MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident when she was knocked off of her scooter by a car coming from her right side; dispute arose as to whole person impairment (WPI); Medical Assessor (MA) determined the claimant's WPI as a result of the physical injuries sustained in the accident was 8%; claimant made an application under section 7.26 of the Act for referral of assessment to the Medical Review Panel; Held - Review Panel conducted its own examination and found that WPI as a result of injuries sustained in the accident totalled 16%; certificate of MA was revoked.

1. The Medical Review Panel revokes the certificate of Medical Assessor Todd Gothelf of

15 September 2024 and substitutes the determination that as a result of the following physical injuries caused by the accident, Ms McCulloch sustained a permanent degree of 16% whole person impairment: * Right proximal tibial fracture now healed with varus deformity of the right leg of

10 degrees with 2cm of shortening of the right leg; * Rib fractures on the right and fifth ribs now settled; * Right first toe fracture now settled; * Fracture of left patella on bone scan, and * Scarring as described.

1. On 1 September 2022, the claimant, Julie McCulloch (Ms McCulloch), was involved in a motor vehicle accident when she riding as a passenger on a motor scooter when she was hit by a car coming from the right side and knocked unconscious, awaking on the street (the accident).
2. She alleged that she sustained physical and psychological injury as a result of the accident.
3. On 6 September 2022, Ms McCulloch lodged a Personal Injury Claim form in respect of the accident. Insurance Australia Group Limited t/as NRMA Insurance (the insurer) was the relevant third-party insurer.
4. The claim is governed by the provisions of the Motor Accidents Injuries Act 2017 (the Act).
5. A medical dispute about the degree of Ms McCulloch's whole person impairment (WPI) in respect of the alleged physical injuries has arisen in connection with her claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the Act.
6. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the Act.
7. The dispute was referred to the Personal Injury Commission (Commission) which then assigned it to Medical Assessor Todd Gothelf for assessment. Medical Assessor Gothelf then assessed Ms McCulloch on 6 September 2024 and certified on 15 September 2024 that the following physical injuries caused by the accident had given rise to a permanent impairment of 8%:
   • Right leg/knee- Tibial fracture, wound scarring, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes.

1. Ms McCulloch sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
2. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A "new decision maker" is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the Medical Assessment which is the subject of the Review was made on or after 1 March 2021, the new review provisions apply.
3. On 16 December 2024, a delegate of the President of the Commission determined there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Panel.
4. The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President's delegate has convened this Panel to conduct the review of the Medical Assessment.
5. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
6. 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. The review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
7. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
8. On 21 March 2025, the Panel informed the parties that it considered a re-examination of Ms McCulloch was required. Arrangements were made for her to be re-examined by Medical Assessor Drew Dixon on behalf of the Panel at the Commission's medical suites on

1. Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
2. Ms McCulloch's claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
3. However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

1. Section 7.21 of the 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. Permanent impairment is assessed in accordance with Part 6 of the Guidelines.
3. Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
4. Clause 6.6 of the Guidelines notes:

"6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

'Causation means that a physical, chemical or biologic 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 worsening of the impairment, which is a medical determination.
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."

"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. Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
2. The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
3. Clause 6.32 of the Guidelines states:

"The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment."

1. Medical Assessor Todd Gothelf examined Ms McCulloch on 6 September 2024 and issued his certificate on 15 September 2024. He had the documents attached to the Application, but no further documents.
2. At [2] of his certificate, Medical Assessor Gothelf set out the injuries that were referred for assessment to him:
   • Cervical Spine - orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy.
   • Thoracic Spine - orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy
   • Lumbar Spine - orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy.
   • Right shoulder - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy.
   • Left shoulder - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy.
   • Chest - fractures of the right fourth and fifth ribs, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes.
   • Right leg/knee - tibial fracture, wound, scarring, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes and radiculopathy.
   • Right leg - tibial fracture, wound, scarring, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes and radiculopathy
   • Left leg - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes and radiculopathy.
3. Medical Assessor Gothelf then set out a summary of the submissions made by the parties at [3]-[4].
4. The Medical Assessor took a pre-accident medical history at [8], noting that Ms McCulloch was 53-years-old, had a history of type 1 diabetes requiring insulin, diagnoses of pancreatitis, depression and anxiety. Ms McCulloch denied any problems with her back, shoulders, and legs and feet prior to the accident. Since the accident Ms McCulloch stated that the physical aspects are better and she is capable of daily activities.
5. At [9], the Medical Assessor took a history of the accident noting that on 1 September 2022, Ms McCulloch was a passenger on a motor scooter riding down Bondi Road when she was impacted by a car coming from the right side. Ms McCulloch stated she lost consciousness and awoke lying on the street.
6. Medical Assessor Gothelf recorded a history of symptoms and treatment following the accident at [10], noting that she was transported by ambulance to St Vincent's Hospital. Injuries included a proximal tibial fracture which was treated in a long leg cast. Ms McCulloch was followed up in the fracture clinic and was non-weight bearing for eight weeks.
7. After about eight weeks, she was allowed to walk and went to physiotherapy. There were buckle fractures of the right fourth and fifth ribs which were managed conservatively and subsequently healed. Ms McCulloch noted a fracture to her great toe. She underwent physiotherapy and exercise physiology treatments.
8. Ms McCulloch stated she never had pain in her neck and never had treatments for her neck. She continued that she never had pain in her thoracic spine and never had treatments for her thoracic spine. She then stated she never had pain in her lumbar spine and never had treatments for her lumbar spine. As to the right shoulder, she stated she never had pain or injury and never had treatments. As to the left shoulder, she stated she never had pain or injury nor treatments. She stated she never had pain or injury to her left leg or left foot and never had treatments for her left leg or left foot.
9. As to current symptoms and treatment, the Medical Assessor recorded at [12] that Ms McCulloch rated the right knee or leg pain as a zero on a scale of zero (no pain) to ten (the worst pain imaginable) and the right knee gets worse when kneeling on it or doing yoga which causes pain. She indicated that there was no more pain, specifically in the chest and right great toe, or in any other areas of the body. At [13], Medical Assessor Gothelf recorded that Ms McCulloch was no longer getting any treatments.
10. The Medical Assessor undertook a clinical examination at [14]-[20] which is reproduced by the Panel:

Passive range of motion formed part of the clinical examination to ascertain clinical status of the joint. For the purposes of impairment calculation, only active movement (i.e. performed under the voluntary control of the examinee, without physical input by the examiner) was measured and recorded below. Determinations were made in accordance with the patient's apparent full effort and cooperation. Ms McCulloch is a 53-year-old female right hand dominant whose height was 169 cm and weight was 74 kg (BMI 25.9- Overweight). She was observed to sit and stand and was in no apparent distress.

There were scars on the right knee which were managed for months to heal. The scars had colour contrast, trophic changes, were depressed, widened, with some adherence. The scars were visible with some clothing, she was conscious of the scars."

The cervical posture was normal. There was no reported tenderness to palpation of the neck spinous processes or paraspinal muscles. There was no visible or palpable deformity in the neck region. There was no observed muscle spasm or guarding. Cervical movement was a fraction of the normal range of motion of full cervical extension, full flexion, full right rotation, full left rotation, full right lateral flexion, and full left lateral flexion. There was no cervical asymmetrical loss of motion."

There was a fraction of normal active thoracic motion of full flexion, full extension, full left rotation and full right rotation. There was normal alignment, curvature, and pelvic symmetry. There was no reported tenderness to palpation along the spine or paraspinal muscles. There was no observed muscle guarding or spasm."

There was a fraction of normal active lumbar motion of full flexion, full extension, full left lateral flexion and full right lateral flexion. There was no asymmetrical loss of motion. There was normal alignment, curvature, and pelvic symmetry. There was no reported tenderness to palpation along the spine or paraspinal muscles. There was no observed muscle guarding or spasm."

There was a full range of movement of shoulders, elbows of both the upper limbs in all dimensions without crepitus, muscular spasm or tenderness. Power, sensation, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal and equal. The right wrist was in a splint from a recent injury. There was no wasting or swelling of the upper limbs, and the circumferential measurements were as follows:

Active range of motion was measured with a goniometer:

There was a normal gait, and no difficulty with walking on toes or heels unaided.

Power was 5/5 throughout all muscle groups. Muscle tone was normal. Sensation was intact to light touch and pin prick in all dermatomal distributions. Reflexes were normal and symmetrical in the knee and ankle. Babinski test caused down-going toes. Range of motion was normal in hips and ankles. Straight leg raise testing was performed both lying down and in the sitting position. There were no reported symptoms with straight leg raise in lying down to 70 degrees or in the sitting position.

The circumferences of the lower limbs were as follows:

Active range of motion was measured with a goniometer:

The right great toe examination was normal. The right knee had some slight crepitus in the knee to movement, the knee was stable otherwise.

The history is consistent with the physical examination findings and is consistent with the documentation provided. The diagnosis of injuries is consistent with the mechanism of injury and is consistent with the current status of the condition."

1. At [21]-[22], the Medical Assessor sets out the documentation and medical imaging upon which he relied during his examination of Ms McCulloch. This is summarised by the Panel under the heading 'Evidence before the Review Panel'.
2. Medical Assessor Gothelf provided his diagnosis and reasons at [23]. He diagnosed the following injuries:
   • Right knee strain, tibial plateau fracture. A CT of the right knee 1 September 2022 indicated a Schatzker type VI fracture of the proximal tibia with posteromedial displacement of the tibial shaft and bicondylar split, with an articular split of less than 2mm. Treatment was conservative and non-weight bearing initially. The fracture healed. Ms McCulloch reported discomfort with certain activities such as yoga. The physical examination revealed a stable knee with good alignment.
   • Right fourth and fifth rib fractures. A CT of the chest 1 September 2022 revealed a right fourth and fifth rib fractures. Mr McCulloch reported that the injuries resolved with no more pain.
   • Right great toe fracture. There was mentioned of a right great toe fracture. Treatment was conservative and the injury has healed and resolved with no residual pain and a normal physical examination.
   • Right knee scarring. Scars were present over the right knee. The documentation noted that the wounds required change of dressing. The knee had residual noticeable scarring.
3. There was no evidence of injury to the cervical spine, thoracic spine, lumbar spine, right shoulder, left shoulder, left leg, or left foot. Ms McCulloch was asked about these specific body parts and she mentioned that there was no experience of pain in these body parts at the time of the accident, no treatment provided, and no ongoing problems in these body parts.
4. The Medical Assessor then set out his causation and reasons at [24]. He opined that there was clear evidence of fractures of the right tibial plateau on X-rays and CT scan at the time of the accident. The documentation indicated that the fracture was treated conservatively. Ms McCulloch noted there was hesitation with any surgery due to the wounds over the right knee.
5. There was clear evidence of right rib fractures on the CT scan of the chest after the accident.
6. There was mention of a great toe fracture. Ms McCulloch noted pain around the right great toe which eventually resolved with no treatments. Medical Assessor Gothelf did not see evidence of the fracture on investigation reports. The assessment confirmed healing and resolution of the injury with a normal examination of the right great toe and full range of motion.
7. There was no evidence to support injuries to the cervical spine, thoracic spine, lumbar spine, right shoulder, left shoulder, left leg, or left foot. Ms McCulloch was asked about these specific body parts and she mentioned that there was no experience of pain in these body parts at the time of the accident, no treatment provided, and no ongoing problems in these body parts. The documentation was consistent with the history of no injuries to these body parts, as there was no evidence of acute injuries or treatments.
8. The Medical Assessor noted at [25] that the following injuries referred for assessment by the commission were caused by the accident:
   • Right leg/knee- tibial fracture, wound scarring, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes.
   • Chest - fractures of the right fourth and fifth ribs, soft tissue injury, orthopaedic injury.
   • Right foot - right first toe fracture, soft tissue injury, orthopaedic injury.
9. He then noted at [26] that the following referred injuries were not caused by the accident and therefore WPI was not assessable:
   • Injury to cervical spine - orthopaedic Injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy.
   • Injury to thoracic spine - orthopaedic Injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy.
   • Injury to lumbar spine - orthopaedic Injury, aggravation and acceleration of degenerative changes, pain and restricted movement and radiculopathy.
   • Right shoulder - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement.
   • Left shoulder - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement.
   • Left leg - soft tissue injury, orthopaedic injury. aggravation and acceleration of degenerative changes and radiculopathy.
   • Left foot - soft tissue injury, orthopaedic injury. aggravation and acceleration of degenerative changes.
10. At [27], the Medical Assessor noted the injuries to the right foot and chest had resolved.
11. The Medical Assessor then set out his determinations as to permanent impairment which is reproduced by the Panel:

The right tibial plateau fracture was comminuted, Shatzker VI injury with slight displacement as indicated in the CT scan. Even though the report mentioned non-displaced, I consider that a stepoff of the fracture is considered displaced for the purposes of impairment. Table 64 p 85 AMA4 is used. A displaced fracture at the most mild form is a 12% LEI or 5% WPI which I felt was applicable in this instance. The right great toe had a normal range of motion and therefore did not result in any rateable impairment. The final impairment for the right lower extremity is 5% WPI.

There was no evidence of a pre-existing condition and therefore no deductions applied.

As per section 6.23 p 88 MA Guides, Certain injuries may not result in an assessable impairment covered by these Guidelines and the AMA4 Guides. For example, uncomplicated healed sternal and rib fractures do not result in any assessable impairment. There was therefore no impairment for the rib fractures.

The skin was not referred, but was injured at the time of the subject accident and left a scar. Table 6.18 p 132 MA Guide is used. Ms McCulloch was conscious of the scars, there was a noticeable colour contrast with surrounding skin, the scars were easily locatable, there were trophic changed to touch, The anatomic location was usually visible with usual clothing, a contour defect was easily visible, there was a minor limitation of performance of ADLs, as this would affect kneeling, no treatment was required, there was some adherence. This photo was taken at the assessment. I consider that a 3% WPI applies.

There was no evidence of a pre-existing scarring and no deductions were made.

Right LE 5% Skin 3% Combining 5% and 3% yields 8% WPI. The Final Whole Person Impairment is 8% WPI".

1. Medical Assessor Gothelf then set out his permanent impairment table at [28], noting that there was no evidence of any pre-existing or subsequent impairment, and there was no apportionment nor effects of treatment:

AMA4 Guides/ Guidelines References (chapter/ page/table)

1. The Medical Assessor concluded at [32] that as a result of assessable physical injuries which were caused by the accident, Ms McCulloch sustained a permanent WPI degree of 8%.

Diagnostic imaging, X-rays, CT Scans, and MRI Scans

1. All diagnostic/medical imaging reports are summarised in the Medical Review Panel's

1. "c/t 51yof post motorbike accident. O/A pt on ground, notable injuries to face, bilateral legs and elbows/wrists. Passenger on motorbike, T-boned by car. Thrown from bike approx. 1 metre. Pt had LOC - unsure of duration, nil recollection of event. O/E pt A+O, A: minor amounts of blood in mouth. B: NAD, lungs clear, nil resp distress, nil SOB/increased WOB, C: well perfused, normocardic, initially hypotensive however, normotensive post fluid. 12 lead showing NSR. Denies chest pain. D: initially GCS 14, GCS 15 with AOs, afebrile. Pt denies C spine pain, nil back pain, nil abdo pain/distension. Minor grazes to knees, elbows, wrists, R thigh and L lower quadrant of abdomen. Significant swelling to R knee with obvious bruising. Pt cannulated with 20G, spinal immobilisation with soft collar. 4mg ondansetron IV, 500ml hartmanns, 2mg morphine IV with good effect."

Discharge Summary from St Vincent's Hospital dated 1 September 2022

1. "Diagnosis: Right Tibial Fracture requiring closed reduction in OT"
2. "Procedures and Interventions: Closed Reduction of Right Tibial Shaft Fracture and Right Big Toe and Application Long Leg Fibreglass Cast Right Side"
3. "Issues: # Tibial Fractures- Motorbike vs car accident- Sustained proximal tibial fracture with articular extension- After days to weeks of monitoring swelling and with serial XR's- Decision to perform closed reduction of right tibial shaft and application of long leg cast"
4. "Rib Fractures- Buckle fractures of the right fourth and fifth ribs - Conservative management"

Application for Personal Injury Benefits Claim Form dated 6 September 2022

1. On Ms McCulloch's Claim Form, she described the accident as follows:

"On Thursday 1st September 2022 at approximately 5:00pm I was a passenger on a motor scooter being driven by my husband ... down Bondi Road, Bondi. We were approaching an intersection with Penkivil Street and two cars were stationary in the opposite lane waiting to turn right. As we got to the intersection, the first car moved forward but went straight on, and almost immediately the second car, a black BMW, turned into our path causing a head on collision with our scooter resulting in both my husband and I being knocked off and onto the road. The BMW stopped and the driver jumped out and said, "I'm so sorry, I did not see you at all, it's my fault".

1. She then described the injuries she sustained as a result of the accident: "Lacerations to face, hands and legs. Broken right leg, injuries to both feet and knees."

1. Crash summary details - "About 4:30pm, Thursday 1st September 2022, a black BMW was waiting to turn right into Penkivil St, Bondi from Bondi Road, Bondi. While waiting, the traffic light colour facing the black BMW changed to amber. An unknown vehicle was travelling easterly along Bondi Road through the intersection. As that vehicle passed in lane 2 of 2, the black BMW began to turn into Penkivil St. At this point, the front of the black BMW collided with the offside of a white Honda scooter which was travelling easterly in lane 1 of 2."

IME Report of Dr Mitchell, Occupational Physician, dated 12 December 2023

1. Dr Mitchell indicated that Ms McCulloch reported a right knee injury with comminuted fracture of the proximal tibia width intraarticular extension and injury to the right great toe and right rib fractures.
2. Diagnosis - "Ms McCulloch reports ongoing pain in the right knee following the subject injury of 1 September 2022 in which she sustained a comminuted fracture of the proximal tibia with extension to the articular surface at the tibial spines and lateral aspect of the tibial plateau. Other previously reported symptoms to the right great toe and rib fractures have resolved."
3. Treatment and Outcomes - "Initial treatment was conservative with various medications and daily wound dressings to her right knee and left heel, on an inpatient and then outpatient basis; Dental review and repair of cracked teeth; Ms McCulloch was referred for counselling and for psychiatric treatment; She occasionally uses Tramadol for pain and continues to take the psychotropic medications of Lexapro, Mirtazapine and Seroquel; She said that she expected to undertake further physiotherapy and psychological counselling shortly; WPI 2%"

Combined Certificate of Medical Assessor Curtin dated 23 October 2024

1. "The following injuries caused by the motor accident give rise to a permanent impairment which is not greater than 10% • Right leg/knee- Tibial fracture, wound scarring, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes. • Dental Injury - broken teeth"
2. Reasons - "This is to certify that Julie McCulloch was assessed by the following independent Medical Assessors appointed by the Medical List (Motor Accidents Division) to assess permanent impairment disputes. Details of the assessments and full reasons are given in the following certificates:"
3. Assessment 1 Certificate of Medical Assessor Todd Gothelf dated 15 September 2024 - "The permanent impairment in relation to the following injuries is 8 %. • Right leg/knee- Tibial fracture, wound scarring, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes. AND The following injuries caused by the motor accident have resolved: • Right foot- Right first toe fracture, soft tissue injury, orthopaedic injury. • Chest, Fractures of the right fourth and fifth ribs, soft tissue injury, orthopaedic injury."
4. Assessment 2 Certificate of Medical Assessor Paul Nichols dated 6 September 2024 - "The permanent impairment in relation to the following injuries is 0 %. • Dental Injury - broken teeth"
5. Assessment 3 Certificate of Medical Assessor Geoffrey (Paul) Curtin dated 20 October 2024 - "The following injuries caused by the motor accident have resolved: • face-lacerations and abrasions Using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, the combined permanent impairment is 8 %."

Report of Dr New, Orthopaedic Surgeon, dated 28 April 2025

1. Causation - "The initial injuries that have been recorded are as a result of the motor scooter accident"
2. Prognosis - "The long-term prognosis for her right knee is poor."
3. "She has reached the definition of maximum medical improvement."

1. The Panel summarises the submissions of the insurer dated 31 March 2025 by reference to paragraph numbers:

[1] Ms McCulloch alleges Medical Assessor Gothelf erred in finding that she was under the WPI threshold and relies on two grounds (failure to engage with evidence; failure to give adequate reasons). The insurer disagrees with this submission.

Failure to engage with the evidence before him - Left Knee Injury

[2]-[3] Ms McCulloch submits the Medical Assessor erred by only assessing the right tibial plateau fracture and refers to the whole-body bone scan dated 10/10/2022. She further submits the Medical Assessor should also have assessed a left patella intra-articular fracture referenced in the bone scan.

[4]-[5] The insurer refers to page 7 of Medical Assessor Gothelf's certificate. Ms McCulloch stated she "never had pain or injury to her left leg or left foot" and never had treatment. The insurer refers to the injuries list, which merely described a left leg soft tissue/orthopaedic injury and degenerative changes.

[6]-[7] The insurer submits Ms McCulloch herself stated she had no left-leg pain or injury, undertook no treatment, and had no issues in this region. It notes that no left patella fracture was ever submitted as an injury to be assessed.

[8]-[9] The insurer submits there is no contemporaneous medical evidence linking the scan finding to the accident, given the absence of symptoms or treatment. The insurer submits the Medical Assessor did not err in finding the left leg was not injured in the accident, consistent with Ms McCulloch's statements and the medical evidence.

Right Knee Injury - Worsening of displaced fracture

[10] Ms McCulloch submits the Medical Assessor erred by not explaining his reasoning for assigning 5% WPI.

[11] The insurer refers to page 16 of the certificate where the Medical Assessor explains that a step-off constitutes a displaced fracture and that the mild form attracts 5% WPI.

[12]-[13] The insurer refers to the Guidelines cl 6.40 regarding the Medical Assessor's obligation to use clinical judgement and modify impairment estimates with reasons. The insurer submits the Medical Assessor fulfilled his Guideline obligations and explained his approach.

[14]-[16] Ms McCulloch submits a "moderate" finding and 10% WPI are more appropriate. The insurer refers to AMA4 Table 64: "mild" = 5-9 degrees (5% WPI); "moderate" = 10-19 degrees (10% WPI) and submits Ms McCulloch has provided no medical evidence indicating a 10-19° displacement angle to justify 10% WPI.

[17]-[18] Ms McCulloch submits the Medical Assessor should have assigned impairment for malalignment of the tibial shaft fracture. The insurer submits the Medical Assessor appropriately conducted the assessment with proper clinical judgement and complied with the Guidelines.

[19]-[20] The insurer submits the Medical Assessor has not erred materially and that the assessment was conducted in accordance with the MAI Act and Guidelines.

[21] The insurer submits Ms McCulloch has not identified any material error nor provided sufficient basis for the Proper Officer to suspect material incorrectness under s 7.26(2).

[22]-[23] The insurer submits there is no basis for Review Panel referral and that Ms McCulloch's application for review should be dismissed.

1. The Panel summarises the submissions of Ms McCulloch dated 19 November 2024:

[1] Ms McCulloch submits is a 53-year-old female who sustained injuries in a motor vehicle accident on 1 September 2022 ("the accident"). Her injuries were referred to the Personal Injury Commission on 5 March 2024 for assessment of whole person impairment ("WPI").

[2] Her physical injuries were assessed by:

• Medical Assessor Paul Nichols on 6 September 2024 - 0% WPI;
• Medical Assessor Todd Gothelf on 6 September 2024 - 8% WPI;
• Medical Assessor Geoffrey (Paul) Curtin on 18 October 2024 - 0% WPI.

[3] The combined certificate of Medical Assessor Curtin dated 23 October 2024 certified that the physical injuries caused by the accident give rise to 8% WPI.

[4] Ms McCulloch submits that she seeks review of the combined certificate under s 7.26(4) of the Act, specifically by way of review of the single medical assessment certificate of Medical Assessor Gothelf. She further submits that there is reasonable cause to suspect the assessment was incorrect in a material respect.

[5] Ms McCulloch submits that the President would be satisfied that there is reasonable cause to suspect material incorrectness of Medical Assessor Gothelf for the following reasons:

[6] Failure to engage with the evidence before him and Failure to provide adequate reasons as required by the Guidelines

[7] Ms McCulloch submits that the Medical Assessor erred by assessing only the displaced right tibial plateau fracture. At pages 12-13 of his reasons, the Medical Assessor records a small mildly displaced intra-articular fracture of the left patella with delayed/non-union.

[8] She continues that at page 15, the Medical Assessor incorrectly states that there was no evidence supporting injuries to the left leg, despite clear evidence of a left patella fracture.

[9] Ms McCulloch submits that the left leg was expressly referred for assessment and that the St Vincent's Hospital notes record ongoing complaints and swelling of the left knee since the accident, noting that failure to assess the left knee constitutes a denial of procedural fairness.

[10] Ms McCulloch submits that proper assessment of the left patella fracture would attract a 17% lower extremity impairment rating under Table 64 (p 88 AMA4), contributing to total WPI.

Right knee injury - worsening of displaced fracture

[11] Ms McCulloch submits that the Assessor erred by failing to explain why only the lowest tier (5% WPI) was applied to the displaced tibial plateau fracture.

[12] The AMA4 Guides provide three tiers of impairment:

• 5% for 5°-9° angulation;
• 10% for 10°-19°;
• +1% per degree for ≥20°.

[13] The Medical Assessor merely stated that the "most mild form" (5% WPI) was applicable, which Ms McCulloch submits lacks adequate reasoning.

[14] Ms McCulloch submits that later imaging showed worsening displacement:

• 7 September 2022 - "mild increase... now moderate";
• 10 October 2022 - "moderately displaced";
• 3 November 2022 - "moderately posteriorly displaced";
• 13 December 2022 - "alignment unchanged";
• 11 January 2023 - "slightly more apparent varus angulation".

[15] Ms McCulloch submits that the Medical Assessor relied predominantly on the initial CT scan and failed to consider subsequent evidence of progression and that consideration of all imaging could have supported classification of the fracture as "moderate", attracting a 10% WPI rating.

[16] She further submits that the reasons provided were insufficient in any event.

[17] Ms McCulloch submits that the nature of the injury required consideration of impairment for malalignment under Table 64 (p 85 AMA4) as the imaging demonstrates malalignment, and that reasons for not assigning a WPI rating should have been given.

[18] Ms McCulloch submits that, absent the above errors, the disputes would have been resolved in her favour and that the President must be satisfied there is reasonable cause to suspect material incorrectness, after which the matter must be referred for reassessment: Meeuwissen v Boden [2010] NSWCA 253. She further submits that accordingly, the matter must be referred for review by a Review Panel under s 7.26 of the Act.

1. Medical Assessor Drew Dixon examined Ms McCulloch on behalf of the Panel at the Commission's Medical Suites on 16 May 2025. His findings are reproduced below:

1. Ms McCulloch was riding on the back of a motor scooter and was t-boned by a car making a right hand turn at 4pm on 1 September 2022 on Bondi Road, Bondi. The car was travelling at approximately 40km/h to 50km/h and she was thrown from the bike. She was wearing a helmet and had transient loss of consciousness. She came to lying on the road. She sustained injuries to her right leg and right great toe and was taken to St Vincent's Hospital.
2. She had fractures to her proximal tibia which were treated in a long leg cast and had follow up at the fracture clinic and was non-weight bearing for two months. She had a saddle injury to her perineum and pelvic floor which has settled and pancreatic contusion and a direct injury to her right knee which became infected. She had injuries to her face, both legs, elbows and wrists. She was subsequently able to weight bear and had physiotherapy treatment.
3. She sustained fractures to the fourth and fifth right ribs, which were managed conservatively and the ribs healed and are now asymptomatic. She did have a fracture to her right great toe which was allowed to heal and is asymptomatic now. There was slight deformity of the nail at the time but it has grown back normally.
4. She was discharged from hospital on 30 September 2022 for follow up by the fracture clinic and the GP at Rose Bay Medical Practice. She had exercise physiology treatment.

1. Ms McCulloch is not working at present. She had previously been a Manager at a health club in 1998 and before that was a fitness instructor at a hotel.

1. Ms McCulloch is married and lives in an apartment. Her husband is overseas working in New York. She has a 23-year-old son who lives at home. They both walk the dog.
2. She reports no difficulty with household chores but does have some difficulty with bathing and showering. She is not driving at present.
3. She is doing some indoor swimming at a club in Bondi but is having difficulty returning to yoga. She reports no difficulty with foot care.

1. Ms McCulloch takes insulin and Metformin for diabetes, Mirtazapine and Lexapro as

anti-depressants and Creon. She is not having psychological counselling at present and has finished physiotherapy. She sees her local doctor as required and is not having specialist review for her orthopaedic injuries.

1. Ms McCulloch has a past history of an anxiety disorder and depression and haemorrhoidal bleeding in November 2020 and pancreatitis was diagnosed in 2023.
2. She reported she did not have previous pain in her neck, thoracic spine or lumbar spine and had no previous pain or treatment for her right shoulder or left shoulder and no pain or injury to her left leg or left foot.

Details of any injuries sustained since the accident

1. Since the accident, Ms McCulloch recalls a stress fracture in her left leg in the pre-tibial region that occurred while she was walking with some ache but this was managed by rest and the leg settled.

1. Ms McCulloch takes Calciferol as well as folic acid and she takes melatonin. She takes thiamine and Span K.

1. On review at Commission's medical suites on 16 May 2025, Ms McCulloch was 5'6" tall and weighed 58kg.
2. She walked with a normal gait but had a moderate limp on toe walking and moderately severe limp on heel walking. She had genu varum of her right leg of 10 degrees and had audible crepitus on squatting with her right knee.
3. The range of motion of her right knee was 0 degrees through to 130 degrees and there was scarring over the front of her pre- patella region with three large pale areas measuring 4cm x 2cm, 2cm x 1cm and 2cm x 1cm where the skin was very thin and showed marked colour contrast. She reports the scarring is painful if bumped. She has difficulty kneeling on the scar. Her right knee was stable.
4. The range of motion of her right ankle was dorsi flexion 15 degrees, plantar flexion 30 degrees and the subtalar joint showed inversion of 25 degrees and eversion of 10 degrees. There was a full range of motion of her toes of the right foot and there was 1cm of wasting of the right calf measuring 30cm on the right compared with 31cm on the left and there was no wasting of either thigh measuring 43cm, 15cm above the patella bilaterally.
5. The range of motion of her left knee was 0 degrees through to 130 degrees and she had good alignment of the left lower extremity and a full range of motion of the left ankle, hind foot and toes.
6. There was shortening of the right lower extremity measuring 85cm on the right compared with 87cm on the left from the anterior superior iliac spine on each side to the top of the medial malleolus on each side.

1. Ms McCulloch's investigations included an X-ray of the right knee on 1 September 2022 which showed a comminuted fracture of the proximal tibia with extension to the articular surface at the tibial spine and lateral aspect of the tibial plateau. There was normal knee joint alignment and no fracture at the ankle.
2. CT of the right knee on 1 September 2022 showed a Schatzker type IV and type VI fracture of the proximal tibia with posteromedial displacement of the tibial shaft and bi-condylar split components largely undisplaced with a minimal articular step of 2mm at the anterior margin and lateral tibial plateau. The fracture lines extended into the intercondylar region deep to the insertion of the foot plates and the anterior and posterior cruciate ligaments.
3. X-ray on 7 September 2022 of the right femur, knee, tibia and fibula taken in a cast showed a comminuted fracture through the proximal tibia with intra-articular extension and mild increase in the ventral displacement of the distal fracture fragments which was now moderate. There was an intra-articular component with significant step on the articular surface of the tibia. There was a knee joint effusion.
4. X-ray of the right knee on 14 December 2022 showed overall alignment was unchanged. There was residual mild anterior displacement and angulation again demonstrated and a less suprapatellar effusion.
5. X-ray of the right knee on 30 September 2022 showed a distal tibial metaphyseal fracture inferior to the tibial tuberosity with mild posterior translation without shortening but since the previous study, there had been development of periosteal reaction at the fracture margins in keeping with callus formation/bony bridging. There was small suprapatellar effusion.
6. Whole body bone scan including SPECT/CT on 10 October 2022 showed a comminuted moderately displaced intra-articular fracture involving the proximal right tibia with features of delayed union and a mildly displaced intra-articular fracture involving the lateral aspect of the left patella with features of delayed non-union. There were partially healed fractures bilaterally noted in the rib cage. The comminuted fracture of the right tibia has led to the lower limb shortening.
7. X-ray of right knee on 18 October 2022 showed further fracture healing. The alignment was unchanged. There was disuse osteoporosis.
8. X-ray of right knee on 3 November 2022 showed further callus formation present but the fracture line was still visible and moderate impaction was again noted. Alignment of the knee joint was regarded as normal. There was a small suprapatellar recess effusion.
9. X-ray of the right knee on 11 November 2022 showed moderately displaced fracture of the proximal right tibial shaft with moderate impaction of posterior angulation of the distal fragment with further bony healing.
10. X-ray of the right knee on 13 December 2022 showed ongoing fracture healing.
11. X-ray of the right hallux (big toe) on 13 December 2022 showed a dorsal planter oblique and lateral views of the right toe which showed fracture lucency across the base of the big toe and the distal phalanx were less distinct, suggesting healing. Alignment was unchanged.
12. X-ray of the right knee on 11 January 2023 showed mildly impacted and mildly displaced transverse fracture across the proximal tibial shaft with more apparent varus angulation.
13. X-ray of the right knee on 18 April 2022 showed bridging callus of the proximal tibia fracture was more mature, consistent with ongoing healing. There was disuse osteoporosis.

1. In summary, Ms McCulloch was a passenger on a motor scooter hit by a motor vehicle, landing on the road, sustaining injuries to her right leg and right great toe and bone scan evidence of partially healed fractures of the right fourth and fifth ribs bilaterally in the rib cage which have settled and she has no pleuritic pain or shortness of breath. She has right knee scarring as described.
2. The following injuries were caused by the accident:
   • Right proximal tibial fracture now healed with varus deformity of the right leg of 10 degrees with 2cm of shortening of the right leg;
   • Rib fractures on the right and fifth ribs now settled;
   • Right first toe fracture now settled;
   • Fracture of left patella on bone scan, and
   • Scarring as described.
3. She remains conscious of the scar which shows multiple colour contrast with large pale areas and are easily located and had hypertrophic change with very thin skin and were tender to the touch and painful when knelt on. The location of the scars are visible with summer clothing and there was contour defect visible with minor limitation and impaction on ADL's (kneeling) and no treatment is required.
4. The facial scarring has been given 0% WPI by Medical Assessor Paul Curtin.
5. She had no symptoms in her left patella today and no crepitus.
6. There was bone scan evidence suggesting mildly displaced intra-articular fracture involving the lateral aspect of the left patella. The left knee was asymptomatic today and he showed a good range of motion and the left knee was stable.

1. Her whole person impairment for the left lower extremity tibial fracture with 10 degree varus angulation is from Table 64, Page 85, 20% lower extremity impairment.
2. That for the 2cm of shortening on her right lower extremity is 5% lower extremity impairment and that for the retropatellar crepitus following direct blow is from Table 62, Page 85, 5% lower extremity impairment.
3. This gives a total of 28% lower extremity impairment which equates to 11% whole person impairment.
4. That for the healed fracture of the lower pole of the left patella is from Table 64, Page 85 on bone scan/SPECT CT which has healed is 3% WPI.
5. That for the surgical scarring as described is from the TEMSKI Table 6.18, Page 136 of the Motor Accident Guidelines, 2% WPI.
6. This gives a total of 16% WPI from the Combined Values Chart.
7. There were no symptomatic pre-existing conditions. She has reached maximum medical improvement. There were no symptomatic pre-existing conditions.
8. She had abrasions to her teeth which were assessed by Paul Nichols whose MAC dated

6 September 2024 gave a WPI of 0%. 9. She has had assessment for scarring by Geoffrey (Paul) Curtin who, in his MAC dated

23 October 2024, diagnosed facial lacerations and abrasions and gave a WPI permanent impairment of 0%.

1. The whole Medical Review Panel consulted as to the findings by Medical Assessor Dixon on behalf of the Panel.

1. The Panel considered all the submissions on behalf of the insurer, including:
2. The insurer submitted that the claimant herself had stated that she had never had any pain or injury to the left leg as a result of the accident, nor within treatment undertaken.
3. In respect of this submission, the Panel points out that there was a healed fracture of the lower pole of the left patella on bone scan/SPECT CT which had healed, but giving 3% WPI.
4. This bone scan was evidence of a mildly displaced intra-articular fracture involving the lateral aspect of the left patellar.
5. This was objective evidence that Ms McCulloch had in fact sustained an injury to the left knee.
6. The insurer further argues that the left patella fracture was not submitted in the list of injuries to be assessed.
7. In respect of this, the Panel states irrespective of whether or not a fracture of the left leg was submitted for assessment, an injury to the left leg was submitted and it was described by Medical Assessor Gothelf in his listed injuries as "left leg - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes and radiculopathy" in the injuries referred for assessment.
8. The Review Panel was of the view that this was sufficient to require it to take into consideration the nature and extent of the injury to the left leg and it found that there was objective evidence of left leg orthopaedic injury as noted above.
9. In conclusion, the whole Panel, having discussed the findings of Medical Assessor Dixon, concluded that his opinion as to total WPI was correct and it appropriately informed the opinion of the whole Panel in that respect.

1. The Medical Assessors came to the following conclusions as to WPI:
   • Right proximal tibial fracture now healed with varus deformity of the right leg of

10 degrees with 2cm of shortening of the right leg - 11% WPI * Rib fractures on the right and fifth ribs now settled 0% WPI * Right first toe fracture now settled - 0% WPI * Fracture of left patella on bone scan - 3% WPI * Scarring as described - 2% WPI

1. The Medical Review Panel revokes the certificate of Medical Assessor Todd Gothelf of

15 September 2024 and substitutes the determination that as a result of the physical injuries caused by the accident, Ms McCulloch sustained a permanent degree of 16% whole person impairment.