CAK v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	CAK v AAI Limited t/as AAMI [2025] NSWPICMP 727
CLAIMANT:	CAK
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Brian Williams
MEDICAL ASSESSOR:	Thandavan Raj
DATE OF DECISION:	19 September 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; accident 8 July 2023; claimant incurred gradual hearing loss; dispute related to causation; original certificate did not accept link with hearing loss and accident; claimant’s review application; whether accident as it is alleged to have happened could cause gradual hearing loss; medical opinions were that forceful head injury with significant loss of consciousness was necessary prerequisite to condition having a traumatic aetiology; no evidence supporting necessary trauma occurring; claimant refused to be re-examined; on the papers; Held – accident did not cause hearing loss; original assessment confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel Assessment of Treatment and Care Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Panel affirms Medical Assessor Payten’s certificate dated 9 January 2025. 2. The Review Panel finds that the following treatment and care: · BICROS hearing aids, does not relate to the injury caused by the motor accident. 3. The Review Panel finds the following proposed treatment and care: · BICROS hearing aids, is not reasonable and necessary in the circumstances.

REASONS

BACKGROUND

The claimant was injured in the subject accident on 8 July 2023 as the back seat passenger on the insured driver’s side of a rideshare vehicle he shared with his partner, when it collided with the rear of another rideshare vehicle.
The insurer is responsible for loss arising from the claimant’s injuries from the accident under the Motor Accidents Injuries Act 2017 (MAI Act).
The insurer and the claimant are in a dispute under s 3.24 of the MAI Act relating to the provision of treatment and care from injuries caused by the accident.
The claimant applied to the Personal Injury Commission (Commission) to resolve this dispute.
On 9 January 2025 Medical Assessor Robert Payten provided findings on treatment and care pursuant to cl 2 (b) of Schedule 2 of the MAI Act certifying the claimant’s entitlement to treatment and care.
Medical Assessor Payten's certificate listed the Commission's referred treatment disputes for assessment as follows:
“(a) Whether the physical injuries give rise to a need for BiCROS trial to evaluate whether BiCROS hearing aids can effectively enhance hearing capabilities relates to the injury caused by the motor accident
(b) Whether the physical injuries give rise to a need for BiCROS trial to evaluate whether BiCROS hearing aids can effectively enhance hearing capabilities is reasonable and necessary in the circumstances.”

The Medical Assessor could not find a causal nexus between all the referred injuries and the accident, and accordingly all proposed treatment was not reasonable and necessary in the circumstances.
The claimant applied for review on the basis the assessment was incorrect in a material respect, submitting that Medical Assessor Payten failed to provide sufficient reasons and failed to engage with a substantial argument before him in relation to his finding that the hearing loss was not related to the motor accident.
Specifically, “The Assessor failed to consider essential evidence, including clinical reports from multiple treating specialists, which substantiated the causation and severity of [the applicant’s] injuries”.
On 6 March 2025 the President of the Commission’s delegate constituted this Review Panel (the Panel) to review the original certificate (the Review).
The President’s delegate referred the medical assessment to the Panel as the delegate was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
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 this medical assessment was made on or after 1 March 2021, those review provisions apply.
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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) follow 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.
On 3 April 2025 this Panel wrote to the parties directing the parties to produce bundles of evidence and submissions they were relying on before the Panel met to discuss how this matter will proceed.
This Panel met on 20 June 2025.
The Panel noted that the insurer contested that the accident mechanism could not have resulted in any injury to the claimant, and that it was optimum for the Panel to question the claimant on that aspect, as well as the onset of the relevant conditions.
The Panel’s Medical Assessors noted that the claimant has established that he suffers a condition that could be reasonably treated with BiCROS hearing aids, but the focus of the dispute was whether there was a causal link to the accident .
Under s 7.26(6) MAI Act, the Panel is obliged to perform a fresh review of all the matters with which the medical assessment is concerned. The Panel’s legal Member discussed with this Panel that he was already a member of Review Panel R-M29303/24, which was dealing with the claimant’s treatment disputes in respect to other body systems.
The Panel decided that while other certificates and reasons may provide probative evidence, other Medical Assessors’ or legal Members’ findings do not bind another Panel in its deliberations. This Panel is obliged to ask its own questions about the accident mechanism and examine the referred body parts to test how that could contribute to the injuries which are in issue before the Panel.
The Panel contemplated that it could be necessary to resolve this dispute on the papers because it was known that the claimant had refused to attend medical examinations with the insurer’s choice of medico-legal specialists and with other Review Panels. The Panel considered re-examination was optimum to enable the Panel to make its own decision on the causation issue addressing the accident mechanism.
Medical Assessor Williams was to examine the claimant on 1 August 2025 on behalf of the Panel, but the claimant wrote on 22 July 2025 that he would not consent to re-examination. The Panel decided to proceed on the papers having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers'.
The disputed issues presently are whether the accident caused an injury requiring the proposed hearing aids and whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”.

STATUTORY PROVISIONS

General

The MAI Act governs [CAK]’s claims and entitlements to benefits and compensation. The legislation provides a scheme of statutory benefits under part 3 of the MAI Act.
[CAK]’s statutory benefits includes weekly benefits for lost earnings and treatment and care needs for accident-related injuries.

Treatment and care benefits

The mechanism for the claimant’s recovering treatment and care costs caused by the accident is through the statutory benefits claim.
Section 3.24 of the MAI Act provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(a) the reasonable cost of treatment and care, …
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Following Schedule 2, cl 2 of the MAI Act, treatment disputes are medical assessment matters.
A medical assessment matter is determined in accordance with division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor, and following s 7.26 of the MAI Act, on review by a review panel (Panel) consisting of two Medical Assessors and a Member of the Commission.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation. It is unclear and unlikely the provisions in Part 6 of the Motor Accident Guidelines 9.2 (the Guidelines) relating to the meaning of causation of injury and impairment apply to assessing causation in treatment disputes. This is because Part 6 specifically applies only to assessing permanent impairment.
In order to promote consistency and harmony determining medical assessment matters, the Panel proposes adopting the approach to causation set out in cls 6.6 and 6.7 of the Guidelines,
“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.
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.”
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation”. Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the PIC Act, the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

REVIEW OF DOCUMENTATION

The Panel noted the following relevant documents:
(a)    traffic engineer Dr Michael Griffiths’s report dated 3 September 2024 on the biomechanical aspects of the accident;
(b)
ear nose and throat (ENT) specialist Dr Frank Elsworth’s report dated

1 November 2023;
(c)
ENT specialist Dr Timothy Matthews’ reports dated 22 February 2024 and

1 March 2024;
(d)    audiologist Myriam Westcott’s audiology report dated 16 May 2024;
(e)    MRI scan of brain and dedicated views of the IAMs which were normal;
(f)    CT scan of the petrous temporal bones on 24 February 2024 which was normal;
(g)    audiogram performed on 30 October 2023 showing a profound hearing loss in the right ear and a high-frequency sensorineural loss in the left ear;
(h)    neurologist Dr David Manser’s report dated 16 February 2024;
(i)    audiogram performed on 22 February 2024 which showed the same results as on 30 October 2023, and
(j)    negative Stenger test on 22 February 2024 to test whether there is non-organic hearing loss.

Evidence

The claimant described the accident in his application for personal injury benefits (claim form) 18 July 2023 as follows:
“I had requested a Didi driver from the theater located at 455 Pitt St. Once the driver arrived and picked up my partner and me, he began driving without ensuring that we had fastened our seat belts. Despite my partner’s request for assistance in locating the seat belt, the driver declined, preoccupied with a phone call. Consequently, while I was trying to help my partner secure the seat belt, the driver collided with the vehicle in front of us, resulting injuries to both of us. This incident occurred immediately after the driver had picked us up at the specified address, 455 Pitt St.”
The general practitioner’s (GP) note on 18 November 2022 was that “ENT examination: normal”. The Panel noted this was not a record of tuning fork tests of hearing and was not a record of a hearing test and accordingly this is not a measure of hearing.
The claimant first saw his GP, five days after the accident, on 13 July, 18 July, 25 July and 29 August 2023 with no record of right hearing loss.
The GPs records on 26 October 2023 records reported bilateral hearing assessment – three months of bilateral tinnitus after accident, but it does not mention right hearing loss.
The audiogram on 30 October 2023 does record right profound sensorineural hearing loss.
General practitioner, Dr Rassam’s referral letter to a psychologist on 3 August 2023 does not mention right sided hearing loss, and there is no mention of head injury. The following GPs letters dated 29 August 2023 and 26 October 2023 did not mention right sided hearing loss and do not mention a head injury.
Dr Rassam’s Certificates of Capacity 18 July 2023, 10 August 2023, 5 September 2023 3 October 2023 do not mention hearing loss, head injury, although there is a mention of hearing loss on 5 December 2023 which states low hearing after this accident.
Dr Rassam’s letter to Dr Siva dated 1 December 2023 mentions “re profound hearing loss on the right side for last 5 months came to attention after MVA in July 2023”. However, there is no mention of head injury. The GP’s letter dated 5 December 2023 does not refer to a head injury.
The insurer tendered a report from Road Safety Solutions by Dr Michael Griffiths dated

3 September 2024 on the biomechanical aspects of the accident.
That report records a history that on the night of the accident the claimant was the right rear passenger in a rideshare vehicle eastbound Honda Odyssey in Campbell Street in Sydney CBD
The report notes the claimant initially reported a right shoulder injury which has extended to include a head impact causing brief loss of consciousness, an intermittent left-sided facial tic, hearing loss with tinnitus, and nerve sheath tumour requiring excision, left hip, left shoulder, right wrist and elbow injuries.
The insurer instructed the expert to review the available material and report on the incident to address:
(a)    an assessment of the crash dynamics;
(b)    an assessment of the likely forces experienced by the claimant;
(c)    identifying any injury mechanism which might lead to those forces causing injury;
(d)    what injuries, if any, could the claimant have sustained in the incident;
(e)    is there any consistency between the injuries the claimant alleges and the possible injuries that could result from this incident;
(f)    what impact, if any, would the claimant’s alleged twisted posture have had on the injuries alleged in the subject accident, and
(g)    are the allegations of injury by the claimant reasonable?
The expert opined,
“On the basis of the sound physical evidence of the photographs depicting the damage to both the struck vehicle and the striking vehicle, it is deduced that the 5 to 10 km/hr reduction in forward velocity for the vehicle in which the claimant was travelling was well below the threshold for injury, particularly to two occupants seated in the rear of this 2012 model vehicle. The above summary of the physical evidence is further substantiated by the descriptions of the minor severity of the incident from the driver of the not at fault vehicle struck by the vehicle in which the claimant was travelling.”

The expert relied on versions of the accident provided in telephone interviews with the insured driver and the driver of the vehicle he struck. There were also photographs which depicted shallow left side front end damage to the insured’s car and also shallow right side damage to the struck car’s rear bumper. The expert described these as “shallow” because the damage did not cover the full width of the bumpers.
The claimant and his fellow passenger have provided versions of the accident which refer to the insured car travelling at 50 kmph. The expert disputes that speed based on his examination of the above evidence. Dr Griffiths’ view is that the damage to the vehicles would be much greater if the claimant’s recollection was correct and that it would need to be that speed for the claimant’s alleged injuries to have occurred. He also opined that the doctors supporting the nexus between the claimant’s injuries in the alleged accident were misled by the claimant’s account.
The insured driver also denies the claimant’s allegation that he had not paid attention and failed to give the passengers enough time to put on their seat belts. He says he was travelling slowly because of other traffic. He says he was distracted because the other passenger had touched him as he was approaching the struck car.
After he exchanged particulars with the other driver, he continued the journey with the claimant and other passenger to Bondi. He also says they did not complain about any injuries during the ride.

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Payten issued a Medical Assessment Certificate dated 9 January 2025 (the medical assessment).
The claimant presented with the following symptoms:
·        complete deafness in the right ear;
·        intermittent right-sided tinnitus;
·        constant loud left-sided tinnitus and bruxism, and
·        hyperacusis in the left ear.
Dr Timothy Matthews (ENT specialist) has proposed a trial of a BiCROS aid. A receiver is fitted to the right ear and the signal is transferred from the right side to a hearing aid worn in the left ear, allowing him to hear better from the right side than he does at the moment.
The insurer submitted that a minor traffic accident did not cause the claimant’s profound right-sided hearing loss.
Medical Assessor Payten recorded that [CAK] had never experienced ear symptoms before the accident. Hearing had been equal on both sides, and he had never experienced tinnitus in either the right or left ear. There has been no history of loud noise exposure, ear infections and no family history of hearing loss.
The circumstances of the accident recorded by Medical Assessor Payten were that:
“[CAK] was the seat belted passenger in the rear seat behind the driver in a DiDi car, which only minutes before had picked up [CAK] and his partner in the city.
[CAK] immediately was able to fasten his seat belt, but his partner was having trouble fastening hers. He therefore turned towards her and lent slightly forward when the vehicle he was travelling in impacted the rear of the car in front. He heard a loud bang and hit his head. He does not recall the exact details of where he hit his head or on what, but he is aware that he hit both sides of the head. He said that he was greatly shocked by the unexpected accident but from the history given did not lose consciousness as he was able to hear his partner speak to him immediately after the accident. He remained seated in the vehicle while the driver swapped details with the driver of the car in front. The car in front was not shunted into the vehicle in front of that car. Both cars were drivable after the accident. Ambulance and Police were not called.”
There was no vomiting and no vertigo at that time. He did not get out of the car until it arrived in Bondi. He was able to walk into his residence from the car.
The following day he was aware of tinnitus in his head which was a whooshing sort of sound. The right tinnitus has become intermittent since soon after the accident so that now he has tinnitus lasting from a few hours to as long as one to two days. He developed left sided tinnitus soon after the accident and that remains constantly severe until today. He also has severe bruxism and left TMJ problems.
He suspects that the hearing in the right ear gradually deteriorated from the time of the accident until he had an audiogram showing profound hearing loss on 30 October 2023, approximately four months after the accident. Sometime during this period, he became aware that he could not hear anything from a headphone covering his right ear that was worn during a Zoom meeting.
The Medical Assessor read audiologist Myriam Westcott’s report, dated16 May 2024 to the claimant stating, “[CAK] developed a gradual awareness of right hearing loss after the MVA”.
He also read Dr Timothy Matthews’s report dated 22 February 2024 to [CAK], saying that [CAK] became gradually aware that the hearing in the right ear had been reduced.
[CAK] agreed with these statements that he developed a gradual awareness of right hearing loss after the accident.
Examination of the ear canals and tympanic membranes showed no abnormality. Tuning fork testing showed a positive Rinne on the left side and a false-negative Rinne on the right side. The Weber test was lateralised to the left ear consistent with a right-sided sensorineural deafness.
A pure tone audiogram was performed in a sound proofed booth with a calibrated audiometer. Responses were repeatable on ascending and descending threshold measurements. His audiogram showed a profound hearing loss in the right ear and a moderate high frequency sensorineural deafness in the left ear. The Stenger test was negative excluding pseudohypoacusis in the right ear.
Medical Assessor Payten’s reasons with the certificate notes that the claimant told him,
“He heard a loud bang and hit his head. He does not recall the exact details of where he hit his head or on what, but he is aware that he hit both sides of the head
…There was no vomiting and no vertigo at that time …
The following day he was aware of tinnitus …
The right tinnitus has become intermittent since soon after the accident so that now he has tinnitus lasting from a few hours to as long as one to two days…
He suspects that the hearing in the right ear gradually deteriorated from the time of the accident until he had an audiogram showing profound hearing loss on 30 October 2023, approximately 4 months after the accident.”
Medical Assessor Payten found the profound right-sided deafness was not caused by the accident on 8 July 2023 because the contemporaneous documentation did not support such a diagnosis.
Medical Assessor Payten found the claimant’s profound right-sided deafness was not caused by the accident on 8 July 2023. A significant head injury which would be associated with a significant period of unconsciousness would have to occur to sustain a profound sensorineural hearing loss.
The sensorineural hearing loss alleged as a result of trauma occurs would have occurred immediately after the trauma. A total loss of hearing in one ear is usually noticed within one to two weeks of its onset.

Submissions to the Panel

Claimant’s submissions

The claimant’s relevant submissions to the Panel are summarised below.
The claimant referred to Ms Westcott’s audiology report dated 5 May 2025, which follows her initial report dated 16 May 2024, and her follow-up on 30 August 2024. Ms Westcott tested and treated the claimant, conducted ongoing assessments and therapy sessions and has provided a clinically sound explanation for the likely accident related aetiology of the referred condition.
Ms Westcott opines that the reported auditory disorientation, loss of sound localisation, and cognitive fatigue post - accident are consistent with a unilateral acquired hearing loss, likely developed at the time of the accident. She opines it is not uncommon for such deficits to be overlooked initially when more overt injuries dominate early clinical focus.
The claimant submits that Ms Wescott’s opinion should carry weight on the question of causation being related to the accident.
Medical Assessor Payten’s view that there is no causal link between the accident and the hearing loss does not consider the clinically documented possibility of delayed recognition of unilateral hearing loss after the accident.
Regarding the claimant’s hearing function before the accident Dr Pejman Amini examined the claimant on 18 November 2022, approximately seven months before the accident to treat a sore throat. Dr Amini conducted an ENT assessment, which was documented as “normal.” With no complaints, symptoms, or findings suggestive of hearing loss or auditory dysfunction at that time. This reinforces the claim that the onset of right-sided hearing loss and related auditory symptoms occurred only after the accident on 8 July 2023.
Ms Westcott recommended specific testing to confirm the site and nature of the lesion. The insurer rejected these medically necessary investigations. Those tests could have confirmed or ruled out cochlear dysfunction and/or functional hearing loss consistent with accident trauma. The insurer’s refusal was unfair to the claimant, as this could have reduced the controversy.
The claimant alleges the insurer’s legal representatives have acted improperly and excluded key correspondence between the claimant, ENT specialist Dr Elsworth, and insurer correspondence which clarifies that the claimant did not inﬂuence the content or conclusions of Dr Elsworth’s report.
The claimant disputes Dr Elsworth’s finding because it is factually inaccurate and does not reflect the totality of the claimant’s injuries or the correct mechanism of the accident.
Dr Elsworth’s report mischaracterises critical aspects of the collision, and Medical Assessor Payten relied on this to form his opinion. The claimant submits the insurer’s use of
Dr Elsworth’s report, without disclosure of the clarifying correspondence, constitutes a misleading presentation of the evidence and a serious breach of procedural fairness.
The insurer’s bundle submitted on 24 April 2025 has selectively excluded documents that Medical Assessor Payten in breach of this Panel’s instructions to provide the bundles relied on in the earlier assessment. The claimant submits this misrepresented the evidence and context, which must affect the weight the Panel gives to the insurer’s case.
In respect to the Griffiths’ report the claimant submits that it relies on two undated misleading and incomplete static photographs, incomplete medical reports which misrepresent “medical facts” and contradicts the claimant’s treating doctors, imaging and clinical presentation. He also submits the report methodology is speculative.
The claimant also refers to findings in other medical disputes, which support a nexus between the accident and other injuries.
The claimant also alleged that Medical Assessor Payten ought to have referred to neurologist Dr David Manser’s report dated 16 February 2024. The history in that report details complaints of headache, neck pain, photophobia, nausea and phonophobia, left-sided facial twitching, unrelenting fatigue, irritability, frustration, low stamina for social engagement and cognitive fogging.
Dr Manser opined persistent headache after mild traumatic head injury and chronic migraine was part of a persistent post-concussive syndrome.
The claimant alleges the Medical Assessor did not address this as evidence of mild traumatic brain injury which could account for the onset and progression of his hearing-related symptoms.

Insurer’s submissions

The insurer affirms its internal review determination and reasons dated 10 April and
2 July 2024 that the requested treatment is not related to the accident, nor reasonable or necessary.
The insurer contends the decision maker would be satisfied the various treatments sought by the claimant are not referable to the accident due to the low impact collision and the temporal delay in reporting of the claimant’s symptoms.
The insurer further contends the decision maker would therefore be satisfied the treatment sought by the claimant is not reasonable or necessary.
The insurer referred in detail to the contrasts between the claimant’s version of the accident and the drivers.
The claimant initially reported right shoulder pain in the months after the accident. He now alleges what is described as a ‘constellation’ of significant and widespread symptoms including a head injury with loss of consciousness, left sided facial tick, hearing loss and tinnitus, left shoulder pain, wrist and elbow pain, as well as hip, thigh and ankle pain.
The insured/ride share driver, and driver of the other vehicle both describe a low speed, low impact accident. The photographs demonstrate minor damage.
The claimant describes an impact at 50 kmph with various reports of the insured having been driving erratically and driving while on his mobile phone. He has variously reported the heavy impact caused him to hit both sides of his head, suffer a loss of consciousness. He has also alleged he was required to call a further ride share vehicle due to the extensive damage to that vehicle, but which is disputed on the basis of the insured driver’s statement.
The insurer contends the minor nature of the collision was not capable of causing the significant and widespread injuries belatedly alleged by the claimant.
The claimant told Dr Elsworth he had a seatbelt on; at the time he was leaning towards his partner who was also seated in the back seat and was assisting her with the attachment of a seatbelt. He did not recall any direct injury to his head although he presumed that he struck his head on the back of the front passenger seat. He was not knocked out. That doctor took a history the vehicle was not driveable following the accident and that another driver was called to continue the journey to the claimant’s home.
Dr Manser recorded the claimant told him he was a back seat passenger in a ride share vehicle which came into collision with another vehicle at speed of around 50 kmph. He was wearing his seatbelt but was twisted in an abnormal position helping his partner with her seatbelt and so it may not have been tight. On impact he was thrown laterally forwards and backwards including a head injury. He recalled the impact and had no period of amnesia. There was no nausea or vomiting or altered consciousness.
The claimant and his partner continuing on with their journey with the same rideshare driver, in the same vehicle immediately after the accident suggests the histories as to the severity of the accident are not borne out.
The claimant requests a BiCROS trial to evaluate whether BiCROS hearing aids can effectively enhance hearing capabilities following alleged accident related injuries and is reasonable and necessary to his recovery.
No complaints appear in the clinical records of any hearing difficulty immediately after the accident, despite alleging the hearing loss occurred within a short period after the accident.
The GP referred to an ENT specialist on 31 October 2023 following a hearing test which found profound hearing loss on the right side and left sided tinnitus.
The claimant told Dr Elsworth he first noticed hearing loss in the right ear three days post-injury. He also had tinnitus in the right ear from the time of the injury and for a duration of three or four days. He had undergone hearing assessment which confirmed a high frequency sensorineural loss in the left ear of a mild degree as well as profound sensorineural hearing loss in the right ear. On examination the ears appeared totally normal. Tuning fork testing was consistent with right side sensorineural deafness. The claimant was adamant that prior to the accident his hearing was normal. He stated that he had never had hearing tests done to confirm the normalcy of hearing before the accident.
That doctor commented the trauma required to cause change from normal hearing to almost total sensorineural deafness is quite significant, and he believed it unlikely to have been caused by the injury described by the claimant. In order to try to substantiate the claim, the doctor recommended an MRI of the temporal bones be carried out as well as repeat audiology including otoacoustic admission in both ears but particularly the right.
The claimant next consulted otologist/neurotologist and hearing implant surgeon Dr Timothy Matthews who provided a report dated 22 February 2024.
On this occasion the claimant reported he hit his head on both sides, which impacted both the left and right temple. He reported a brief loss of consciousness. Immediately after the accident though he was able to walk without assistance and did not have vomiting or vertigo. There was no facial weakness, but he was gradually aware that the hearing in the right ear had been reduced. He noticed over the following months he had issues with bilateral tinnitus and occasional right side otalgia. He experienced intermittent left facial tick.
When Dr Matthews examined the claimant there was no palpable cervical lymphadenopathy or head or neck lesion. Both external canals and tympanic membranes were normal/intact. There was no facial weakness. Cranial examination was normal. Audiology performed in October 2023 demonstrated a right profound sensorineural hearing loss with a left moderately severe high tone sensorineural hearing loss.
Left side speech discrimination was preserved and there was no functional hearing on the right hand side. MRI of the brain without dedicated internal auditory meatal views did not demonstrate any evidence of vestibular schwannoma[1] or internal auditory meatal pathology. Dr Matthews recommended a CT scan of the petrous temporal bone to exclude evidence of prior bony fracture together with MRI scan with dedicated internal auditory views to confirm normal.
[1] slow growing, generally benign tumour that originates from Schwann cells, which form the myelin sheath around peripheral nerves.
The insurer contends the report of Michael Griffiths is factually accurate, with Mr Griffiths having had regard to more than just ‘two static photographs’ to make his determination, including consistent statements of the drivers involved in the accident and the claimant’s medical records.
Mr Griffiths is a suitably qualified expert to make those conclusions, and the claimant has not served any qualified evidence in response countering the conclusions of Mr Griffiths.
In respect to whether any of the treatment was reasonable and necessary the insurer’s submissions relied on there being no causal nexus between the accident and the need for the proposed treatment. It did not address whether the treatment was appropriate or would not alleviate the claimant’s condition.

Panel deliberations

The Panel met twice. The inability to examine and obtain the claimant’s history of the collision created difficulties in testing the nexus between the accident on 8 July 2023 and the referred injuries and considering the treatment.

Causal nexus between the claimant’s hearing loss and the accident

The Panel must decide whether the specified treatment “relates to the injury caused by the motor accident.” The common law test of causation under the MAI Act was discussed by the Supreme Court in Briggs No. 2.[2] These principles are well settled.
[2] Wright J in Briggs No. 2 [2022] NSWSC 372.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[3] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[3] [2018] NSWSC 1710 at [29] (Phillips).
The Panel discussed, based on the evidence, whether the physical injuries give rise to a need for BiCROS trial to evaluate whether BiCROS hearing aids can effectively enhance hearing capabilities relates to the injury caused by the accident.

Further, the Panel discussed whether the physical injuries give rise to a need for BiCROS trial to evaluate whether BiCROS hearing aids can effectively enhance hearing capabilities is reasonable and necessary in the circumstances.
The Panel after reviewing the submitted documents confirmed that there were no contemporaneous records about the claimant suffering a significant head injury in the accident or a loss of consciousness.
The Panel considered the clinical notes summarised above.
The Panel also noted Mr Griffiths’ biomechanical report dated 3 September 2024 records the following:
“Driver of struck vehicle, Mr Z Mehmood, stated ‘All vehicles had been stopped …. Whilst we were waiting all of a sudden we were bumped into from behind …
Police were not called as it was only a minor accident.”
That report also refers to the insured driver’s statement dated 18 August 2023 which records:
“My airbags did not go off…When it happened, I asked the male and female in the back if they were OK. They said they were OK. Nothing happened everything was good…
Because it was a minor accident, and no one was injured we did not need to call the Police. After we exchanged particulars, we both got back into our cars and left, and I continued to drive the couple to Bondi…I asked them both a couple of times as we were driving if they were OK. They again said they were OK, and we finished the journey. At no time did they tell me that they had been hurt at all…Ambulance were not called as no one was injured.”
In respect to the weight the Panel should give Mr Griffiths’ report on the biomechanical aspects of the accident, the Panel noted that the claimant that medical evidence should be given more weight. The Panel concluded that it all had to be looked at.
The Panel noted Mr Griffiths’ opinion that “there is no scientific basis on which the claimant can substantiate that the abnormal pathologies alleged can occur in an incident of this nature”; namely of such low impact as the relevant drivers allege.
The Panel notes that the claimant and his partner agree on the speed and that the claimant was assisting his partner when the collision occurred. The Panel discussed whether their estimates of the speed could carry weight, because neither of them were in position to observe the speedometer or possessed any expertise in estimating speed. Recollections do differ, but so do the drivers’ recollections.
The insured driver confirms there was movement in the back because he feels what he thinks is the claimant's partner touching him.
The claimant assisting the partner may have been relevant in respect to other injuries because when the collision occurred, he was not sitting squarely in his seat and that could have led to a torsion.
The Panel notes the engineer does not adequately address why the claimant's corroborated contorted position at the time of the accident is irrelevant.
The Panel notes there is inconsistency between the insured driver and the driver of the car he hits. The insured driver says he was moving at about 25 kmph and the other driver says he and the insured driver had halted and then the accident occurred. The engineer assumes the driver in front of the insured driver is correct but does not provide sufficient reasons why he prefers that version.
While the forces involved in a motor accident provide important information about the potential for injury, the actual injuries sustained in motor vehicle crashes are dependent on a much wider range of factors including background factors (age and gender), the person’s orientation and activity at the time of the crash, and post-crash factors.
The Panel did not accept that a traffic engineer can decide the ultimate issue and reliably predict injuries that a person may sustain in a motor vehicle accident.
The claimant may have been inconsistent or mistaken in his description of the speed the accident occurred at, but if his treating doctors for this condition accepted a nexus between the accident and the hearing loss the claimant’s description of the speed and force of the impact could have carried more weight if it had been in the context of a head blow causing a significant loss of consciousness.
The Panel considered that while the hearing loss is undoubtedly present that neither

Dr Elsworth, Dr Manser nor Dr Matthews’ reports opined there was a diagnosed post- traumatic hearing loss which could be attributed to the accident if it occurred as described by any of the witnesses, because there was no significant loss of consciousness following a considerable head trauma.
The Panel noted that Dr Elsworth’s report dated 15 November 2023 records that the claimant told him “He does not remember any direct injury to his head…He was not knocked out…[CAK] said that he first noticed hearing loss in his right ear about 3 days following the injury”.
Dr Elsworth opined; “The trauma required to cause change from normal hearing to almost total sensorineural deafness is quite significant and I believe unlikely to have been caused by injury described by [CAK].”
Neurologist Dr Manser’s report dated 16 February 2024 records that the accident caused a head injury Dr Manser records:
“He recalls the impact and had no period of amnesia. He did not attend hospital after the event’. MRI Brain on 5.2.24 was normal...Head impulse test was normal bilaterally. He showed me an audiogram which identified profound sensorineural hearing loss in the right ear… The abnormal audiometry seems to support an objective injury…
He is due to see an ENT Surgeon next week for further evaluation.”
The Panel noted that Dr Manser did not diagnose post-traumatic right profound sensorineural hearing loss.
Physiotherapist David Cohen’s letter to Dr Manser on 8 November 2024 was “regarding his ongoing management of his neck and jaw following a motor vehicle accident on 8.7.23…As you are aware, [CAK] sustained a number of injuries as a result of the accident including sensorineural hearing loss”. This does not amount to a diagnosis which could carry weight against the qualified specialist medical practitioners’ opinions.
Dr Matthews undated note (but before 15 February 2024) recorded,
“He states he hit his head on both sides (left and right temple) and had a brief loss of consciousness. Immediately after the accident … not have vomiting or frank vertigo … was gradually aware that his hearing in the right ear had been reduced.”
Dr Matthews’s note dated 15 March 2024 states no abnormality “on CT Scan or MRI imaging of the middle ear/mastoid, labyrinth and internal auditory meatus”. Dr Matthews makes a diagnosis of “Right profound sensorineural hearing loss”.
The claimant submitted that the Panel should place weight on audiologist Ms Westcott’s opinion. Her report dated 16 May 2024 records,
“You developed a gradual awareness of right hearing loss after the MVA. There was no clear aetiology for the right hearing loss. Apart from occasional brief episodes, there was no right sided tinnitus, which was most unusual for a sudden sensorineural hearing loss.”
Ms Westcott reported on 30 August 2024 that “With regards to the aetiology of [CAK]’s right SSHL and in the absence of associated right sided tinnitus, [CAK] needs to be assessed to investigate a site of lesion and to exclude a post MVA involuntary, functional hearing loss”.
She recommended neurologist, neuro-otologist Associate Professor Miriam Welgampola. The Panel noted Ms Westcot does not make a diagnosis but recommended him to a neurologist to make the diagnosis.
Ms Westcott reported on 5 May 2025:
“In my initial report of 16^th May 2024, I made the following diagnosis with regards to [CAK]’s profound right hearing loss…
[CAK]’s altered communication ability, loss of ability to localise sounds and auditory disorientation following the MVA is consistent with his right sided hearing loss having developed as a result of, or since, the MVA. However, without a prior hearing assessment this cannot be confirmed…
I note that no cochlear fibrosis or other abnormality was detected on CT Scan or MRI imaging of the middle ear/mastoid, labyrinth and internal auditory meatus. So, there is no clear aetiology for the right hearing loss. Additionally, part from the occasional brief episodes reported, there is no right sided tinnitus, which is most unusual for a SSH. As [CAK]’s right hearing loss was reported to have developed gradually after the accident, for the above reasons, Dr Payten gives his opinion that the motor vehicle (MVA) was not the cause of [CAK]’s profound right sided sensorineural hearing loss. As indicated in my initial report, there can be a delay in recognising a unilateral acquired loss after an MVA, when the more tangible physical and neurological injuries sustained tend to dominate the more subtle effects of a change in hearing. In particular, [CAK]’s reported loss of ability to localise sounds after the MVA fits a diagnosis of a unilateral hearing loss acquired at that time…
The absence of DPOAE’s in [CAK]’s right ear would confirm the cochlear aetiology of [CAK]’s profound right hearing loss. In that case, I concur that without a hearing assessment prior to the MVA, the time of onset of the hearing loss cannot be clearly established.”
While Ms Westcott’s reports are helpful on tracking the trajectory of this condition and her treatment recommendations are appropriate, we have given more weight to evidence from medical practitioners on causation.
[CAK] and Ms [redacted]’s statements dated 3 July 2024 do not mention a head injury or loss of consciousness associated with the accident.
Medical Assessor Payten’s opinion based on his clinical knowledge and experience was that for trauma to be the cause of the diagnosed hearing loss initially there would need to be a head injury with a significant period of unconsciousness. There is no evidence this occurred.
The Panel consider Medical Assessor Payten’s and Dr Elsworth’s opinions on causation should carry weight. Noting the claimant’s submissions the earlier certificate reads as if the Medical Assessor considered the contemporaneous documentation and found there was no head trauma sufficient to cause a profound right sided sensorineural hearing loss.
The Panel’s Medical Assessors agree with Medical Assessor Payten’s opinion that an accident related gradual onset of hearing losses leading to a profound sensorineural hearing loss could not occur in the circumstances that the claimant described in any of the recorded iterations.
The Panel finds that after considering all the documents in this matter including the absence of temporal bone fracture, normal CT scan temporal bones, and normal MRI temporal bones, that it is not medically possible for a concussion as described in this matter to cause a gradually progressive right profound sensorineural hearing loss.
The Panel notes that Ms Westcott describes a possible scenario where the treatment focus is on other conditions associated with the accident so that the hearing loss was sudden but initially goes unnoticed.
Applying the Panel’s Medical Assessors’ clinical knowledge and experience and referring to the preponderance of the treating practitioners’ opinions and [CAK]’s descriptions of the accident which do not record the necessary head injury required to cause the claimant’s condition, the Panel is not satisfied that delayed recognition of unilateral hearing loss after the accident was probable.
The Panel finds that the claimant has not established that the alleged factor which could have caused or contributed to worsening of the alleged injury. This is a medical determination.
Accordingly, the Panel is not satisfied on the balance of probabilities that the accident caused a head injury of sufficient force to cause the sensorineural hearing loss the claimant is now suffering.

Reasonable and necessary in the circumstances

[CAK] had to establish that his sensorineural hearing loss was causally related to the accident before proceeding to considering whether [CAK] established that the treatment is both “reasonable and necessary.”
However, he has not established that nexus in accordance with the legislation. The Panel notes that the proposed treatment is appropriate but declines to find whether it is reasonable and necessary in these circumstances.

CONCLUSION

The Panel affirms Medical Assessor Payten’s certificate dated 9 January 2025.
The Review Panel finds that the following treatment and care:
· BICROS hearing aids,
does not relate to the injury caused by the accident.
The Review Panel finds the following proposed treatment and care:
· BICROS hearing aids,
is not reasonable and necessary in the circumstances.

[2025] NSWPICMP 727

19 September 2025