Nicolaou v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Nicolaou v Allianz Australia Insurance Limited [2025] NSWPICMP 633
CLAIMANT:	Nicol Nicolaou
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
SENIOR MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Thandavan Raj
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	22 August 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA); claimant suffered injury in an accident; the dispute related to the assessment of whole person impairment (WPI) of ear, nose, throat and related structures (hearing impairment and equilibrium vestibular impairment); MA found no hearing loss caused by the accident; accident did cause tinnitus but not assessable in absence of hearing loss caused by accident; no objective findings of vestibular impairment; MA assessed 0% WPI; Held – hearing loss not caused by accident; tinnitus caused by accident; no evidence of vestibular dysfunction; claimant suffers from vestibular migraine; certificate of MA affirmed.
DETERMINATIONS MADE:	Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel affirms the certificate of Medical Assessor Williams dated 9 July 2024.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 29 November 2018 Nicos Nicolaou (the claimant) was the driver of a vehicle stationary at a traffic light when a truck crashed into the rear of his vehicle (the accident).
Mr Nicolaou was 55 years of age at the date of accident and is now 62 years of age.
Mr Nicolaou has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Nicolaou under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Nicolaou as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s hearing loss was referred to Medical Assessor Brian Williams. He issued a certificate dated 9 July 2024.

DOCUMENTS CONSIDERED BY THE REVIEW PANEL

The Review Panel (Panel) issued a Direction to the parties on 5 May 2025 directing each party to upload to the portal an indexed and paginated bundle of all documents sought to be relied upon in the review.
On 21 May 2025 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 1,770 (claimant’s documents).
On 29 May 2025 the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 642 (insurer’s documents).
The Panel notes that there are extensive records addressing the claimant’s physical and psychological injuries. The Panel has read the entirety of the medical records but only proposes to reference those records which are relevant to the dispute to be determined by the Panel.

RELEVANT LEGAL AUTHORITY

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 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.”

CERTIFICATE OF MEDICAL ASSESSOR WILLIAMS

In a certificate dated 9 July 2024 Medical Assessor Brian Williams certified the following injuries caused by the accident give rise to a permanent impairment of 0%:
· ear, nose and throat and related structures (hearing impairment (tinnitus without hearing loss), and equilibrium vestibular impairment).[3]
[3] Claimant’s documents p 10.
The following injuries were referred for assessment:
· ear, nose and throat and related structures (hearing impairment and equilibrium vestibular impairment).
Medical Assessor Williams reported no history of hereditary deafness, no history of direct ear or head trauma or blast injury and no history of otitis media or ototoxic exposure. He had no history of otalgia (ear pain) or otorrhea (ear discharge). He had no history of ear surgery.
Following the accident Medical Assessor Williams reported the claimant experienced a pain in the neck following the accident but no bleeding from his ears or nose. He complained of a buzzing in both ears, with left worse than right and fluctuating pain in each which was aggravated by loud noise or car noise or groups of people. He could not remember when he complained to his GP about his ears.
Medical Assessor Williams reported the first note of hearing loss was on the certificate of capacity in April 2019.
Medical Assessor Williams concluded the accident caused no hearing loss because the claimant had no deterioration of hearing immediately after the accident and there are no signs or radiological signs of an ear or head injury sufficient to cause hearing loss.
He reported the claimant gave a history of tinnitus one to two days after the accident even though the first mention of tinnitus was in the certificate of capacity dated 14 January 2019. Medical Assessor Williams found the accident did cause tinnitus. However, he noted cl 6.180 of the Guidelines states tinnitus is only assessable in the presence of hearing loss and both must be cause by the accident. In the absence of hearing loss caused by the accident the tinnitus was not assessable.
In relation to vestibular impairment Medical Assessor Williams reported the first mention of a “sensation of moving” was in the certificate of capacity dated 14 January 2019. He reported in the clinical records subsequent to the accident he could find no objective findings of vestibular impairment. Medical Assessor Williams assessed 0% whole person impairment (WPI) in the absence of objective findings of vestibular impairment.

REVIEW PROCEDURE

The claimant has sought a review of the medical assessment of Medical Assessor Williams.
The application was lodged on 21 August 2024 within 28 days of the date on which the certificate of Medical Assessor Williams was made available to the parties.[4]
[4] Section 7.26(1)(b) of the MAI Act.
On 4 October 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.[5]
[5] Section 7.26 of the MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 14 July 2025 the Panel agreed an examination was necessary.

THE EVIDENCE

Other Medical Assessment Certificates

Certificate of Medical Assessor Chan

Medical Assessor Chan issued a certificate dated 29 September 2023 in which he concluded the following injury was caused by the accident:
· cervical spine – soft tissue injury.[7]
[7] Insurer’s documents p 598.
He certified the following injuries were not caused by the accident:
· left and right shoulder injury.
He assessed a DRE cervicothoracic category I which equates to 0% WPI. He found no assessable impairment of the shoulders.
Medical Assessor Chan reported a number of subsequent injuries:
·        a fall in August 2020 when descending stairs whilst attending an English class resulting in injury to the right elbow;
·        an occasion when he felt dizzy as he walked, grasped the branches of a nearby tree and bumped his head into the tree, and
·        on 7 May 2023 whilst picking a mandarin he felt dizzy, lost his balance and fell back onto his right elbow. He had an X-ray of his right elbow and an ultrasound of his right shoulder.

Certificate of Review Panel in respect of certificate of Medical Assessor Chan

A Review Panel comprising Medical Assessor Mohammed Assem, Medical Assessor Shane Moloney and Member Susan McTegg issued a certificate dated 19 May 2025 revoking the certificate of Medical Assessor Chan dated 29 September 2023 and issuing a new certificate determining that the following injuries were caused by the motor accident and gave rise to a WPI of 8%:
· injury to the cervical spine, and
· injury to the left shoulder.[8]
[8] Claimant’s documents p 1,737.
The Review Panel found the injury to the right shoulder was not caused by the accident.

Certificate of Medical Assessor Cameron

In a certificate dated 4 February 2024 Medical Assessor Cameron certified the following treatment and care related to the injury caused by the accident and was reasonable and necessary:
· the payment of Deralin as recommended by Dr Shaun Watson, and
· the gastroscopy and colonoscopy recommended by Dr George Daskalopoulos.[9]
[9] Claimant’s documents p 1,730.
Medical Assessor Cameron found that Mr Nicolaou sustained soft tissue injuries to multiple body parts, particularly to his cervical spine caused by the accident.
Medical Assessor Cameron certified the payment of Mobic as recommended by Professor George Murrell related to the injury caused by the accident but was not reasonable and necessary in the circumstances. He concluded that Mobic (Meloxicam) is a non-steroidal anti-inflammatory and should not be used in a person with gastrointestinal symptoms.

Certificate of Medical Assessor Baker

Medical Assessor Baker issued a certificate dated 8 November 2023 in which he certified the following injuries caused by the accident gave rise to a permanent impairment of 9%:
· post-traumatic stress disorder, and
· persistent depressive disorder.[10]
[10] Insurer’s documents p 614.
The certificate of Medical Assessor Baker is subject to review by a Review Panel.

Photographs of the vehicles

Photographs of the claimant’s vehicle show damage to the rear of the vehicle and the rear driver’s side panel.[11] The entire hatchback cover has been dislodged with more significant damage to the rear right-hand side of the vehicle including the rear lights and the bumper bar.
[11] Claimant’s documents p 1,237.
A photograph of the truck which collided with the rear of the claimant’s vehicle demonstrates damage to the front passenger side of the vehicle including a broken passenger side headlight.

Application for personal injury benefits

In the application dated 20 December 2018 the claimant listed his injuries as “whiplash, neck pain, headaches, ringing in the ears, sensation of moving”.[12]

Pre-accident treating medical evidence

[12] Claimant’s documents p 50.

Health Plus Medical Centre

The relevant pre-accident records disclose the following:
·        15 June 2016 – back arthritis;
·        23 June 2016 – OA (osteoarthritis); advised he has carpal tunnel as per neurologist;
·        11 April 2017 - severe arthritis in hands ? gout underlying;
·        28 April 2018 – neck pain: ?OA, injury six months ago by a concrete cutter machine; left knee pain, and
·        11 September 2018 – right knee pain last 3/12, denied injury.[13]
[13] Claimant’s documents p 303.

Eastbrooke Medical Centre, Carlton

On 11 November 2017 Dr Leo Agagiotis, general practitioner (GP) reported both hands were painful. He diagnosed bilateral osteoarthritis of the PIP joints with squaring of the bases of both thumbs as well as right carpal tunnel syndrome. He reported a gradual onset of symptoms in the preceding 12 months noting Mr Nicolaou had been doing a lot of hard labouring work.

Post-accident treating medical evidence

NSW Ambulance Service

The NSW Ambulance report stated:
“O/A patient self-extricated, in care of police and fire rescue, alert, appeared well-perfused, responsive to questions in full sentences. …
Report low speed collision, minimal deformation to the vehicle, nil airbag deployment.
Patient CO central neck pain/tenderness and generalised pain to right leg.
[14] Claimant’s documents p 55.
O/E… Nil lap-belt injury/abrasion noted. Nil neurological (sensory or motor) deficits, nil abrasion/injuries detected elsewhere on the body.”[14]

Bankstown-Lidcombe Hospital

Bankstown-Lidcombe Hospital ED Discharge Referral reported the following presenting complaint:
“MVA - hit from behind
Significant damage to rear of car
airbag not deployed
No LOC
no impact to head/neck …
has pain to neck and occiput
- midline neck pain
pain to anterior chest - mild
mild L shoulder pain
mild dec ROM
nil abdominal pain
…
Examination findings:
… mild sternal tenderness, nil seatbelt sign
Midline cervical tenderness at C3-4 … ROM to all joints bilat, no tenderness
…
UL/LL Neuro
- tone normal bilat
- power 5/5 bilat globally
- reflex + nilat to all, babinski down
- light sensation intact…”[15]
[15] Claimant’s documents p 107.

Your Padstow Doctors Plus

The clinical records of Dr Penelope Aligiannis of Your Padstow Doctors Plus disclose the following relevant records:
·        1 December 2018 – Thursday afternoon rear ended in accident; went to ED, dizzy, neck pain, stiffness since, tender paraspinal muscles, ROM (range of motion) limited in all directions; pain into midscapular region.[16] A certificate of capacity/certificate of fitness completed by Dr Aligiannis reported diagnosed “Whiplash + ringing in the ears + headache = sensation of moving”.[17]
[16] Claimant’s documents p 354.
[17] Claimant’s documents p 408.
·        7 December 2018 – neck pain ongoing, cannot lift head to look up – pain ++.
·        20 December 2018 – dizziness when lifting head, left ear ringing, headaches. A certificate of capacity/certificate of fitness completed by Dr Aligiannis dated 20 December 2018 reported diagnosed “Whiplash + ringing in the ears + headache + sensation of moving”.[18]
[18] Claimant’s documents p 349.
·        14 January 2019 – ongoing dizziness/vertigo feeling. For review by neurologist as symptoms not improving with physio. Feels that while he is stationary (while driving) that he is still moving. ROM improving- still some pain with rotation and elevation, the severe pain has settled, just ongoing dull ache.[19]
[19] Claimant’s documents p 356.
·        9 February 2019 – with walking - dizziness continue; Ears tinnitus; Feels full in ears; Now feels like vision is getting worse; Referral made to neurologist; Advised MRI brain; had left collar bone pain at the time of accident, ongoing shoulder ROM pain as per physio letter. A certificate of capacity/certificate of fitness dated 9 February 2019 provides a diagnosis of “whiplash + ringing in the ears + headache + sensation of moving + vertigo + left shoulder pain + left web space between thumb and index finger”.[20]
[20] Claimant’s documents p 419.
·        2 April 2019 - symptoms are ongoing; ongoing headaches; ongoing unsteadiness; ongoing neck pain with reduced ROM. The certificate of capacity/certificate of fitness provides a diagnosis of “whiplash + ringing in the ears + headache + sensation of moving + vertigo +deafness left ear – left shoulder pain (bursitis + supraspinatus tear) plus pain left web space between thumb and index finger”.[21]
[21] Claimant’s documents p 422.
·        23 April 2019 – symptoms not improved.
·        30 April 2019 –seeing neurologist again; to have CT neck and brain angiogram; X-ray normal.
·        21 May 2019 – pain in neck continues; ROM shoulder still limited by pain; pain in thumb continues; vertigo continues; unable to work.
·        31 May 2019 – ongoing symptoms; neck and shoulder and tinnitus and dizziness; worried about shoulder issue not improving; advised cortisone injection; discussed injection vs surgery vs physio.
·        14 June 2019 - shoulder pain becoming a problem; not keen for the injection. Referred to Prof G Murrell.
·        28 June 2019 – pain worse; no aggravating trauma; rotation, tilt, flexion and extension limited with pain; needs to return to physio.
·        29 July 2019 – ongoing shoulder pain + limited ROM due to pain; muscle atrophy left arm; neck pain ongoing; dizziness ongoing – bumping into things; very distressed by symptoms; frustrated over not being able to return to work.
·        12 September 2019 – pain is ongoing in the shoulder; at night unable to sleep; can’t do anything with the left arm; right shoulder is hurting slightly but it’s ok; the neck pain ongoing; unable to turn left and right due to pain; dizziness – slightly better – not all the time; worse with going up and down stairs – but I can feel it coming on so I have to hold onto something. The deafness and noise in the left. Saw the shoulder surgeon – operation on 15 October.[22]
[22] Claimant’s documents p 368.
·        2 March 2020 – right shoulder hurting now, last two days, due to overuse to compensate for left shoulder. Left shoulder pain – ongoing - no change. Right shoulder – full ROM with pain; Right arm power NAD.
·        20 August 2020 – Yesterday was in English class – was sitting; felt dizzy. Teacher advised him to go and get a drink. Reached the stairs. Fell to the ground. No LOC…. Sat on the stairs. Vertigo passed.[23]
[23] Claimant’s documents p 385.
·        10 September 2020 – Wife present – advised pt has been suffering from depression, patient was too embarrassed to tell me. This has been getting worse since the accident. Waking at night. Flashbacks. Appetite ok. Fear of driving. Socially isolated. Mood low. Ruminates. Low confidence.
·        27 October 2020 – Ongoing dizziness and vertigo. Worse with class. Could be due to walking, nose, looking up and down, stairs up and down ? triggered by stress. Last week – was doing gardening – bent down – and felt dizzy and fell forward – hit his scalp on a tree branch.[24]
[24] Claimant’s documents p 390.
·        14 January 2021 – reviewed hearing test. Consistent with other investigations. Had episode of dizziness/vertigo immediately after these investigations – fell onto rail – held on. Had to sit for half hour until it passed.[25]
[25] Claimant’s documents p 793.
·        26 June 2021 – Tells me he has finished taking the Mirtazapine after 1 box and feels it has not helped. Asks me what it is for – if it is for depression as this is what he has read. …Asks why he has been prescribed all these medications for vertigo yet when he looks them up they are for other reasons. … Has accepted his depression…. Still gets dizzy intermittently and falls, even when walking in a straight line. [26]
[26] Claimant’s documents p 798.
·        29 July 2021 – 1 week ago. Stood up, got dizzy (when he turned to the right), and fell onto a tree. … No LOC. Ongoing headaches and dizziness – especially when he looks to the right. [27]
[27] Claimant’s documents p 801.
·        14 March 2022 – Yesterday, was out in the garden, near the trees. Looked up at the trees. Sudden onset dizziness. Fell forward, hit head on the tree. Contusion on scalp. [28]
[28] Claimant’s documents p 817.
·        13 April 2022 – Dr Aligiannis forwarded a report to Transport for NSW. She recommended the claimant was temporarily unfit to drive due to vertigo.
·        18 July 2022 – saw Prof Jungfer – change in medication despite headaches. … Ongoing headaches and intermittent dizziness could be a side effect of the Valdoxan.
·        24 February 2023 – Stopped taking the Propranolol and Valdoxan. Concerned about side effects. … No evidence that the current medications are causing hypotension or abnormal liver functions tests (LFTs).
·        19 May 2023 – two weeks ago picked a mandarin from the tree, looked up, lost balance and fell back onto right elbow. Pain in the right elbow and right anterior upper chest.
·        21 August 2023 – ongoing dizziness.
·        22 November 2023 – went to Martin Place by train – he felt disorientated with the trains coming and going, trucks moving, people moving.
·        17 January 2024 – wanting a second opinion re his right shoulder from his fall in May 2022. Ongoing pain and stiffness.
·        10 May 2024 – right shoulder burning.
·        5 September 2024 – slight improvement with 50mg of Allegron. Has been struggling with his vision. Still feeling depressed.
·        24 October 2024 – 12 October had a fall. Climbing steps at the back of the house, looked up, felt dizzy, lost his balance and fell to the right and landed on the inner left knee and right shoulder and outstretched hand. Pain and swelling right thenar eminence. Right shoulder pain. Left knee has improved but was bruised initially. Also fell many months ago off his bed due to dizziness. He fell to the floor directly on his perineum and since then has had suprapubic pain and testicular pain.[29]
·        21 November 2024 – stood from the chair in the waiting room, walked down the hallway and was unsteady on his feet.
·        23 January 2025 – ongoing dizziness, ongoing sound sensitivity. Right shoulder burning.
[29] Claimant’s documents p 1,286.

The claimant consulted Dr Derrick Soh, neurologist on 18 April 2019, 18 May 2019 and
[30] Claimant’s documents p 137, 150, 567.
4 July 2019 in respect of ongoing neck and shoulder pain. On examination he noted there was no nystagmus or other cerebellar signs. Hallpike’s manoeuvre was negative. He considered the claimant’s symptoms were a combination of left supraspinatus shoulder tear with the possibility of a C5/C6 left foraminal narrowing that may have been exacerbated by the accident.[30]
In an audiology report dated 8 May 2019 Michael Gordon stated:
“The pure tone audiogram shows a bilateral and asymmetric sensorineural hearing loss. The right ear has a mild sloping to moderately severe hearing loss. The left ear has a mild-moderate sloping to severe hearing loss.
Speech audiometry scores are consistent with the pure tone thresholds.
Type A tympanograms were recorded from both ears, indicating normal middle ear function.”[31]
[31] Claimant’s documents p 557.
The claimant was referred to Dr Shaun Watson, neurologist on 14 June 2019. He noted “tinnitus, headaches, deafness left ear and episodes of loss of coordination”.
Certificates of capacity dated 14 June 2019, 28 June 2019, 29 July 2019, 27 August 2019, 24 September 2019, 14 October 2019, 25 November 2019, 20 December 2019, 20 January 2020 and 17 February 2020 provided the following diagnosis:
“whiplash + ringing in the ears + headache + sensation of moving + vertigo + deafness left ear – left shoulder pain (bursitis + supraspinatus tear) plus pain left web space between thumb and index finger ? c6 nerve impingement (c-spine) + bilateral sensorineural hearing loss.”
The claimant consulted Professor Murrell, orthopaedic surgeon in relation to his left shoulder pain on 17 July 2019. On 15 October 2019 Mr Nicolaou underwent an arthroscopic capsular release of the left shoulder under the care of Prof Murrell. The claimant subsequently developed right shoulder pain and on 9 February 2021 Mr Nicolaou underwent arthroscopy and rotator cuff repair of the right shoulder under the care of Prof Murrell.
On 13 August 2019 Dr Justine Millar, ear nose and throat surgeon reported:
“On examination today the external auditory canals and tympanic membranes appears unremarkable. On gross balance testing I note that he does drift off a little bit to the right-hand side on Fukuda Unterberger testing. He has what appears to be a rotator cuff injury to his left shoulder and therefore was unable to properly lift his left arm. The head thrust test did not demonstrate any saccades and he did not have any nystagmus on eye movement.”[32]
[32] Claimant’s documents p 98.
The claimant attended Blacktown Specialist Hearing and Balance Laboratory on
16 August 2019.[33] All vestibular function tests were normal. The Video Head Impulse Report has the following handwritten notation on the bottom of the report:
“Technical issues due to blinking and eye movement during testing. Mr Nicolaou felt dizzy throughout the test.”
[33] Claimant’s documents p 1,230.
In a report dated 13 September 2019 Mr Jack Anderson of Pinnacle Rehab RTW and Recovery undertook a workplace assessment report. He reported Mr Nicolaou injured his left shoulder, had a whiplash injury and experienced ringing/deafness in his left ear since the accident. He reported a constant ache in the left shoulder and neck pain on the left side with movement of the left shoulder and when turning the head to the left or right.
On 1 October 2019 Dr Millar reported the MRI scan did not demonstrate any abnormality. She reported his hearing test from five months earlier demonstrated bilateral asymmetrical sensory neural hearing loss worse in his left than his right.[34]
[34] Claimant’s documents p 102.
On 2 December 2019 Dr Millar recommended a hearing aid fitting.[35]
[35] Claimant’s documents p 100.
Mr Nicolaou saw Dr Shaun Watson, neurologist on 31 January 2020 in respect of the migraine headaches.[36] The history he obtained was that he was struck from the rear by a truck which threw his car into the gutter resulting in momentary loss of consciousness and immediate neck pain, left shoulder pain, headache and dizziness. In terms of dizziness, he reported the claimant described loss of balance, spinning and nausea which occurred four or five times a week, and particularly when he is walking. He considered Mr Nicolaou had suffered severe whiplash with migrainous symptoms. He considered whether there was a contribution from an ear injury but given the clinical pattern and normal vestibular function tests considered it unlikely.
[36] Claimant’s documents p 105.
On 16 July 2020 Maree Patikas, audiologist of Specsavers Audiology Roselands noted otoscopy revealed clear and intact tympanic membranes bilaterally. She reported:
“Pure tone audiometry revealed: Moderate to severe sensorineural hearing loss in the right ear and a moderate to profound sensorineural hearing loss in the left ear. Hearing asymmetry is noted, thresholds worse in the left ear.”[37]
[37] Insurer’s documents p 56.
On 21 August 2020 Dr Shaun Watson reported the claimant had been taking Endep 50mg for a few months with substantial overall improvement. He was experiencing headache two or three times a week and severe vertigo for about half an hour. He described an episode at TAFE when he was dizzy, and the teacher suggested he go outside for water and air. He then slipped on the stairs.[38]
[38] Claimant’s documents p 744.
In a report dated 5 January 2021 Yong Liu audiologist reported:
“Mr Nicolaou tells me that his hearing has deteriorated with ear pain in both ears since a car accident in 2018. Constant high-pitched tinnitus with a blocked ear sensation in both ears is also mentioned today. Mr Nicolaou also reports a recurrent disequilibrium sensation since the accident. Mr Nicolaou says he worked in the building industry for a short period [of] time before.”
Ms Liu reported Pure Tone Audiometry results indicated a mild to moderately severe sensorineural hearing loss in the right ear and a mild to severe sensorineural hearing loss in the left ear. Similar results were obtained from the Auditory Brainstem Response and Cortical Evoked Response Audiometry tests indicated a mild to moderately severe hearing loss in the right ear and a mild to severe hearing loss in the left ear, consistent with the audiogram.[39]
[39] Insurer’s documents p 58.
On 5 March 2021 Dr Watson reported the claimant has some kind of dizziness once or twice a day. He described a slight sense of fore and aft movement and sometimes spinning which can be very brief but often occurs getting out of bed, up and down stairs and walking.
[40] Claimant’s documents p 885.
[41] Claimant’s documents p 1,223.
Dr Watson prescribed Propranolol 20 mg daily. [40] On 10 September 2021 Dr Watson reported that the Deralin 20 mg had made a significant difference to the claimant’s dizziness and headache and suggested increasing it to 20 mg twice daily. He noted the Endep was being slowly withdrawn.[41] On 26 November 2021 Dr Watson recommended increasing the Propranolol to 40 mg daily.
Dr Patricia Jungfer, psychiatrist provided a report dated 24 March 2021.[42] She diagnosed major depressive disorder and post-traumatic stress disorder caused by the accident. She reported the claimant experienced flashbacks, is occasionally anxious in the community and avoids driving.
[42] Claimant’s documents p 869.
In a report dated 1 June 2022 Mina Candalepas, psychologist reported the claimant presented with severe levels of depression, with sadness, a flatness of affect, some social withdrawal, sleep disruption, fatigues, cognitions of worthlessness, agitation and anger in relation to his inability to return to his pre-incident functioning. She stated a key presenting concern throughout the entirety of the treatment process has been difficulties with managing episodes of dizziness.
In a report dated 14 June 2023 Dr Aligiannis, GP reported the Deralin (Propranolol) was initially prescribed by Dr Watson as per his letter dated 5 March 2021 to manage the headaches and dizziness associated with vestibular migraine secondary to the whiplash injury sustained in the accident.[43] She reported the symptoms of dizziness had been reported since the accident.
[43] Claimant’s documents p 1,605.
On 12 December 2023 Dr Watson reported pain and stiffness in the neck. He also noted he has dizziness and loss of balance variably triggered by looking up or down, trains, noisy shopping centres and lifts. Dr Watson affirmed his diagnosis of vestibular migraine triggered by injury. He thought there might also be a cervicogenic component to the dizziness. He prescribed Allegron 25 mg nocte.
On 19 July 2024 Dr Watson reported the claimant was taking Allegron 25mg nocte. He reported he felt a little less dizzy but feels unsteady and dizzy fairly often. He reported he continued to experience neck and head pain. Dr Watson concluded the claimant had severe migraine, possibly with a cervicogenic component. On 24 January 2025 Dr Watson reported Mr Nicolaou had a fall on 12 October 2024 which was related to spinning dizziness.
Dr Watson reported he experiences spinning dizziness on a regular basis which can be triggered by loud noises and visual motion.
On 19 July 2024 Dr Watson reported the claimant was taking Allegron 25 mg nocte.[44] The claimant was perhaps a little less dizzy but reported he felt unsteady and dizzy fairly often. He also experienced neck and head pain. Dr Watson reported he looked flat and depressed. Hallpike test was negative. His opinion as to diagnosis was unchanged.
[44] Claimant’s documents p 1,245.
The claimant saw Dr John Trantalis, orthopaedic surgeon on 13 June 2024 and on
2 August 2024 in respect of right shoulder pain. He thought the pain may have been from the biceps tendon and possibly a partial re-tear of the repaired rotator cuff.
On 29 November 2024 Ms Candelapas reported in the main the claimant’s psychological condition had not improved and was driven by his difficulties in managing pain and dizziness.[45]
[45] Claimant’s documents p 1,558.

Imaging

CT cervical spine, 29 November 2018 – the report concludes:
“No intracranial haemorrhage, no skull fracture, no cervical spinal fracture, subluxation or dislocation.”
MRI brain, 24 February 2019 – the report concludes:
“The appearance of the intracranial contents is within normal limits for the patient’s age.”[46]
[46] Claimant’s documents p 111.
CT neck angiogram, 6 May 2019 – the report states:
“No evidence of a carotid or vertebral artery dissection or occlusion. No acute cervical spine injury. Moderate to severe left C5/6 neural exit foraminal stenosis which may impinge on the exiting left C6 nerve root. This can be assessed with MRI. Multiple subcentimetre thyroid nodules.”[47]
[47] Claimant’s documents p 139.
CT neck angiogram, 6 May 2019 – the comment reads:
“No evidence of a carotid or vertebral artery dissection or occlusion.
No acute cervical spine injury.
Moderate to severe left C5/6 neural exit foraminal stenosis which may impinge on the exiting left C6 nerve root. …
Multiple subcentimetra thyroid nodules.”[48]
[48] Claimant’s documents p 114.
MRI cervical spine dated 31 May 2019 – the report concludes:
“Mild discovertebral spondylotic changes. C5/6 moderate to severe left foraminal stenosis due to uncovertebral osteophytes resulting in potential impingement of left C6 nerve root. C6/7 tiny left central disc protrusion associated with potential impingement of root entry zone of the left C7 nerve root. No myelopathy is seen.”[49]
[49] Claimant’s documents p 146.
MRI, IACs and brain report, 18 September 2019 – concluded:
“Normal examination of the IAC’s.
The appearance of the intracranial contents is within normal limits for the patient’s age.”[50]
[50] Claimant’s documents p 121.
CT scan brain, 9 August 2021 – the report concludes:
“No acute intracranial abnormality demonstrated.”[51]

Medico-legal evidence

[51] Claimant’s documents p 122.

Dr Kenneth Howison, ear, nose and throat surgeon (ENT)

The claimant was assessed by Dr Howison who provided a report dated 10 January 2020.[52]
[52] Claimant’s documents p 71.
Dr Howison reported the claimant developed ringing in his ears immediately following the accident, more marked in the left. He reported the tinnitus impacts both his sleep and concentration. He also reported a loss of hearing, more marked in the left ear.
On examination he noted both tympanic membranes were normal and intact and audiometry showed asymmetrical bilateral sensori-neural hearing loss more marked in the right ear. Pure tone audiometry was undertaken. Dr Howison concluded the extra loss of hearing in the left ear as compared to the right was as a result of the accident. He opined that the loss of hearing in the right ear was from previous exposure to loud noise on construction sites and as a chef. He concluded the tinnitus was as a result of the extra loss of hearing occurring in the left ear following the accident.
Dr Howison concluded the loss of hearing in the left ear was as a result of the whiplash injury which could have caused damage to the cochlear which would affect the hearing in the left ear. Dr Howison found the sensation of something moving in his ear was of unknown origin and not related to the accident. He assessed a 3% WPI for severe tinnitus.

Prof Paul Fagan, ENT, hearing loss and tinnitus specialist

Prof Fagan assessed the claimant and provided a report dated 21 October 2020.[53]
[53] Claimant’s documents p 774.
If an allowance was made for tinnitus Prof Fagan assessed 4% WPI.
Prof Fagan reported the external auditory canals, tympanic membranes and tympanic cavities were found to be normal as was the rest of the relevant areas of the upper respiratory tract. He was not satisfied that a reliable audiogram was obtained. He noted threshold were wildly inconsistent.
The clinical opinion of Prof Fagan was that the true level of hearing was normal or near normal range. He stated this belief was strengthened by the conversation between the claimant and the interpreter which were conducted at sound levels which could only be understood by people with normal or near-normal hearing.
He recommended the claimant undergo Cortical Evoked Response Audiometry which he described as an accurate and objective test.

Dr Frank Machart, orthopaedic surgeon

Dr Machart assessed the claimant at the request of the insurer and provided a report dated
[54] Insurer’s documents p 214.
7 October 2020.[54]
Dr Machart diagnosed a cervical soft tissue strain at the time of the accident. In relation to the left shoulder, he concluded whilst frozen shoulder can develop for no reason in the presence of a potential injury from the accident, the impact of the accident cannot be entirely discounted. He stated it was reasonable to conclude that the left shoulder adhesive capsulitis (frozen shoulder) was at least in part caused by the accident.

Dr Michael Hong, psychiatrist

Dr Hong assessed the claimant and provided a report dated 8 November 2021. He diagnosed post-traumatic stress disorder caused by the accident. The history he obtained included a hearing problem and vertigo since the accident.[55]
[55] Claimant’s documents p 60.

Prof James Brew, neurologist

Prof Brew assessed the claimant at the request of his lawyers and provided a report dated 20 January 2022.[56] Prof Brew reported following the accident the claimant had had ongoing neck pain initially going into the left shoulder with involvement of the right shoulder over the subsequent months. He also complained of headaches, diminished hearing and bilateral ringing in the ears. He reported poor balance.
[56] Claimant’s documents p 81.
Prof Brew diagnosed musculoskeletal neck pain, bilaterally frozen shoulders, post-traumatic migraine, and vestibular migraine, all related to the accident. He also noted sensory neural hearing loss bilaterally. He also concluded that the rotator cuff tear on the left was a direct result of the accident.

Dr Charles New, orthopaedic and spinal surgeon

Dr New assessed the claimant for his lawyers and provided a report dated 8 August 2022.[57]
[57] Claimant’s documents p 99.
Dr New reported on impact Mr Nicolaou had pain in his neck and left shoulder and ringing in his ears. Dr New reported prior to the accident Mr Nicolaou held a full-time job without restriction. He reported the cervical spine was his main issue although he also had difficulties with recurrent headaches, vertigo and hearing loss. He also described a number of falls due to the vertigo in August and October 2020, July 2021 and March 2022.
Dr New diagnosed cervical spondylosis and bilateral shoulder pain.

Dr James Powell, orthopaedic surgeon

Dr Powell assessed the claimant for the insurer and provided a report dated 28 April 2022.[58]
[58] Insurer’s documents p 225.
Dr Powell reported at the time of the accident Mr Nicolaou had pain in the neck and about the left shoulder region. Dr Powell reported the first mention of left shoulder pain was from
9 February 2019 referring to the left clavicle.
Dr Powell concluded the claimant’s ongoing disabilities relate to bilateral shoulder stiffness and pain which arises from his rotator cuff disease and post-operative state, none of which relate to the accident.
In relation to the cervical spine Dr Powell considered any soft tissue strain had resolved, and no further management was required, although he found the prognosis was guarded with respect to the multilevel degenerate disease which had been symptomatic prior to the accident. He found there was no accident-related WPI in the neck or either shoulder.

Dr Christopher Canaris, psychiatrist

Dr Canaris assessed the claimant and provided a report dated 17 August 2022. He concluded the claimant’s presentation was consistent with post-traumatic stress disorder. He also noted “evidence of a somatic symptom disorder which reflects the extent to which his physical difficulties have come to dominate his life, but which does not imply that they are without pathophysiological basis”.

Dr Ross Mellick, neurologist

Dr Mellick assessed the claimant at the request of the insurer and provided a report dated
[59] Insurer’s documents p 252.
27 September 2022.[59] There is some doubt about the efficacy of the assessment where an interpreter was not available for the entire assessment.
Dr Mellick concluded that the details of the accident did not indicate that it involved a high degree of trauma and the information from the ambulance officers and the hospital following the accident together with his findings did not establish the possibility of a significant structural lesion to the spine or any other deeply sited neurological consequence.
He diagnosed a chronic pain syndrome and associated impairment of function due to severe depression dating from the accident.
He stated that the vertigo/dizzy spells were not likely to be causally related to the injury.

Luke McGrath, pharmacist

Mr McGrath undertook a medication review and provided a report dated 13 January 2023.[60] He reported Valdoxan (Agomelatine) has a high risk of causing liver impairment and may contribute to the dizziness experienced by the claimant. He stated:
“This medication may be contributing to or causing orthostatic hypotension and dizziness which have been reported, in which case should be considered at a lower dose.”

SUBMISSIONS

[60] Insurer’s documents p 276.

Claimant’s submissions

The claimant provided submissions dated 21 August 2024 in support of the application for review.
Medical Assessor Williams found on the balance of probabilities that the accident caused no hearing loss because the claimant had no documented deterioration of hearing immediately after the accident and there were no signs or radiological signs of an ear or head injury sufficient to cause hearing loss.
However, the claimant notes that Medical Assessor Williams reported on the findings of
Dr Millar of 2 December 2019 of bilateral sensorineural hearing loss, worse on the left than the right, possibly a result of the accident.

The claimant notes that Medical Assessor Williams also referenced the report of Dr Howison of 10 January 2020 who noted the rear-ender with no airbags deployed, immediate ringing in the ears, left worse than right, the claimant’s assertion that he had lost hearing and his review by Dr Millar.

Insurer’s submissions

The insurer provided submissions dated 5 September 2024 in reply to the application for review.[61] The insurer submits Medical Assessor Williams disclosed his path of reasoning and the claimant’s application should be dismissed.
[61] Insurer’s documents p 3.
The insurer provided submissions dated 18 August 2022 detailing further documents received in respect of the permanent impairment dispute since the Internal Review Certificate was issued.[62]
[62] Insurer’s documents p 11.
Further submissions dated 15 August 2023 address additional documents sought to be relied upon which are otherwise addressed in these Reasons.[63]
[63] Insurer’s documents p 15.

MEDICAL EXAMINATION

Mr Nicolaou was assessed by Medical Assessor Raj at his rooms in Penrith on 29 July 2025. He was assisted by a Greek interpreter.

History

Mr Nicolaou was involved in the accident on 29 November 2018. His vehicle was rear-ended by a truck on the driver’s side. He extricated himself from the vehicle and did not suffer a head injury, but sustained whiplash to his neck. He exhibited no symptoms referable to the ear, nose, and throat region; notably, he did not notice any hearing loss or tinnitus immediately or shortly after the accident. He was unsure whether he had been treated for a head injury. Subsequent imaging did not show any evidence of intracranial or skull injuries.
Medical Assessor Raj questioned him regarding the note at Bankstown Hospital, “hearing had not changed”. He could not specifically remember the context of the note, and he could not remember whether any hearing loss was discussed. He was in severe pain from his neck injuries, and he was not able to concentrate on other issues.
He was subsequently discharged home.
Mr Nicolaou thinks he first became aware of the tinnitus about three to four weeks after the accident, mainly on the left side. He said the tinnitus was bilateral but worse on the left side. He did complain to his GP about the tinnitus, and there is a note on the GP records dated
20 December 2018 that he complained of tinnitus on the left. He had previously seen his GP on 1 December 2018 after the accident, but he said he concentrated on the pain from his neck injuries and did not complain about other issues. He said he was not aware of any hearing loss at this time, even when he complained about the tinnitus on 20 December.
The history is slightly confusing, with the details not clear, but he first became aware of his hearing loss about six months later (May 19), when he was told he had a hearing loss after a hearing test. When questioned about this, he said, even before the hearing test, he had suspected a loss since at times he could not hear his wife. He stressed that before the accident he had no hearing problems or tinnitus. He said the question of hearing loss occurred when the tinnitus became an issue.
The history given to Dr Williams was different in that he said the claimant became aware of his hearing loss three days after the accident. Further, when he saw Dr Miller in August 2019, he said he had no communication difficulties as his right hearing was okay. He could not explain these inconsistencies, as his recollection of the immediate events is blurred.
The tinnitus is quite severe. It interferes with all aspects of his life. He cannot concentrate due to both tinnitus and other issues, and similarly, his sleep is affected. He has difficulty hearing his wife.
He also specifically mentioned that the television should be on low volume. He watches television but cannot concentrate for more than 10 minutes at a time. However, in response to a question about following the programme even with the low volume, he said he could. He was not clear whether he was hearing the conversation, despite the low volume of the television, although the impression given was that he did.
He has not had any treatment for his hearing loss or tinnitus.

Past history

He did not have or was not aware of any hearing loss or tinnitus before the accident.
He was exposed to construction noise for two years before the accident.
He has no alcohol or drug history.
There is no family history of hearing loss, no known history of ear pathology, ototoxic medication use, severe head injury, or sudden exposure to noise, except for the accident. He had no hobbies that exposed him to noise. He served in the Greek army for one year, mainly in the office.

Observations during the medical examination

He was softly spoken, unusual in someone with severe hearing loss, as indicated in the audiogram.
The interpreter did not raise her voice, and he could hear her.
He did not preferentially use either of his ears to listen.
He did not lean forward or encroach on the speaker’s personal space to try to improve his hearing.
He understood some English and was able to answer some of Medical Assessor Raj’s questions appropriately, even though he did not raise his voice and sometimes spoke slightly quieter than usual, intentionally. (The normal voice level is 60dB, and when spoken quietly, the levels decrease to 40 decibels (Db). If one can hear a voice at these levels, that would be the minimum hearing threshold clinically).
Medical Assessor Raj specifically noticed that Mr Nicolaou did not ask the interpreter to repeat himself even once during the whole consultation.
Noting the above observations, the first impression of Medical Assessor Raj was that the claimant had no clinical hearing loss, of at least 40dB threshold.

Clinical examination

Both his ears were filled with hard wax, and the tympanic membrane was difficult to see. The rest of the ENT examination was unremarkable.
There was no nystagmus. Vestibular tests were not undertaken because of his neck condition. Previous vestibular investigations did not reveal any positive objective tests.
The claimant did not demonstrate any other positive vestibular signs on examination, such as gait abnormality, or a tendency to deviate when walking as observed by Medical Assessor Raj in the consultation rooms.

Tuning fork tests

On the tuning fork test, Rinne was positive. He could not hear the tuning fork on Weber’s test.
Medical Assessor Raj repeated the Rinne’s test when the tuning fork vibration had almost completely settled and the sound was just audible (as tested in his ear). He was still able to hear the markedly reduced sound of the tuning fork—again, this contradicts the severe hearing loss on the audiogram.

Audiogram

An audiogram was recorded as per the standards of AS 1269.
The claimant’s right air conduction thresholds were 65dB at 500 Hertz (Hz), deteriorating to 90dB at 4000 Hz.
His left air conduction thresholds were 75dB at 500Hz, deteriorating to 95-100 dB at 1500-4000Hz.
His right bone conduction thresholds were 45-50dB at 500-1000Hz, dropping to 75-80dB at 3000- 4000Hz.
His left bone conduction was 50dB at 500Hz, and no bone conduction thresholds were recorded beyond 1500Hz
The audiogram was not consistent with his clinical hearing loss. Clinically, the hearing was assessed at least 40dB.

Discussion after the audiogram

Medical Assessor Raj sought clarification from Mr Nicolaou regarding the inconsistencies he observed.
Inconsistencies included the ability to hear the reduced sound of the tuning fork, as well as inconsistencies between the audiogram and the clinical hearing as discussed above.
Mr Nicolaou answered that probably the dizziness and the other mental issues, which are overwhelming, might have contributed to the inconsistencies, and said he struggled to hear during the hearing test.
Medical Assessor Raj also asked the claimant how he would account for the poor hearing on the right side when the accident was low impact. Additionally, he mentioned to Dr Miller that his right hearing was okay. The claimant said that he probably lost hearing on both sides due to the loud bang, and he commented that he really cannot explain the inconsistencies and does not know what is going on.

Review of documentation undertaken by Medical Assessor Raj

Ambulance report

The ambulance record on the day of the collision noted it was a low-speed collision. No head injury or loss of consciousness was noted. There were no neurological signs.
Photographs in the documents furnished by the parties and photographs shown to Medical Assessor Raj by the claimant on his phone confirmed the denting and buckling of the rear corner of his vehicle on the driver’s side.

Bankstown-Lidcombe Hospital

Bankstown-Lidcombe Hospital records of 29 November 2018 relevantly recorded:
“Cranial Nerves- Eye movements normal, nil diplopia, visual fields normal, PEARL masseter tone and facial sensation normal, facial mm normal, hearing unchanged, uvula midline and nil hoarseness, accessory mm normal, tongue midline, speech normal.”
Medical Assessor Raj considered this to be a comprehensive examination and findings.

CT scan, 29 November 2018

A CT scan of the cervical spine on 29 November 2018 found no skull fracture and no intracranial injury.

GP consultation notes

On 1 December 2018, two days after the accident there was no report of hearing loss although in a certificate of capacity/certificate of incapacity Dr Aligiannis reported “Whiplash + ringing in the ears + headache = sensation of moving”.
In a certificate of capacity/certificate of incapacity dated 2 April 2019 Dr Aligiannis provided a diagnosis of “whiplash + ringing in the ears + headache + sensation of moving + vertigo + deafness left ear …”.
On 21 May 2019 a request for an ENT assessment for tinnitus and possibly hearing was made.

Prof Fagan, ENT specialist

In his report dated 21 October 2020 Prof Fagan stated that he was unable to obtain a reliable audiogram. The thresholds were inconsistent, and the word tests showed improvement without an increase in volume. His opinion was that his actual hearing was normal or near normal. He interviewed at conversational levels, which could only be understood by people with near normal or normal hearing.

Dr Howison, ENT surgeon

On 10 January 2020 Dr Howison reported the claimant did not suffer a head injury, and there was no loss of consciousness. The claimant developed ringing in the ear, which was immediately worse in the left ear.
He was exposed to construction noise for seven years before the accident.
Vestibular Function tests were normal.
His opinion was that the hearing loss in the right ear was due to previous noise exposure. The additional loss on the left and the tinnitus were due to the accident.
Dr Howison’s audiology showed the additional loss on the left was conductive rather than sensorineural.

Dr Justine Millar, ENT surgeon

On 13 August 2019 Dr Millar stated that the claimant had experienced reduced hearing in the left ear since the accident. His hearing on the right appeared to be unaffected. The reduced hearing in the left ear did not impact the claimant’s ability to communicate, as his right hearing was okay.
Dr Millar's subsequent report dated 1 October 2019 indicated that a hearing test conducted five months earlier revealed bilateral asymmetrical sensorineural loss, more severe on the left.
On 2 December 2019, Dr Millar opined, four months after the initial consultation, that the loss may be the result of the accident.
It is noted that hearing loss on the right did not exist at the time of the claimant’s consultation with Dr Millar.
Dr Millar reported the claimant had baseline dizziness with no clinical signs.

Dr Soh, neurologist

The claimant consulted Dr Soh on 18 April 2019, 19 May 2019 and 4 July 2019. He reported examination revealed a negative Hallpike's and no nystagmus.
Dr Soh considered the symptoms were a combination of left supraspinatus tear with the possibility of a C5/C6 left foraminal narrowing possibly exacerbated by the accident.

Dr Watson, neurologist

On 31 January 2020 Dr Watson neurologist reported the claimant had loss of balance, dizziness lasting for minutes to longer, about four or five times a week. It occurs when he walks or gets out of bed. Other triggering factors include watching television and a change of temperature (heat). Has photophobia and phonophobia.
He reported the vestibular tests were normal.
Dr Watson treated the dizziness as a migraine-related condition but not a condition due to vestibular pathology or head injury.
The claimant consulted Dr Watson on a number of occasions. He reported the Hallpike test triggered neck pain but no vertigo.
Dizziness triggered by escalators, stairs, looking up and train travel.
Dr Watson diagnosed vestibular migraine as a secondary injury to the cervical whiplash injury sustained in the accident. He did not diagnose vestibular pathology.

Audiology

8 May 2019 – Total Care Hearing reported bilateral sensorineural loss worse in the left ear. No conductive deafness. Losses at 30dB at 500-1000, dropping to 60-70dB at 4000Hz on the right and 40dB on the left, dropping to 60dB at 2000Hz and then 90dB at 4000Hz.
Dr Howison’s audiogram shows 30dB losses at 500-2000Hz. 60-70dB at 3000-4000Hz on the right and 40dB losses at 500Hz, gradually dropping to 80dB at 4000Hz (conductive deafness).
Spec Savers Audiology report dated 16 July 2020 shows losses of 50-60dB at 2000-5000 Hz, dropping to 80dB at 4000hz on the right. On the left, it is 60 dB at 500Hz, dropping to 80 dB at 2000Hz and 90 dB at 4000Hz.

Imaging

An MRI of the brain three weeks after the accident shows no intracranial issues.
The MRI IAC’s and brain dated 18 September 2019 was normal.

DETERMINATION

Diagnosis and causation

Hearing loss and tinnitus

The Panel adopts the findings of Medical Assessor Raj having regard to the history, the claimant’s clinical presentation, the audiograms, and other documentation.
Mr Nicolaou had no hearing loss before the accident, and nor was he aware of any hearing loss. He complained of ringing in the ears on 1 December 2018 but not hearing loss.
On 2 April 2019 Dr Aligiannis reported deafness in the left ear, but it was not until
Mr Nicolaou underwent a hearing test in May 2019 that bilateral sensorineural loss was revealed. If this is accurate, he must have developed the bilateral loss gradually over several years, allowing him to adapt to it and remain unaware. The only other plausible explanation is that the loss is congenital, meaning he managed it effectively and never realised he had hearing loss. The force required to produce such severe hearing loss after head injury is very severe and often associated with cerebral symptoms.
Mr Nicolaou said he suspected he had a hearing loss before the accident because he could not hear his wife sometimes. However, he reported to Dr Millar in August 2019 that he had no communication difficulty because his right hearing was fine.
When he was examined by Medical Assessor Raj the claimant did not show any clinical evidence of hearing loss. He reported he could watch television and follow programmes without increasing the volume on the television. He was softly spoken and was able to hear normal conversational noise. He could hear the low, audible noise of a tuning fork. He could hear Medical Assessor Raj when he lowered his voice.
The claimant’s audiograms have progressively deteriorated since the first audiogram in 2019. If the audiograms are correct, then his hearing loss is progressive. This is not consistent with injury sustained due to the accident, which is a one-time incident and would not result in progressive hearing loss.
His audiogram at the time of the examination by Medical Assessor Raj showed severe losses in both ears, worse than all the previous audiograms, and inconsistent with his clinical hearing.
Medical Assessor Raj reported the claimant said he was getting confused due to dizziness and his mental issues during the hearing test, even though it was a simple task of pressing a button when hearing a sound. It does appear that his mental status is affecting his capacity. This is more likely in a functional hearing loss.
Whilst Dr Howison diagnosed an additional loss on the left (conductive deafness) as a result of the accident, he has not explained the mechanism that could have caused the conductive deafness. The history does not suggest that there was any middle ear pathology, such as drum perforation or ossicular damage, following the accident and in any event the force of the whiplash would be unlikely to cause ossicular dislocation. Furthermore, in cases of ossicular dislocation, all frequencies would be affected, not just the mid-frequencies.
Dr Howison also diagnosed the high-frequency losses of more than 70db at 3000-4000hz as due to noise exposure of just seven years. He does not explain how such severe losses can occur in these frequencies after seven years. In noise exposure of this duration, it is more likely the loss will not, broadly speaking, exceed 25dB at 3000Hz and 30dB at 4000Hz.
The Panel considered it was unlikely the high tone loss is due to noise injury; it is more likely due to other non-diagnosed pathology unrelated to the accident.
Dr Fagan found that the claimant’s hearing was normal clinically, but the audiogram was not consistent with the clinical hearing. When he examined the claimant Medical Assessor Raj also considered the claimant’s clinical hearing was normal and not aligned with the audiogram.
Dr Fagan mentioned that the claimant’s hearing loss had been progressive. Progression of hearing loss does not typically follow trauma, as trauma usually results in a one-time loss. The audiograms since 2019 do show progression, particularly in the mid-frequencies, assuming those audiograms accurately reflect his true thresholds. This progression further indicates the presence of other pathology unrelated to the accident, which in all probability pre-existed the incident and showed up as bilateral sensory-neural loss in May 2019.
It is the clinical experience of Medical Assessor Raj that in some instances, chronic loss or congenital loss is often diagnosed after an incidental audiogram, and the loss of hearing comes as a surprise to the patient.
The Panel considers the report of Dr Millar to be non-contributory, except to indicate the claimant had hearing loss, which may be related to the accident, without providing an adequate explanation or excluding other possible causes.
Medical Assessor Williams indicated the claimant was able to hear the very soft tuning fork and that this was inconsistent with the audiogram. This was consistent with the findings of Medical Assessor Raj.
Medical Assessor Williams stated the claimant’s audiogram was inconsistent and the thresholds changed with retesting; he doubted the accuracy of the audiogram. This aligns with functional hearing loss, where hearing levels (his responses to tones) fluctuate depending on mental state. This was observed when assessed by Medical Assessor Raj, and notably when questioned about this inconsistency the claimant said that his dizziness and mental condition made it difficult to concentrate on the hearing test.
The cochlea is located in the strongest bone in the body—the temporal bone. To sustain a severe sensorineural loss, such as that shown in the audiogram, the cochlea would have to be subjected to severe force from a head injury, often associated with loss of consciousness, temporal bone fracture, and middle ear bleeding. If the eardrum perforates, there would be signs of perforation and bleeding. None of these occurred.
The claimant did not sustain a head injury. The severe bilateral loss does not align with the force involved in the accident. The slight additional loss on the left is also inconsistent with this injury. Furthermore, the accident could not have caused conductive deafness, as there was no evidence of middle ear injury. The Panel does not accept the opinion of Dr Howison that the claimant has sustained additional conductive deafness caused by the accident.

The clinical presentation is unlike that of a person with hearing loss, especially the claimant’s ability to hear normal conversational speech, the soft, almost inaudible tone of the tuning fork, being soft spoken, the variability of the audiograms, including the progression, and the inconsistency observed between the audiograms and the claimant’s clinical hearing. However, on the balance of probabilities the Panel finds the claimant had a mild pre-existing hearing loss. He was not aware of the hearing loss until he developed tinnitus associated with the neck injury following the accident and he was referred for a hearing test. At that time a hearing loss was identified.
On the balance of probabilities, the Panel finds the rear end collision at low speed with no impact to the head or neck was unlikely to cause or contribute to the worsening of the claimant’s hearing loss.
The Panel was unable to diagnose the presence of a hearing loss caused or materially contributed to by the accident. Indeed, the Panel is not satisfied that the accident was a more than negligible cause of the claimant’s hearing loss.

Tinnitus

The Panel finds the claimant developed tinnitus associated with a neck injury caused by the accident noting he first reported ringing in the ears to Dr Aligiannis on 1 December 2018, he referenced it in the Application for personal injury benefits dated 20 December 2018 and thereafter complained consistently of the symptoms of tinnitus.

Vertigo

Dr Penelope Aligiannis of Your Padstow Doctors Plus first recorded a complaint of dizziness on 1 December 2018. Mr Nicolaou has consistently complained of dizziness thereafter and has sought treatment. The dizziness is a general symptom, likely related to his neck. He shows no positive vestibular signs on examination, such as nystagmus, gait abnormality, or a tendency to deviate when walking.
There has been no objective finding of vestibular impairment in the clinical records since the accident. All vestibular function tests were normal when the claimant was examined by Blacktown Specialist Hearing and Balance Laboratory on 16 August 2019. Medical Assessor Williams did not find any positive vestibular signs such as nystagmus. Medical Assessor Raj concurred with those findings.
Dr Watson, neurologist noted the normal vestibular function tests and concluded the claimant was suffering from vestibular migraine associated with a cervical spine whiplash injury.
The Panel concurs with the opinion of Dr Watson and finds the claimant has sustained vestibular migraine secondary to injury to the cervical spine. There was no vestibular pathology.

PERMANENT IMPAIRMENT

The Panel has not assessed hearing loss where it has found any hearing loss was pre-existing and not caused by the accident.
The Panel has not assessed the tinnitus where cl 6.180 of the Guidelines provides that tinnitus is only assessable in the presence of hearing loss and both must be caused by the motor accident.
In accordance with cl 6.187 of the Guidelines and pages 228-229 of the AMA 4 Guides the assessment of impairment due to disorders of equilibrium including vertigo are dependent on objective findings of vestibular dysfunction. There is no objective evidence of vestibular dysfunction and accordingly there is no assessable impairment.

CONCLUSION

The Panel affirms the certificate of Medical Assessor Williams dated 9 July 2024.

[IMAGE UNABLE TO RENDER]

[2025] NSWPICMP 633

22 August 2025