osteotomy, arthroscopy with partial medial meniscectomy and chondroplasty, tunnel bone grafting, and anterolateral ligament reconstruction. On 29 June 2020, Dr Olschewski completed an ACL reconstruction using a quadriceps tendon autograft.

Post-operatively, he resumed progressive strengthening and balance training. He did not return to karate after the third operation, reporting persistent instability and pain. X-ray on 20 January 2021 reported worsening degenerative changes.

After resuming light physical activity, Mr Davies sustained a minor rib fracture during an Army Reserve fitness assessment when he fell onto a log. This injury healed without complication.

Mr Davies reports persistent right knee pain and instability, fluctuating in intensity. His symptoms are worse after standing or walking for long periods. He reports several episodes of his right leg giving way, leading to minor falls, most recently about two years ago. He occasionally uses a walking stick for support on long walks but generally manages without it. He had intermittent lower back discomfort but there was no radiation to the lower extremity.

He no longer runs and completes the Army Reserve fitness test using the over-40s protocol (5 km walk, push-ups, and sit-ups). He continues to experience difficulty with high-impact exercise and cannot return to karate.

He denies ongoing wrist symptoms. He notes numbness along the anterior upper shin, immediately below the surgical scar, consistent with cutaneous sensory loss from prior surgery.

Mr Davies currently manages pain with Mersynofen (ibuprofen and paracetamol) as required.

Mr Davies was 182 cm tall and weighed 82 kgs. He attended the examination in a cooperative manner. Gait was steady though he walked with a slight limp on the right.

He was able to walk on heels and toes without assistance. He could squat to three-quarters of the normal range before experiencing tightness around the right knee. Balance was maintained.

The lumbar spine displayed three-quarters of normal range of movement in flexion, extension, lateral flexion, and rotation. Movements were symmetrical. There was no guarding or spasm.

Straight-leg raising was achieved to 80 degrees bilaterally, limited only by hamstring tightness. There was no sciatic stretch pain. Knee and ankle jerks were brisk and symmetrical.

Range of motion of the left ankle was normal in plantar flexion, dorsiflexion, inversion, and eversion. There was normal power throughout, and foot movements (including toe flexion and extension) were full and pain-free.

Range of motion of the right ankle showed plantar flexion to 30 degrees, with normal dorsiflexion, inversion**,** and eversion. There was no swelling, deformity, or tenderness of the ankle.

Examination of the right knee revealed a healed longitudinal scar anteriorly, measuring approximately 10 cm in length, with slight erythema. There was an area of sensory loss below the scar, affecting the anterior aspect of the upper shin from just below the patellar extending approximately one-third of the way down the tibia. He expressed some concern about its appearance and avoids wearing shorts. Minor trophic skin changes were noted without any contour defect. The scar was non-adherent and non-tender.

There was no effusion or deformity of the knee. At the time of examination, there was no laxity of the anterior cruciate ligament, and the collateral ligaments were intact. No patellofemoral crepitus was detected. The knee was mildly tender anteriorly on deep palpation only.

Muscle bulk and tone of both thighs and calves were symmetrical. Leg strength was normal.

There was full range of motion of both wrists with no tenderness, swelling, or crepitus. Grip strength was normal and symmetrical."

1. Section 7.21 of the Motor Accident Injuries Act 2017 (MAI Act) provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address by where they are silent on an issue, the AMA 4 Guides should be followed.
3. Permanent impairment is assessed in accordance with Part six of the Guidelines.

1. It is necessary for the Panel to consider whether the accident caused or contributed to the claimant's physical injuries. This would include whether the taking of pain relief medication caused or contributed to the claimant's upper and lower gastrointestinal tract dysfunction.
2. The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines.
3. The provisions state:

"6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (the Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following;

1. the alleged factor could have caused or contributed to the worsening of the impairment, which is a medical determination, and
2. the alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination

This, therefore, involves a medical decision and a non-medical informed judgement.

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

1. The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
2. The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[5]
3. The Panel refers to the above re-examination report of Medical Assessors Assem and Moloney. The Panel reconvened on 20 November 2025 and discussed the

re-examination report findings before collectively making the below determinations.

1. Mr Davies is a 59-year-old man who underwent a right anterior cruciate ligament reconstruction in June 2018 following a karate injury. He reports that two weeks prior to the motor vehicle accident, he returned to running and was functioning at approximately 85-90% of his pre-injury capacity.
2. In the subject accident of 26 October 2018, Mr Davies sustained a right open tibial plateau fracture with associated soft-tissue injury to the right knee in a motorcycle collision, necessitating open reduction and internal fixation.
3. He initially progressed satisfactorily following surgery. MRI scans on 10 January 2019 and

11 July 2019 demonstrated that the reconstructed ACL graft remained intact and there was no evidence of acute re-rupture at those stages. 4. In July 2019, while undertaking a karate belt assessment, Mr Davies experienced a "loud click" and a sensation that his knee might "give way." In a letter dated 19 September 2019, Dr Olschewski documented ongoing instability and clicking, raising suspicion of ACL graft failure. A CT arthrogram on 3 October 2019 confirmed a superficial slit of the ACL graft, and on 26 November 2019, Dr Quang Dao recommended a two-stage revision ACL reconstruction. 5. Stage 1 surgery was performed on 23 December 2019 by Dr Olschewski, involving removal of tibial hardware, tibial osteotomy, arthroscopy with partial medial meniscectomy and chondroplasty, tunnel bone grafting, and anterolateral ligament reconstruction. Stage 2 surgery on 29 June 2020 comprised ACL reconstruction using a quadriceps tendon autograft. 6. Following these procedures, Mr Davies participated in progressive strengthening and rehabilitation. He did not return to karate, citing persistent pain and subjective instability.

An X-ray on 20 January 2021 demonstrated progressive degenerative change, most pronounced in the medial tibiofemoral compartment. 7. The Panel concluded that Mr Davies sustained injuries to his right knee occurring both before and after the subject motor accident. These injuries occurred independently as a result of karate injuries. The Panel was satisfied that the subject accident caused a right open tibial plateau fracture with associated soft-tissue injury to the right knee. There is also scarring to the right knee following open reduction and internal fixation of the proximal fibula. 8. Having been flung off his motorcycle it was more likely than not that Mr Davies sustained other bodily injuries, including those to his left foot (3rd metatarsal fracture) and right wrist (soft tissue injury) as mentioned in his Application for Personal Injury Benefits dated

20 November 2018. The Panel deduced that these injuries were not mentioned in the earlier documentation because of the severity of the right knee injury. These injuries are now healed and resolved. 9. The Panel was not satisfied of an accident-related injury to the lumbar spine, as the only mention of a lumbar spine injury was in a medico-legal report of Dr Bodel in June 2022, some four years after the subject motor accident.

1. The following injury was caused by the motor accident:
   • right knee - right tibial plateau fracture, arthritis and scarring.
2. The following injuries have resolved:
   • right ankle - soft tissue injury;
   • left foot fracture 3rd metatarsal, and
   • right wrist - soft tissue injury.
3. The following injury was not caused by the motor accident:
   • lumbar spine - soft tissue injury with associated radicular symptoms.

1. Assessment of impairment on the 20 January 2021 X-ray must be interpreted cautiously, as the degenerative findings reflect the combined effects of injuries both before and after the accident. Ideally, radiographs taken before and after the accident under identical AMA4-specified technical conditions should be compared to accurately apportion causation of impairment.
2. The Panel considered that the radiographs provided offered a more direct and objective basis for evaluation of the claimant's impairment than assessment by analogy. It was noted that the parties did not suggest how the assessment should be done via analogy. Although the images did not strictly comply with the technical requirements of AMA4, they demonstrated measurable cartilage interval loss and were therefore regarded as a more accurate reflection of the underlying structural changes and the resulting degree of permanent impairment.
3. The X-ray shows a slight loss of the medial tibiofemoral cartilage interval to approximately

3 mm, with preservation of the patellofemoral joint. While there is radiographic evidence of early post-traumatic osteoarthritis with subchondral sclerosis, impairment under AMA4 Table 62 (p.83) is determined by the measured cartilage interval. 4. According to Table 62 (p.83) AMA4, a 3mm tibiofemoral cartilage interval corresponds to an 3% WPI (7% lower-extremity impairment). Although this represents the cumulative effect of 2018 karate injury, motor vehicle accident and subsequent karate injury requiring a two-stage reconstruction, the fractured tibial plateau had materially contributed to progression of the arthritis and there was no imaging prior to the accident that showed any loss of cartilage interval. In addition, he has 2% WPI for an undisplaced tibial plateau fracture (AMA 4 Guides, Table 64, Page 3-85) and 1% WPI for scarring (TEMSKI - 'best fit principle'). 5. Although there was localised cutaneous sensory loss from prior surgery involving his upper shin, it did not satisfy a specific dermatomal distribution.

1. The total combined impairment for the right knee injury is 6% WPI.
2. The Panel concurs with Medical Assessor Preston's findings that Mr Davies' lumbar spine symptoms were not causally related to the motor vehicle accident, and that his injuries to the right wrist, right ankle and left foot had fully resolved without resulting in any permanent impairment.
3. Although the Panel disagreed with Medical Assessor Preston's assessment of the right knee arthritis using analogy, following the Panel's review of the 20 January 2021 X-ray, the result of 3% WPI for the arthritic component is the same.
4. The Panel is of the view the certificate of Medical Assessor Preston dated 15 March 2025 should be confirmed.

[3] At paragraphs 14 and 18 of the claimant's review application submissions dated 22 April 2025.