Insurance Australia Limited t/as NRMA Insurance v Zaringhabaei
[2024] NSWPICMP 422
•28 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Zaringhabaei [2024] NSWPICMP 422 |
| CLAIMANT: | Saeed Jafari Zaringhabaei |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Brian Williams |
| DATE OF DECISION: | 28 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute as to person impairment and threshold injury; claimant was struck by the insured vehicle while crossing a road; the claimant has little recollection of the accident; he lapsed into an unconscious state and was taken to hospital where he was intubated in the ICU; blood alcohol level was elevated; reduced Glasgow Coma Score and discharged a week later; the insurer wholly admitted liability for the claim; claimant alleges a closed head injury causing hearing loss/tinnitus, anomia and vertigo; Medical Assessor (MA) found causation and 14% permanent impairment for hearing loss and anomia; MA also found that hearing loss/tinnitus is a threshold injury; Held – Medical Review Panel not satisfied that any of the referred injuries were caused by the accident; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act) 1. The Review Review Panel revokes the certificate dated 15 May 2023 and issues a new certificate determining that: The following injuries referred to the Review Panel for assessment have been assessed and determined to be not caused by the motor accident: · Hearing loss/tinnitus · Anormia · Vertigo A decision as to whether these injuries are a threshold injury is not required for the purposes of the Act. CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 (the Act) 2. The Review Review Panel revokes the certificate dated 15 May 2023 and issues a new certificate determining that: All the injuries referred for assessment have been assessed and determined not to be caused by the motor accident. An assessment of the degree of permanent impairment of these injuries is therefore not required. |
STATEMENT OF REASONS
INTRODUCTION
Saeed Jafari Zaringhabaei (the claimant) was injured on 22 April 2019 when he was struck on his right side by the insured vehicle while crossing Midson Road at Epping (the accident). The claimant has little recollection of the accident. He was assessed by ambulance staff and lapsed into an unconscious state. He was taken to Royal North Shore Hospital where he was intubated in the Intensive Care Unit. His blood alcohol level was elevated. He had a reduced Glasgow Coma Score. He was discharged a week later.
The insurer indemnified the owner and/or the driver of the vehicle at fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under Motor Accident Injuries Act2017 (the MAI Act). The insurer wholly admitted liability for the claim.
The claimant says that he suffered a traumatic brain injury in the accident, as well as injury to his cervical spine, lumbar spine, left elbow and right knee. Those injuries are the subject of separate reviews by differently constituted Panels. He also claims to have suffered hearing loss and loss of smell/taste (anosmia). The insurer denies that the claimant suffered a closed head or traumatic brain injury and thus no hearing loss or anosmia. The claimant also says that he suffers from accident-related vertigo. Hearing loss/Tinnitus/Anosmia and Vertigo are referred to the Panel for assessment.
There are medical disputes between the claimant and the insurer about whether the injury caused by the motor accident is a threshold injury, and the degree of permanent impairment, under Schedule 2, cl 2(a) and (e) of the Act.
ASSESSMENT UNDER REVIEW
The claimant was seen Medical Assessor Howison on 4 May 2023 who certified as follows:
The following injury caused by the motor accident:
- Hearing loss/tinnitus
is a THRESHOLD INJURY for the purposes of the Act.
The following injuries caused by the motor accident give rise to a permanent impairment of 14% and IS GREATER THAN 10%:
- Hearing loss
- Anosmia
Medical Assessor Howison found 9% whole person impairment for hearing loss and 5% whole person impairment for anosmia. He separately certified that Vertigo is outside his expertise and referred it back to the Commission for appropriate referral. As stated previously, the Panel assumes that Vertigo is to be assessed by the Panel.
THE REVIEW
The insurer sought a review of Medical Assessor Howison’s certificate on the basis that the assessments were incorrect, within the meaning of 7.26 of the Act, in a number of material respects. The insurer’s submissions are limited to causation of injury. They do not address Assessor Howison’s finding and certification that hearing loss/tinnitus is a threshold injury for the purposes of the Act. Nor do the claimant’s submissions address that issue.
The Panel notes that Assessor Howison found that the claimant suffered accident-related hearing loss/tinnitus arising from injury to the brain and to the ear. He set out in full the provisions of s 1.6(2) of the Act and cl 4 of the Motor Accident Injuries Regulations 2017 which together define a threshold injury. Leaving aside the issue of causation, the Panel does not think that hearing loss/tinnitus falls in the definition of a threshold injury, for the purposes of the Act, and thus must be a non-threshold injury.
The insurer’s submissions put in dispute the diagnosis of head injury and consequent brain injury, based on the circumstantial evidence relating to the accident, the contemporaneous medical evidence (ambulance and hospital records) and expert medico-legal opinion (Dr Stewart, joint neuropsychological expert and Ms Moodley, psychologist).
The insurer infers that Assessor Howison overlooked significant ear, nose and throat specialist, and other expert evidence available to him, as he failed to refer to it. That evidence included reports from three ENT surgeons and a clinical audiologist.
The insurer summarises the alleged errors contained in Assessor Howison’s certificate as follows:
·Finding that the claimant was not unconscious.
·Finding that the claimant suffered from a head injury and/or traumatic brain injury.
·Failure to consider evidence of pre-accident tinnitus.
·Failure to consider post-accident assault and head injury.
·Failure to take into account evidence from ENT specialists and experts.
·Failure to take into account relevant audiometry testings.
·Failure to provide reasons for finding that the claimant is deaf in the right ear.
·Failure to address the causation issue in relation to the claimant’s hearing loss.
·Failure to provide reasons for finding anosmia.
·Failure to address the causation issue in relation to the claimant’s alleged anosmia.
·Assessing the claimant with an ear injury.
The insurer submitted that each individual alleged error was capable of having a material effect on the finding that the injuries assessed by Assessor Howison were related to the motor accident.
The insurer’s application for review was opposed by the claimant. The claimant says that the history upon which Assessor Howison relied, namely that the claimant was not unconscious in the accident, was not “clearly erroneous”, as submitted by the insurer. The claimant says there is evidence to support that history. The claimant also submits that Assessor Howison was not obliged to put to the claimant the inconsistency between the most recent test of hearing loss and previous test of hearing loss, as the Assessor was entitled to rely on the results of an objective test performed, in the setting of his clinical assessment. The claimant says there was not an obvious issue on causation, noting that the independent medical expert qualified by the insurer accepted the presence of hearing loss. In relation to the issue of causation for the loss of smell and taste, the claimant submitted that it was adequately explained, as arising from a closed head injury.
President’s delegate Sophie Jones issued a Determination of an Application for Review of a Medical Assessment on 8 November 2023 which extended the time for the making of a review application. It stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment is incorrect in a material respect. The basis of that decision was said to be the insurer’s submissions that the medical assessor failed to take into account relevant considerations, failed to engage with the evidence and insurer’s submissions regarding the diagnosis of a head injury, and overlooked significant ear, nose specialist evidence, including audiometry testing reports.
Accordingly, the review application was accepted and referred to the Panel, which is to assess the following injuries:
·Mouth – loss of taste – ear, nose and throat related structures
·Hearing loss, tinnitus and Vertigo
·Nose and air passage – loss of sense of smell
The Panel is to assess causation, whether any of those injuries relevantly are threshold injuries for the purposes of the Act and whole person impairment, arising from all of the referred injuries which the Panel finds the claimant sustained in the accident.
The Review Panel notes the findings and reasons of separately constituted Review Panel in the related matters Insurance Australia Limited t/as NRMA Insurance v Zaringhabaei [2024] NSWPICMP 228 and 232 which must be given weight. However, the issue of causation of the claimant’s hearing loss/tinnitus/vertigo is a separate issue upon which the Review Panel must make its own determination.[1] The certificate and reasons in the related matter were tended by the insurer as late documents in the present matter.
[1] Considering the provisions of the Act, particularly subsection 7.23(1) and (2)(b), any medical assessment certificate is only conclusive evidence of what is certified
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[3]
[3] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[4]
[4] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[5] his Honour Justice Wright stated at [35]:
[5] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to 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 judgment.
6.7There 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.”
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“(A)n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membrane), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci, or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft-tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
a.comprehensive accurate history, including pre-accident history and pre-existing conditions;
b.a review of all relevant records available at the assessment;
c.a comprehensive description of the injured person’s current symptoms;
d.a careful and thorough physical and/or psychological examination;
e.diagnostic tests available at the assessment.
Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
· Internal Review Certificate dated 6 April 2023 confirming the insurer’s view that all of the claimant’s physical and psychological injuries are threshold injuries within the meaning of the MAI Act and the Guidelines. The stated reasons summarise the parties’ medical material.
· Report dated 24 August 2020 by Dr Stephen Buckley, consultant physician in rehabilitation medicine, to the claimant’s solicitors.
Dr Buckley made the following diagnosis:
oL5/S1 intervertebral disc rupture and protrusion, with a non-verifiable radicular sign.
oCervical spine soft tissue injury.
oRight knee soft tissue injury.
oAssessable Traumatic Brain Injury.
The claimant informed Dr Buckley that his worse problem is his low back pain, and then his neck pain. The claimant also experiences pain in his right knee, right foot, left shoulder and arm. Dr Buckley records his findings upon examination of the claimant’s cervical spine, both shoulders and lumbar spine. He does not say if he used a goniometer. Dr Buckley reviewed the diagnostic images and scans. He states that imaging of the brain, cervical spine and left shoulder was unremarkable. As to the lumbosacral spine, Dr Buckley refers to a MRI scan performed on 7 May 2019 which showed intervertebral disc desiccation, with a small right intervertebral disc protrusion, possibly contacting but not compressing the right L5 (or S1) nerve root. In the left elbow, the ulnar nerve was mildly thickened but no evidence of bony, cartilage or muscular injury was demonstrated. MRI scan of the right knee revealed a medial ligament strain.
Dr Buckley concludes that the injuries to the cervical spine, right knee and Traumatic Brain injury are minor (now threshold) injuries. He also concludes that the lumbar intervertebral disc rapture protrusion, and with a non-verifiable radicular sign is not a minor (now threshold) injury. The Review Panel notes that Medical Assessor Cameron said that the MRI of the lumbar spine on 7 May 2019 was reported as showing L5/S1 degenerative disease. Dr Buckley makes no mention of that.
Dr Buckley observed that progress with the claimant’s physical injuries would depend upon his capacity to manage his psychological recovery.
· Further report dated 16 May 2022 by Dr Buckley to the claimant’s solicitors.
Dr Buckley repeats the diagnosis given in his initial report. Dr Buckley records that the claimant’s worse problem is now “pins and needles” in his right leg, which occasionally affects the left. His next worse problem is “pins and needles” in the left shoulder. He also complains of facial “pins and needles” on the right side. He has continuing low back pain as well as bladder and bowel incontinence. He complains of memory and other cognitive impairments. Dr Buckley took a detailed description of the claimant’s problems with cognition and temper. The claimant was non-cooperative with the mental state examination. He collapsed to the ground upon commencement of the physical examination of his back. Dr Buckley could discern no reason for the claimant’s collapse. He was unable to explain to Dr Buckley what had happened. Dr Buckley could not proceed with the examination. He recommended a Forensic Neuropsychological assessment be obtained in order to assess impairment related to a traumatic brain injury. He assessed 5% whole person impairment for the claimant’s orthopaedic injuries.
· NSW ambulance report dated 22 April 2019.
This describes the claimant as being found lying prone on the road after being hit by a motor vehicle. The driver admitted to going approximately 30 to 40 kilometres per hour. The claimant had no obvious injuries and no active bleeding. Bystanders were used to assist with spinal precautions and to move the patient off the road.
· Report of MRI scan of lumbar spine performed on 6 April 2019 by Dr Craig Harris who states his conclusions as follows:
The intra lumbar discs are normal. The L5/S1 disc demonstrates dehydration, with posterior disc bulging more obvious to the right of midline, where there is a disc protrusion with annual tear…… partially displacing the right S1 nerve root within the lateral recess, and abutting the exiting right L5 nerve root without evidence of effacement or displacement. There is no facet joint arthropathy. Nerve roots are well positioned. The soft tissues have a normal appearance. L5/S1 degenerative disc disease with right paracentral disc protrusion and annular tear slightly displacing and partially effacing the right S1 nerve root, a potential sight of neural irritation. Less marked changes involving the exiting L5 nerve roots.
In relation to the right knee, Dr Harris says there is a medial meniscus posterior horn linear intrasubstance signal, reflecting either a small intrasubstance tear/contusion or meniscal degenerative change. There is no discrete tear cleft that extends through the surface of the meniscus, no meniscal plat. Partially discoid lateral meniscus, without concerning features.
· Report of cervical spine MRI performed on 9 April 2019 by Dr Brian Lam.
Conclusion: mild disc degeneration C3/C4 and C4/C5. No annular tear or focal disc protrusion is demonstrated. No acute bony injury.
· Report by Dr Paul Teychenne, neurologist, to Dr Angela Lam (treating general practitioner (GP)).
Dr Teychenne describes headache around the occipital parietal region over the top of the head. He notes a sharp pain from the right occiput extending through the brain into the centre of the right eye. He notes goosebumps down the left paravertebral region from the cervical spine to the lumbar spine. He notes persistent dizziness and muscle cramps under the lateral right and left sole. Dr Teychenne conducted a physical examination and concludes that the claimant has clinical evidence of an incomplete cervical cord lesion. Dr Teychenne stated that he would do future Electromyogram (EMG) muscle sampling to assess spinal cord and peripheral nerve function. He reviewed the MRI scans of the spinal cord.
· Clinical records of Royal North Shore Hospital.
There are letters from Dr Anil Nair, spinal surgeon, to Dr Lam. Dr Nair treated the claimant for pain in the cervical and lumbar spine radiating to both the upper and lower extremities. Dr Nair says that a repeat MRI scan showed foraminal narrowing in the sub axial cervical spine and mild disc desiccation in the lumbar spine. Dr Nair thought that the claimant ultimately will benefit from referral to a pain specialist.
· There are various reports from Dr Teychenne to Dr Lam which predate his report previously described. There is a subsequent report dated 20 September 2019 from Dr Teychenne to Dr Lam which concludes that the claimant has clinical evidence of an incomplete cervical cord lesion which is the primary cause of his overall picture.
· There are various reports of MRI scans of the cervical, thoracic and lumbosacral spine, all of which appear to show degenerative changes.
· There are records of Alcohol Withdrawal Scale tests performed on the claimant at Royal North Shore Hospital during his period of admission from 22 to 29 April 2019 following the accident.
Assessment Documents (R10) states as follows:
“Bystanders reported to ambulance crew he was fully conscious before they arrived but on their arrival, the patient was GCS 6/15. No obvious injuries identified pre-hospital. GCS 6/15 with no visible head injury. Observations within normal limits apart from GCS. No visible or palpable wall chest injury. No obvious clinical signs of bleeding in the chest, abdomen, pelvis or long bones. No visible or palpable head injury. Afebrile.”
· There are some 700 pages of clinical records from various treatment providers. Despite being directed to do so, neither party specified the entries that are said to be relevant to the matters in issue.
The insurer relied upon the following material:
· Insurer’s submissions (Review Application – threshold injury) dated 12 September 2023 and 1 May 2023.
· Report dated 24 March 2022 by Dr Jeanette Stewart, clinical neuropsychologist, to the insurer’s lawyers.
· Under the heading BACKGROUND, Dr Stewart notes that witnesses reported the claimant was initially conscious at the accident scene for several minutes before the ambulance and police arrived. He then reportedly lost consciousness. His GCS was recorded at 6/15. His breath smelled of alcohol. His GCS scores remained at 6/15 on three consecutive readings. He was conveyed to the Royal North Shore Hospital.
· Dr Stewart says that the NSW police records indicate that the claimant was walking onto the shoulder of a road and stopped. He allegedly looked at the vehicle and the walked straight into the vehicle’s path. The police report stated that the claimant did not have any visible injuries but was semi-conscious at the scene before being conveyed to hospital. The police record further stated that:
“The claimant’s Blood Alcohol Content is recorded at 0.153 in the Police Report. Toxicology testing at the RNSH recorded an alcohol concentration of 43 mmol/L or 0.20% (sample taken at 18:30, 1 hour after the accident), suggesting a high level of intoxication.”
· The police report is not in evidence before the Review Panel.
Dr Stewart refers to Royal North Shore Hospital records and says that:
“Mr Zaringhabaei told staff that he was drunk immediately prior to the accident and that he had gone to buy cigarettes. He said he was amnesic to the events that followed.”
It is not a matter of dispute that the claimant was intoxicated, at the time of the accident. Dr Stewart notes that the clinical records considered the possibility of a toxidrome as he had reduced GCS with no head injury. Intensive Care Unit (ICU) records stated that the claimant denied any substance used except for alcohol. He was discharged from the ICU on 24 April 2019 when his GCS was 15/15 (normal) and remained so across his admission.
Assessment of post-traumatic amnesia (PTA) commenced by the occupational therapist on 26 April 2019 with an initial score of 7/7 and subsequent scores reading 11/12, 11/12 and 10/12. The Operation Theatre stated that due to the PTA scores, the claimant was not recommended for discharge. Dr Stewart notes that the claimant complained about his treatment and threatened legal action against his treating team. The claimant was discharged from Royal North Shore Hospital on 29 April 2019. Records indicate this was because there were no significant acute injuries needing treatment and because he wanted to be discharged.
Dr Stewart notes that a cerebral CT scan reported no evidence of acute intracranial haemorrhage, extra-axial collection, acute transcortical infarct or mass effect. There were no injuries involving the cervical spine, abdomen, pelvis or chest, although a very small pericardial effusion was reported. Dr Stewart refers to a cerebral MRI scan dated 6 May 2019, the clinical indications being head injury, Malondialdehyde (MDA), reduced sensation in bilateral C6/C7. There were no significant intracranial abnormalities identified. The anteroinferior aspect of the brain was significantly obscured due to metallic artefact. A repeat cerebral MRI scan was conducted on 23 July 2019. Clinical indication was listed as “? Cranial nerve injury ?”, extra extraocular muscle palsy. Diplopia on left and right gaze and bilateral down gaze. There was no intracranial or infraorbital structural lesion identified.
Dr Stewart refers to a repeat cerebral CT scan performed on 3 October 2019 because of right-sided facial swelling. The report stated that image cerebral hemisphere had normal density and clear grey/white matter differentiation.
Dr Stewart records that the claimant was discharged from Ryde Hospital emergency department on 25 July 2021 following an assault. The claimant was punched several times by an unknown assailant. He reportedly fell to the ground but did not lose consciousness. His GCS was 15/15. A CT facial bones revealed a minimally displaced nasal bone fracture. He was discharged home with GP follow up.
Dr Stewart notes that the claimant made an application for total and permanent disablement (TPD) benefits in December 2019 through his superannuation fund. He had follow up consultations with various specialists including a cardiologist, an audiologist (diagnosed with mild sensorineural loss in the right ear), a colorectal surgeon, a urologist, a spinal surgeon and a neurologist, in addition to mental health professionals.
Dr Stewart then summarises the medico-legal reports and DRS certificates which is not necessary to repeat.
Dr Stewart details her clinical interview with the claimant. Dr Stewart notes that, at the start of the interview, the claimant appeared to be shaking all over his body. However, this was not observed for the rest of the session. The claimant initially was reluctant to discuss his memory of the accident. After some prompting, he said that he was crossing the road in order to purchase cigarettes. He admitted to having consumed alcohol but denied being intoxicated. He recalled looking out for traffic and commenced walking across the road when “everything then went blank”. He said he had no memory of the events that followed until he woke up in hospital a day or two later. He did not elaborate further on his recall of the events of the day. However, he did provide details of his alcohol consumption on the day, prior to the accident. Dr Stewart then details the claimant’s reported symptoms, reported medical history and reported personal history, which it is not necessary to repeat.
· Under the heading Neuropsychological Assessment, Dr Stewart firstly concedes that assessments of English Second Language (ESL) is challenging. However, Dr Stewart says that, even so, the claimant’s performance on neuropsychological assessment was very concerning and highly suggestive of a lack of genuine effort. His score on the Addenbrooke’s Cognitive Examination III was abnormally low even in patients with traumatic brain injury or dementia.
· Under the heading Discussion, Dr Stewart says as follows:
“According to injury parameters, Mr Zaringhabaei may have suffered a traumatic brain injury as a result of the accident. However, there was no evidence of loss of consciousness immediately after the accident, with bystander reports stating that he was conscious and talking for at least 10 minutes prior to the arrival of emergency services. His GCS deteriorated, but in the absence of any demonstrable damage to his brain as per radiological imaging (CT, MRI). Likewise, his blood alcohol content was very high, suggesting intoxication likely to have impacted on his GCS scores. His scores on testing for PTA were initially within normal limits. He obtained some slightly reduced scores on subsequent measurements which is again unusual but may have been influenced by opiate analgesia. In any case, there was no evidence of behavioural features, which would be expected in cases where post-traumatic amnesia is present.”
Mr Zaringhabaei was discharged home without supervision. He stated that he would travel to Melbourne and then to Tasmania. This suggests that he was able to make plans, organise himself and carry out tasks independently.
I am of the opinion that there is insufficient clinical evidence to suggest that he suffered a traumatic brain injury. He may have suffered a mild traumatic brain injury after which any symptoms (e.g. headache, dizziness, etc) would be expected to fully recover within a three to six month period. His reports of persisting and worsening symptoms are therefore inconsistent with the profile expected following a mild traumatic brain injury.
· On formal assessment, the results obtained are essentially invalid reflecting improbable effort, and likely, deliberate under performance. Likewise, his performance on psychological measures of validity is also extremely concerning and, as noted above, not consistent with what he observed in patients with genuine psychopathology or cognitive disturbance.
Dr Stewart concluded by stating she could not provide a diagnosis and apportionment of any disability between injuries caused by the accident and any other conditions/circumstances due to measure of performance inability.
· Report dated 27 September 2019 by Ms Vanitha Moodley, consultant psychologist, to the insurer.
Ms Moodley records that, on inviting Mr Zaringhabaei into the assessment room, he mobilised with the use of one Canadian crutch on his right arm, his laptop on his left shoulder and he walked with a limp in a straight and upright manner. Observation of his walking revealed no evidence of pervasive agitation or gross motor slowing suggestive of serious and disabling mental illness. In spite of over demonstration of pain, his participation through the assessment was unremarkable. He maintained satisfactory eye contact. He demonstrated a range of motion appropriate with the content of the interview. Although he reported memory and concentration difficulties, it did not appear consistent with his recollections, before, during or after the subject accident. Additionally, no evidence of cognitive decline was observed over the four hours that he spent participating in the assessment. He was assessed to be oriented in time, place and person. There was no evidence of psychosis.
Ms Moodley administered a battery of tests. His results were suspect across the range of tests. Ms Moodley says that there were inconsistencies which the claimant was unable to explain. Ms Moodley says that the claimant was not suffering from a post-traumatic stress disorder caused by the motor accident. His symptoms described in the interview were minimal and did not reach the threshold of clinical significance. He withheld information about his childhood lest it result in a possible pre-existing diagnosis of post-traumatic stress disorder. It appears that Ms Moodley also thought that the claimant was not suffering from an accident related minor psychological or psychiatric injury, that is not a recognised psychiatric illness.
· Report dated 15 October 2019 by Dr Andrew Keller, occupational physician, to the insurer.
Dr Keller was provided with a complete suite of medical records, reports of diagnostic scans and medico-legal reports. It is not clear if had the actual diagnostic scans to which he refers. Under the heading Causation, Dr Keller notes the ambulance report noted no damage to the insured vehicle and that the police report on the same day states there was a small dent on the car bonnet. Dr Keller notes the hospital assessment initially found the claimant to have no detectible injuries before his neurological alertness deteriorated, without explanation, requiring intubation and observation for some days.
Dr Keller says that investigations involving multiple MRI scans have shown no pathology in the brain, only age-related spondylosis in the neck, and an L5/L1 annular disc tear effacing the right S1 nerve root which, Dr Keller observes, is not uncommon in the claimant’s age group and appears to be degenerative in nature. Dr Keller goes on to say as follows:
“With careful consideration of the history of the accident and the reports of Police and ambulance, it is not clear to me whether Mr Zaringhabaei suffered any injuries as a result of this accident. I also note that his deteriorated consciousness in the hospital was unexplained and they appear not to have followed up his clinical management since this time as would be expected if a traumatic brain injury was confirmed…… I have a strong suspicion that Mr Zaringhabaei has some form of somatoform or functional condition that is affecting his symptoms and presentation……. I would strongly recommend an independent neurology opinion as to whether there is any objective evidence for neurological complaints affecting the brain or spinal cord. I would also recommend an independent psychiatric opinion.”
· Under the heading Diagnosis, Dr Keller says that he cannot make a diagnosis of any physical injuries attributable to the subject accident from the available evidence. He found the claimant’s physical presentation to be inconsistent with the assessment and not consistent with the usual patterns of physical injuries with regard to neck or back injuries. He found that the claimant’s condition had not stabilised and had not reached maximum medical improvement.
· Report dated 27 November 2019 by Dr John O’Neill, neurologist, to the insurer.
Under the heading Causation and Diagnosis, Dr O’Neill says as follows:
“On face value, it would appear that Mr Zaringhabaei suffered a significant closed head injury in the motor accident. The GCS was 6 at the scene requiring intubation on arrival at RNSH….. GCS was 15 by 24 April 2019. Mr Zaringhabaei was not completely out of post-traumatic amnesia on formal testing done up to the third day after the accident. Having made these points, there was no clinical evidence of a closed head injury and CT and MRI brain scans were completely normal. Mr Zaringhabaei did have an elevated blood alcohol level on arrival at RNSH….. The nerve conduction studies by Dr Teychenne would, in my view, be unreliable. Nevertheless, they have certainly excluded an obvious left ulnar neuropathy which had been the suggestion by Dr Herald for at least some of the sensory symptoms in the left arm. Psychological testing suggested malingering as the most likely cause of reported cognitive deficits. Today, I found no clear abnormalities on neurological examination…… I completely disagree with the diagnosis by Dr Teychenne. In my view, there is not enough evidence for the motor vehicle accident to be classified as having caused only ‘minor injury’ but having made that point, I certainly can find no evidence of any serious injury to the Nervous System as a consequence of the accident…… and the obvious psychosomatic overlay makes it almost impossible to make a meaningful assessment of complaints such as neck and low back pain. I believe there is a major psychosomatic component to his presentation and there may well be outright malingering.”
· Under the heading Treatment, Dr O’Neill says there have been no sensible explanations for continuing symptoms by treating specialists……. because no clear condition has been identified and because the obvious psychosomatic component to his presentation has not been recognised or discussed with the patient.
Dr O’Neill concluded that the claimant can make a full recovery with appropriate rehabilitation and assurance that he has no serious physical injury arising from the accident.
· Report dated 16 November 2022 by Dr O’Neill to the insurer’s lawyers.
In his refresher report, Dr O'Neill references the certificate and Reasons dated 20 March 2020 by Medical Assessor Ian Cameron. He also references Dr Stewart’s report previously summarised. Dr O’Neill opines that the neuropsychological assessment by Dr Stewart is in keeping with the psychological assessment by Ms Moodley. He agrees with Medical Assessor Cameron that the musculoskeletal injuries sustained in the accident were soft tissue injuries and could be regarded as “minor injuries” under the MAI Act.
· Certificate and Reasons issued on 5 April 2020 by Medical Assessor Ian Cameron.
Medical Assessor Cameron was to determine a treatment dispute. Under the heading Causation and Reasons, Medical Assessor Cameron says as follows:
“Mr Zaringhabaei sustained soft tissue musculoskeletal injuries in the accident. He also sustained an injury to his head but its severity is difficult to assess. He has multiple somatic complaints. He has had extensive investigations which have not shown significant abnormalities. Specifically, imaging of the whole spinal cord and brain has not shown evidence of injury. On examination, I could find no definite evidence of neurological abnormality…… I strongly disagree with the opinion of Dr Teychenne. I cannot understand how he can make a diagnosis of incomplete spinal cord injury in the absence of convincing neurological abnormalities on examination, as well as imaging of all spinal regions, that shows no evidence of a spinal cord abnormality.”
Medical Assessor Cameron found that no treatment and care is reasonable and necessary in the circumstances.
· Report dated 21 March 2022 by Dr Clive Chappel, ear, nose and ear surgeon, to the insurer’s lawyers.
Dr Chappel states that the claimant presented consistently. He says that the claimant’s chronic rhinitis is unrelated to the accident but that the complete loss of smell does appear to relate to injury suffered in the accident. Bruxism (clenching of the jaw) is the most likely source of the tinnitus that is very slightly pre-disposed by the very mild hearing loos evidence on audiometry. Reduction of the bruxism would likely resolve the tinnitus. Dr O’Neill assess 2% whole person impairment before binormal hearing loss (5%) and 5% whole person impairment for complete loss of smell.
· Supplementary report dated 9 August 2022 by Dr Chappel to the insurer’s lawyers.
The insurer requested Dr Chappell to review his findings on Causation. He referenced reports by Dr O’Neill, Dr Teychenne and Dr Stewart, as well as the history provided to the Lam. Dr Chappel concludes that the anosmia may be unrelated to the subject accident and could have been sustained in the assault that took place in July 2021. Dr Chappel notes that significant head trauma is reported in the Ryde Hospital record and that the claimant made no mention of the assault. Dr Chappel finds that, on the balance of probability, it seems more likely that the anosmia has resulted from the assault that took place more than two years after the subject accident.
RE-EXAMINATION
The report of the Medical Assessors is as follows:
“Injured Person’s Name: JAFARI ZARINGHABAEI, Saeed
Date of Birth: 15.6.1988
Date of Motor Accident: 22.4.2019
Assessed By: Assessor Dr Brian Williams and Dr M Gibson by telephone
Assessed At: Chatswood, NSW
Date of Assessment: 30.4.2024
Details of Who Attended the Assessment
The injured person attended unaccompanied.
There was a Farsi Interpreter present throughout the examination.
Dr Margaret Gibson of the Panel participated via telephone.
List of Injuries to be Assessed
The following injuries, as listed in the referral letter from MAS, were assessed:
·Mouth – loss of taste – ear, nose and throat related structures
·Hearing loss, tinnitus and vertigo
·Nose and air passage -loss of sense of smell
1. History as Given by the Injured person
History of the Motor Accident
In Easter 2019 he was crossing the road and a car hit him. He said he cannot remember the accident. I said the notes state he was not unconscious immediately but became unconscious. He had no comment.
He said he woke up in hospital. He said he can’t remember the name of the hospital.
History of Symptoms and Treatment Following the Motor Accident
Hearing Loss
He gave no history of hearing loss prior to the accidentDENT. I asked if he saw Dr Talbot in 2016. He said he can’t remember seeing him, then said he saw him for snoring but he is not sure. He said he can’t remember any hearing loss at that time.
After the accidentDENT he said he was hearing a noise in the right ear. He said he had an audiogram at the hospital and was told he had loss of hearing in the right ear and no hearing loss in the left ear. He said since the accidentDENT he thinks his right hearing loss is stable but said maybe he is used to it. He said he has difficulty hearing conversation on the right side. He said he needs to increase the volume of the television above others. He said he has no treatment for his hearing loss since the accidentDENT. He said he has never had a hearing aid.
I asked if he could help explain why the hearing test in hospital after the accidentDENT indicated a middle ear hearing loss but there was no sign of a middle ear problem on scans done at the hospital. He said he is not a doctor but sometimes tests do not always show everything. I asked him if he can help explain why the hearing test in hospital after the accidentDENT in April 2019 indicated he had a mild hearing loss and Assessor Dr Howison indicated he had a severe right hearing loss. He said he feels his right hearing is deteriorating.
Tinnitus
He gave no history of tinnitus prior to the accidentDENT. I asked if he saw Dr Talbot in 2016 and he said he can’t remember if he complained of right tinnitus. He said he can’t remember seeing Dr Talbot.
Later I asked if he had any explanation about Dr Talbot documenting right tinnitus in 2016. He said he cannot say much, but if it was present in 2016 it became worse after the accidentDENT.
He gave a history of tinnitus with headaches after the accidentDENT. He said it is a constant ringing. He said it is only in his right ear. He said it does not interfere with his daily activities during the day. He said it interferes with sleep induction at night for 2-3 hours. He said it is helped by soft music. He said he has had no treatment for his tinnitus. He said he has discussed his tinnitus with his GP. He said he has discussed his tinnitus with his treating ENT Specialist after the accidentDENT but said he can’t remember the name of the ENT Specialist.
Vertigo / dizziness
He gave no history of vertigo prior to the accidentDENT. He said he noted vertigo whilst in hospital. He said now he has vertigo, spinning in the head, when having a shower, lying in bed and closing his eyes and standing after sitting. He said sometimes he gets headache and dizziness. He said he has a feeling of turning on a chair. He said it occurs 4-5 times a day and lasts 30-60 minutes. He said he has had no treatment for his vertigo. He said he has not had a balance test.
Loss of Smell
He gave no history of loss of sense of smell prior to the accidentDENT. He said he noted loss of sense of smell at hospital after the accidentDENT. He said he can smell petrol and paint thinner. He said he can’t smell flowers, soft perfumes, food or smoke. I asked if he could explain why Dr O’Neill said there was no loss of smell. Mr Jafari Zaringhabaei made no comment on this. He said he smokes 5-10 cigarettes per day since the age of 20 years. He gave no history of asthma, hay fever or nasal or sinus surgery. He gave a history of nasal polyps with no treatment. He said he had no nasal trauma after the accidentDENT. I asked him about an injury on 25.2.2020 and recorded in Dr Chappel’s report and recorded by Dr Lam. He said to ask Dr Lam. I asked if he did get hit on the nose subsequent to the accidentDENT and go to hospital. He said in 2021 he was hit on the face and had cut lips and went to hospital. I asked can he help explain why other reports say he had a fractured nose. He said he doesn’t know why they say that as he didn’t have a fractured nose in the assault. He then said he can’t remember. Later I asked him to tell me about the injuries he had in the assault in July 2021. He said he can remember having a scan of the face. He said it was not serious and he was sent home.
Sense of Taste
He gave no history of loss of sense of taste prior to the accident. He said he could not taste food in the hospital. He said food is bland. He said he can’t taste sweet things.
Current Symptoms
Please see above.
Current and Proposed Treatment
Please see above.
OCCUPATIONAL HISTORY
·Carpenter/Farmworker for less than 1 year. He said he was exposed to the noise of hammering on high rise construction. He said he had to raise his voice to communicate with a person 1m away. He said hearing protection was worn.
·Iranian Army 2 years. He said he undertook basic rifle training with hearing protection. He said he mainly worked as a Driver. He said he had no injuries in the Army.
2. Findings on Clinical Examination
Clinical Examination
On examination I observed the following.
Ears
Otomicroscopy
Right Ear: His right external auditory canal is normal.
His right tympanic membrane is intact.
Left Ear: His left external auditory canal is normal.
His left tympanic membrane is intact.
Weber Test: Using the 512Hz tuning fork his Weber test lateralised to the left.
Rinne Test:Using the 512Hz tuning fork his Rinne test is positive bilaterally.
Dizziness:
He had no Spontaneous or Gaze nystagmus. Hallpikes test was negative. Rombergs test was unsteady, but this is not an objective test. Heel toe walking and Unterberger tests were unable to be done because of his sore back.
Sense of Smell
Test Odorant Response
Lemon -
Eucalyptus + oil or gas
Mint + petrol
Strawberry + watermelon
Cloves + gas for burner
Peppermint + pant
Table: - = not detected or identified
+ = detected but not identified
++ = detected and identified
Using the Sensonics Smell test, which is a quantitative test for the sense of smell, he scored 8 out of 40. He falls within the Class of Anosmia.
Sense of taste
Test Substance Response
Sugar -
Salt ++
Table: - = not detected or identified
+ = detected but not identified
++ = detected and identified
I consider his sense of taste is normal. And he was able to detect and identify salt.
Audiogram
Pure tone audiometry was performed on 30.4.24 in a suitable sound attenuated environment, being a sound proof booth, with a calibrated audiometer. His responses were repeatable and I considered accurate auditory thresholds were obtained. He passed the Stenger test. His pure tone audiogram showed a right sensorineural hearing loss maximal in the high frequencies. His left hearing thresholds were normal.
My audiogram in tabular form
| Date of accidentDENT | Frequency Hz | Left dB HL Air Bone | Right dB HL Air Bone |
| 22.4.2019 | 500 | 0 0 | 25 20 |
| 1000 | 0 0 | 40 35 | |
| 1500 | 0 0 | 40 40 | |
| 2000 | 0 0 | 50 45 | |
| 3000 | 5 5 | 60 60 | |
| 4000 | 15 15 | 60 60 | |
| 6000 | 5 | 55 | |
| 8000 | 5 | 60 |
\
Consistency of Presentation
The claimant presents as a person who has been in a motor vehicle accident as described.
The consistency of his presentation with the other medical reports and other material sighted has been discussed by the Panel.
3. Conclusions
Hearing loss
On the balance of probabilities, his right hearing loss is not caused by the accidentDENT. In 2016 Dr Talbot has recorded right tinnitus. In the clinical records of RNSH he had no symptoms of hearing loss and no signs of an acute ear injury or acute middle ear injury. In RNSH the audiogram undertaken because of symptoms of tinnitus recorded a right mixed hearing loss indicative of a middle ear abnormality. And on imaging at RNSH there are no signs of an acute middle ear condition. There is no sign of skull fracture or temporal bone fracture, and no sign of middle ear injury. A head injury causing a mild brain injury in the absence of any history of hearing loss, and the absence of any sign of physical injury to the ears and no sign of acute injury on imaging, is very unlikely to cause hearing loss. And his right hearing loss is deteriorating since the accidentDENT which is inconsistent with hearing loss due to a frank injury. The Panel recommends he should remain under the care of his treating Doctors. He gave a history of pre-existing occupational noise exposure.
As there is no hearing loss caused by the accidentDENT no assessment of WPI is required.
4.8.20 Dr Yu “continued fridge noise like tinnitus especially at night”;
Re: hearing. RNSH discharge referral. Claimant gave no history of hearing loss. Dr Scoppa found right hearing loss, but my audiogram shows right hearing loss is worse than Dr Scoppa or audiogram at RNSH.
Tinnitus
He has pre-existing documentation of right tinnitus. Dr Talbot in 2016 states pre-existing right tinnitus in quiet and recommended he may need audiometric test. The accidentDENT could aggravate his tinnitus. However in the absence of hearing loss caused by the accidentDENT, tinnitus is not assessable. In addition, the Panel finds that on the balance of probabilities, his right tinnitus is not caused by the accidentDENT, but is associated with the unrelated right hearing losses which are progressively deteriorating since the accidentDENT.
4.8.20 Dr Yu “continued fridge noise like tinnitus especially at night and on 17.8.20 “mild sensorineural loss”.
RNSH 22.4.19
22.4.19 RNSH CT Brain reports “no acute sequelae of trauma identified”; “?toxidrome. Nil acute injuries to explain low GCS”;
“tinnitus” – bilateral, persistent in the left ear, intermittent in the right ear. “No associated hearing loss”; “nil obvious findings on otoscope examination”.
“audiogram – mild mixed hearing loss in the right ear … and hearing within normal limits in the left ear; steroid treatment of hearing loss, however patient reports none”.
“No obvious injuries or deformities”
25.4.19 reports still has “noise in right ear …”.
Sense of Smell
4.5.18 Dr Havas – smokes over 20 cigarettes per day.
Dr Ronagh on 7.18.18 treated with Avamys nasal spray and Augmentin Duo Forte
Dr Ronagh 10.9.18: maxi sinusitis. Treated with Augmentin Duo Forte
7.8.18 MRI brain – mild maxillary sinusitis. Cyst at right root of nose.
3.10.18 CT facial bones and paranasal sinuses: “mild bilateral m axillary sinusitis. Nasal septum is deflected with convexity towards the right. There is bilateral inferior turbinate hypertrophy”.
3.10.18 Dr Ronagh referral to Dr Howison re “nasal septal deviation, bilateral nasal blockage …”.
Dr Ronagh 3.10.18: nasal septal deviation, bilateral nasal blockage
3.10.18 CT facial bones and paranasal sinuses: “mild bilateral m axillary sinusitis. Nasal septum is deflected with convexity towards the right. There is bilateral inferior turbinate hypertrophy”.
3.10.18 Dr Ronagh referral to Plastic Surgeon re “nasal septal deviation, bilateral nasal blockage ..”
Dr Ronagh on 11.6.19 – no mention of loss of smell. And on 6.5.19 – bitterness of taste
Ambulance report 22.4.19 states “was talking for at least 10 mins”; “no obvious injury”
Dr Lam, 6.5.19, 23.5.19, 10.5.19, 12.5.19, 25.5.19, 29.5.19, 27.6.19, 28.6.19, 3.7.19, 13.7.19, 17.7.19, 20.7.19, 24.7.19, 14.8.19, 24.8.19, 27.8.19, 29.9.19, 29.8.19, 11.9.19, 3.10.19, 10.10.19, 18.10.19, 5.11.19, 8.11.19, 13.11.19, 28.11.19 – no mention of loss of smell.
3.10.18 Dr Ronagh referral to Dr Howison re “nasal septal deviation, bilateral nasal blockage …”.
RNSH 22.4.19
I note no mention of loss of smell.
Dr Teychenne 4.7.19, 23.8.19, 19.8.19, 20.9.19 – no mention of loss of smell.
Dr H Low 4.7.19 and 30.9.19 – right nasal problem yet no mention of loss of the sense of smell. And on 17.7.19 CT Sinuses = lesion right anterior-inferior nasal cavity – no mention of loss of smell.
15.10.19 Dr A Keller (Occupational Physician) – no mention of loss of smell or taste.
Dr O’Neill (Neurologist) 27.11.19 states no loss of smell.
Dr O’Neill 16.11.22 – no mention of loss of smell.
Dr Chappel on 9.8.22 reports 25.2.20 Assault with head injury. And that Dr Lam records loss of consciousness and spent time in ICU at RNS Hospital.
5.4.20 Assessor Cameron’s Certificate – no mention of loss of smell.
22.9.20 V Moodley (Psychologist) – no mention of loss of smell or taste.
Dr Scoppa, 7.5.21 (over 2 years post accidentDENT) based on “He said he was advised that he sustained head trauma with loss of consciousness …..”; “He said his sense of smell was normal before the accident”; “He said his sense of smell had diminished severely after the accident”; “He said he was advised that the loss of smell had been caused by the head injury”; Dr Scoppa found anosmia.
Dr Scoppa states “Loss of smell occurs commonly following severe head trauma”. However, the physical exam and imaging at RNSH do not indicate “severe head trauma”.
Ryde Hospital notes 25 July 2021 – head trauma while walking his dog; swollen left lower lip and graze inner aspect of mouth. CT facial bones reports left fractured nose bone; minimally depressed and mild patchy opacification ethmoid. Hospital notes: injury – Head, no loss of consciousness, complained of facial pain and bloody nose.
5.7.21 Ambulance report – blood over nose, cheeks, hands; denies LOC; “bruising across left cheekbone, cut to lip with swelling”; “small deformity to left hand side of nose”; GCS=15.
The PIC review panel found mild brain injury.
Ryde Hospital records – assault with head injury subsequent to the accidentDENT. Dr Chappel opined anosmia may be related to that assault.
21.3.22 Dr Chappel – 5% Anosmia.
9.8.22 Dr Chappel –“On the balance of probability, it seems more likely that the anosmia has resulted from the assault that took place more than 2 years after the accidentDENT”.
1.10.19 Dr Keller – no physical injuries due to accidentDENT.
24.3.22 Dr J Stewart – “he has lost his sense of smell and taste”; Mild brain injury; No loss of consciousness immediately after accidentDENT and no sign of trauma on imaging with CT, MRI.
Dr Lam 6.5.19 “bitterness of taste sensation, more evident with solid foods rather than fluids …”. No mention of loss of smell.
The Panel has no evidence of pre-existing loss of the sense of smell. However he had pre-existing sinusitis and was a smoker. Whilst the accident could cause a loss of the sense of smell from a mild head injury. The Panel can find no documentation of loss of smell after the accident on 22.4.19 until 7.5.21, when mentioned by Dr Scoppa. Dr Scoppa found anosmia before the subsequent assault in 2021. Dr O’Neill 27.11.19 reports no loss of the sense of smell. Examination finds Anosmia but on the balance of probabilities, the accident did not cause the loss of smell.
However, the Panel were of the opinion there was subsequent and unrelated onset of anosmia, long after the subject accident.
Sense of Taste
The Panel finds it is not medically possible for the accident to cause loss of the sense of taste. He was able to detect and identify salt but not sugar. Dr Scoppa found no loss of the sense of taste. The Panel finds that on the balance of probabilities, he has no loss of the sense of taste.
Dr Scoppa reported re taste he “correctly identified these substances as “salty, sweet and lemon””. Dr Scoppa assessed 0%WPI.
Vertigo
The accident could cause positional vertigo (BPPV). Dr Scoppa found a positive Hallpike test indicative of positional vertigo. There is no other record of objective findings of vestibular impairment. On the day of examination the Hallpike test was negative for BPPV. The Panel finds that on the day of examination there is no objective findings of vestibular impairment. Accordingly, vestibular impairment is 0%WPI.
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Vertigo | MA Guides, 9.2, 10.11.23 and AMA4, Ch9, para9.1c, pp228-229 | Yes | 0 | 0 | 0 |
| 2 | Sense of Smell | MA Guides 10.11.23, Chapter 6.192 | Yes | 0 | 5 | 0 |
| 3 | Sense of Taste | MA Guides 10.11.23, Chapter 6.192 | Yes | 0 | 0 | 0 |
| 4 | Hearing Loss and Tinnitus | MA Guidelines, 9.2, 10.11.23 and AMA4, Chapter 9, Table 3 p228 | Yes | 0 | 0 | 0 |
* %WPI = percentage whole person impairment = 0%.
A Current % permanent impairment 5%WPI
B Pre-existing/subsequent % permanent impairment 5%WPI
C Adjustments % for effects of treatment 0%WPI
Final % permanent impairment 0%WPI”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Review Panel adopts the examination findings and reasons of the medical assessors.
[6] Section 7.26(6) of the Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[7] The medical assessors have explained the basis of their assessment which is different to that provided by Medical Assessor Howison.
[7] Insurance Australia Group Limited v Keen [2021] NSWCA 287
The Review Panel is not satisfied that the motor accident caused the claimant to suffer hearing loss/tinnitus, anosmia or vertigo, as a matter of medical determination, and as a matter of factual non-medical determination, for the reasons stated.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the certificates issued by Medical Assessor Howison on 15 May 2023 should be revoked. The new certificates appear at the commencement of these reasons.
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