QBE Insurance (Australia) Limited v Quigley
[2023] NSWPICMP 143
•14 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Quigley [2023] NSWPICMP 143 |
| CLAIMANT: | Robyn Quigley |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Brian Williams |
| DATE OF DECISION: | 14 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant sustained injury as a pedestrian on 30 April 2018; she sustained physical injury including bruising, injury to right shoulder, right arm, elbows and biceps, fracture of left elbow and injury to left foot; alleged suffered hearing loss and tinnitus as result of accident; dispute as to whether treatment, namely hearing aids, reasonable and necessary and whether related to injury sustained in the accident; claimant had history of chronic sinusitis, eustachian dysfunction and recurrent otitis externa in the context of work as a swimming instructor; Medical Assessor Howison determined the claimant had bilateral high tone sensori-neural hearing loss and required bilateral digital hearing aids as a result of the accident; Held – hearing loss not related to injury caused by the accident because no loss of consciousness, the claimant did not suffer a head strike, no abnormal Glasgow Coma Score, no record of fractured skull or fracture of the temporal bones and the claimant’s hearing loss is symmetrical; determined the claimant suffers from somatosensory tinnitus related to the physical injuries caused by the accident; hearing aids reasonable and necessary in the circumstances to mast the tinnitus and improve the recovery of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel affirms the certificate of Medical Assessor Kenneth Howison dated 15 September 2022. |
STATEMENT OF REASONS
INTRODUCTION
On 30 April 2018 Ms Robyn Quigley (the claimant) sustained injury as a pedestrian when she was hit by a 4WD vehicle with a large bull bar whilst crossing the road (the accident). Ms Quigley stated the collision pushed or threw her at least two to three metres and she landed heavily on the road on her left side.
AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to pay any damages to Ms Quigley under the Motor Accident Injuries Act 2017 (MAI Act).
On or about 14 June 2018 Ms Quigley lodged an Application for personal injury benefits.
On 22 July 2021 the insurer denied the request for approval of hearing aids on the basis the hearing aids were not reasonable and necessary treatment arising from the accident.
On 27 July 221 the claimant requested an internal review of the decision to decline the approval for hearing aids.
On 9 August 2021 the insurer issued a Certificate of Determination – Internal Review varying the decision. The insurer declined to approve funding for the hearing aids on the basis the hearing aids did not relate to the injuries caused by the accident. The insurer noted Ms Quigley had a history of chronic sinusitis with eustachian dysfunction and recurrent otitis externa with the left ear impacted more so that the right. The insurer notes symptoms of hearing less were reported approximately seven months prior to the accident.[1]
[1] Claimant’s Binder p 9.
On 26 August 2021 the claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[2].
[2] Section 7.20 of the MAI Act.
This dispute was assessed by Medical Assessor Kenneth Howison who issued a certificate dated 15 September 2022.
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment of Medical Assessor Howison on 17 October 2022 within 30 days of the date on which the certificate of Medical Assessor Howison was made available to the parties.
On 23 November 2022 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 Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission [3]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[3] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor[4].
[4] Section 41(2) of the PIC 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.[5]
[5] 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. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties on 2 December 2022 (the first Direction) which stated relevantly:
“In order to facilitate the just, quick and cost-effective resolution of the real issues in the Review, the Panel issues the following directions:
1.The Panel notes the claimant has uploaded to the portal an indexed and paginated bundle of documents (Claimant’s Binder). Unless advised otherwise the Panel assumes these documents are the entirety of the records relied upon by the claimant in this review.
2.The Panel notes the insurer has uploaded to the portal the insurers Application for Review Submissions, the Certificate of Medical Assessor Howison and the insurer’s Submission re the treatment dispute dated 20 September 2021 (A1). Unless advised otherwise the Panel assumes these documents, in conjunction with the records uploaded by the claimant, are the entirety of the records relied upon by the insurer in this review.
3.However, if either party wishes to upload any further records in support of the Review, they should do so in one indexed and paginated bundle by close of business 23 December 2022”.
The claimant subsequently uploaded to the portal on 23 December 2022 documents relating to the initial treatment dispute, the claimant’s late documents of 1 February 2022 and documents relating to the review application including the insurer’s application, and submissions and the claimant’s reply and submissions. These documents have been paginated from pages 1 to 725 and titled Claimant’s Binder and are the records referenced in these reasons for decision.
The Panel notes that there are extensive medical 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 treatment dispute pertaining to the provision of hearing aids.
TREATMENT – STATUTORY PROVISIONS
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
1. “(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
2. (a) The reasonable cost of treatment and care,
3. (b) Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
4. (c) If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
ASSESSMENT UNDER REVIEW
The dispute was referred to Medical Assessor Kenneth Howison[6]. In his certificate dated 15 September 2022 he certified hearing aids related to the injury caused by the accident, were reasonable and necessary in the circumstances and would improve the recovery of the claimant.
[6] Claimant’s Bundle p 674.
Medical Assessor Howison reported Ms Quigley hit the left side of her head on the ground, was knocked unconscious and taken to Albury Hospital. He reported she developed hearing loss and a static-like tinnitus two weeks after the accident. He reported Ms Quigley had no history of loss of hearing or tinnitus prior to the accident.
On examination Medical Assessor Howison found both tympanic membranes were normal and intact. Audiometry showed a bilateral high tone sensori-neural hearing loss. He found Ms Quigley required bilateral digital hearing aids as a result of the sensori-neural loss caused by the accident.
EVIDENCE BEFORE THE REVIEW PANEL
Claimant’s statement
Ms Quigley provided a statement dated 11 February 2021.[7] Ms Quigley states following the accident she had bruises all over her body including on her right thigh, right shoulder, right arm, elbows and biceps. She also sustained a fracture of her left elbow, and an injury to her left foot and subsequently experienced pain in her right shoulder.
[7] Claimant’s Binder p 14.
In her statement Ms Quigley states, she has suffered from tinnitus and hearing loss in her left ear due to the accident. She states the left-hand side of her head hit the ground when the accident occurred. Ms Quigley describes her hearing as muffled and states she had no problems with her hearing and did not suffer from tinnitus before the accident.
Application for personal injury benefits
The application is dated 14 June 2018 and provides the following outline of the injuries received:
“Hit my partner & self as we were crossing road (Ray (partner) only clipped & OK). I received cracked elbow and bone in my left foot & excessive bruising. After attending by ambulance to Albury Hospital.”[8]
Relevant pre-accident treating records
Clinical notes of Indigo Family Medical Centre
[8] Claimant’s Bundle p 553.
On 9 March 2016 Dr Deana Ashton reported “Works as a swim teacher- has chronic sinus problems from the chlorine … Taking intranasal steroids and has had a visit to the ENT surgeon.”[9]
[9] Claimant’s Bundle p 266.
On 3 October 2016 Dr Colin Cameron diagnosed left otitis externa.[10]
[10] Claimant’s Bundle p 262.
On 7 November 2016 Dr Ashton reported “problem with coloured nasal discharge/ popping ears/ left sided maxillary/ frontal sinus pain”. She diagnosed left sinusitis, maxillary.[11]
[11] Claimant’s Bundle p 261.
On 16 December 2016 Dr Cameron saw Ms Quigley in respect of a sore left ear ad sore throat. He diagnosed left otitis externa and pharyngitis.[12]
[12] Claimant’s Bundle p 261.
On 22 September 2017 Dr Cameron reported left otitis externa.[13]
[13] Claimant’s Bundle p 257.
On 7 February 2018 Dr Cameron diagnosed “bilateral mild otitis externa” and reported Ms Quigley was using otodex drops.[14]
[14] Claimant’s Bundle p 255.
On 23 February 2018- Dr Cameron recorded “also advised [sic] to stop cleaning out her ears!! Her canals are red raw and excoriated from constant harassment. leave the wax to build up and use the otodex to resolve the inflammation already apparent”.[15]
Northeast Health Wangarra Emergency
[15] Claimant’s bundle p 255.
An attendance summary dated 2 October 2017 records:
“Of note she has recently been treated for a left otitis externa. She has been on otodex drops for this, and this has been improving her symptoms of ear pain but she feels her hearing had declined over the weekend…
ENT- tender over mastoid and significant pain to light palpation from mastoid around to occiput. Left eardrum mildly bulging but no postauricular erythema or proptosis of ear…”
Centrelink Verification of medical conditions
A Centrelink Verification of medical conditions dated 2 March 2018 includes “chronic sinus infection with eustachian dysfunction” as an additional medical condition which impacts on the claimant’s capacity to work or study[16].
Post-accident treating records
Ambulance report[17]
[16] Claimant’s Bundle p 227.
[17] Claimant’s Bundle p 84.
The ambulance report records Ms Quigley was struck by a turning vehicle on 30 April 2018 at a speed of 20-30 kph. She was “struck on right buttock causing fall to left side of body”. She complained of tenderness and bruising to the left elbow, left lateral thigh, right buttock and left knee. The report notes nil “LOC”.
Albury Hospital
Ms Quigley presented to Albury Hospital as a pedestrian hit on the right side of the body and landed on the left side.[18] The Discharge Referral states:
“Pedestrian – hit by car at approx 30kmph. Hit to right side of body and landed on left side. Nil head strike/LOC/c-spine tenderness. C/o left elbow pain, abrasions to left leg and headache. The diagnosis was ecchymosis. With thanks for review and follow up. Pedestrian run into at low speed by car. Presents with bruising to arm, r buttock, pain to l leg and l elbow. Clinical left radial head fracture managed with sling”.
Clinical notes of Indigo Family Medical Centre
[18] Claimant’s Bundle p 72.
On 3 May 2018 Dr Cameron recorded the following:
“hit by car 30kph R side.
contusions. XR and CT abdo/pelvis nil significant
general aches/pains
using Endone 3 – 4 x /NSAID’s
still not fit for work at the moment”.[19]
[19] Claimant’s Bundle p 253.
On 10 May 2018 Dr Cameron recorded Ms Quigley was still achy over her back and lower neck although she was generally improving.
On 8 June 2018 Dr Cameron recorded
“ringing in ears since the accident.
High pitched buzzing. Bilateral, states it’s been going on sice the accident [sic]”
Dr Cameron also noted complaints of frontal headaches and bilateral tinnitus and reported “thinks she has hering loss [sic]”. Dr Cameron referred the claimant for a CT scan of the brain, middle ear/temporal bones.[20]
[20] Claimant’s Bundle p 252.
On 14 June 2018 Dr Cameron referred Ms Quigley to Dr Gliksman, ear, nose and throat specialist (ENT).[21] The referral letter states:
“Thank you for seeing Robyn Quigley who was a pedestrian hit by a car at about 30kph 6/52 ago. She was lucky to escape with just contusions and sustained only a minor bump to the head without LOC. She mentioned to me last week that since the accident she has had bilateral tinnitus and hearing loss. I could find no abnormality on exam. I arranged a CT brain/temporal bones (not done at the time of the accident) which was normal …”
[21] Claimant’s Bundle p 228.
Dr Gliksman, ENT
Dr Gliksman provided a report dated 12 September 2018 where he stated:
“Robyn attended today due to bilateral tinnitus, post head injury, a few weeks ago. LOC noted. Normal CT brain and temporal bones. …
Impression: ? Cochlear concussion bilaterally/ concussion syndrome as a cause of tinnitus”[22].
[22] Claimant’s Bundle p 316.
Dr Gliksman provided a report dated 1 November 2021.[23] He stated at the time of his only consultation with Ms Quigley she was clear that prior to the injury she had no tinnitus. He said tinnitus can occur even post minor head injuries. He further commented:
“The insurers reference a report from Wangaratta emergency Department dated 2/70/2017 of left otitis externa and a decline in hearing at that stage. With regards to otitis externa this is an incredibly common condition and it is not uncommon for hearing decline when one develops otitis externa. On my examination there was no evidence of otitis externa. I do not believe this is a cause for tinnitus in this circumstance.
The patient was known to have chronic rhinosinusitis and possible eustachian tube dysfunction from previous history. This is not a cause of non-pulsatile tinnitus.
At all subsequent consultations with Dr Fogarty dated March 2019 as well as with the audiologist dated 22 June 2021 the above patient attributes the tinnitus to the head injury she sustained. Audiological assessment dated 22 June 2021 shows evidence of age related hearing decline. There is [sic] been no significant decline since my original audiological assessment dated 12 September 2018. This may be a cause for non-pulsatile tinnitus
To assign blame to the head injury as a cause of tinnitus is quite plausible and reasonable. The patient was quite clear that there was no tinnitus prior to the injury.
Tinnitus is a rather distressing symptom and all measures should be done to try and alleviate it. A trial of hearing aid placement is reasonable and I tend to agree with Dr Foqarty as well as the audiologists prescription of them.”
Dr Gerald Fogarty, ear, nose, throat, head and neck surgeon
[23] Claimant’s Bundle p 681.
On 26 March 2019 Dr Fogarty reported Ms Quigley had distressing fluctuating bilateral tinnitus following her head injury. He reported her puretone audiogram showed a bilateral higher frequency sensonneural change which was symmetric and normal tympanometry.[24]
Kathy Currie, audiologist
[24] Claimant’s Bundle p 324.
In a report dated 22 June 2021 Ms Currie states:
“Robyn reports a history of tinnitus and hearing loss, more noticeable in the left ear. She reports the onset of tinnitus and hearing loss 3 years ago following an accident …
Pure tone audiometry revealed a mild sloping to severe predominantly sensorineural hearing loss bilaterally, with a significant asymmetry (left worse) …
Speech testing showed speech discrimination is consistent with the hearing levels. Tympanometry, a test of middle ear function revealed normal middle ear function bilaterally.
Given the audiometry results hearing aids are recommended to assist in daily listening activities, masking tinnitus and returning to work as a swimming instructor”.[25]
SUBMISSIONS
[25] Claimant’s Bundle p 526.
Insurer’s submissions
The insurer provided submissions dated 20 September 2021 in respect of the initial treatment dispute.[26] The insurer noted the following entries of relevance in the records of Indigo Family Medical Practice:
(a) 9 March 2016 - “Works as a swim teacher- has chronic sinus problems from the chlorine … Taking intranasal steroids and has had a visit to the ENT surgeon.”
(b) 3 October 2016 - “Left otitis externa”.
(c) 7 November 2016 - “problem with coloured nasal discharge/ popping ears/ left sided maxillary/ frontal sinus pain”.
(d) 16 December 2016 - “Left otitis externa”
(e) 7 February 2018 - “bilateral mild otitis externa”.
(f) 23 February 2018 - “alsoadvised [sic] to stop cleaning out her ears!! Her canals are red raw and excoriated from constant harassment. Leave the wax to build up and use the otodex to resolve the inflammation already apparent”.
[26] Claimant’s Bundle p 707.
The insurer also referred to the Attendance Summary of Northeast Health Wangarra Emergency dated 2 October 2017 where the claimant reportedly referred to a decline in her hearing over the weekend and the Centrelink record of 2 March 2018 which referred to a “chronic sinus infection with eustachian dysfunction”.
The insurer submitted the contemporaneous documents do not record the claimant suffered a head strike or any loss of consciousness in the accident. Neither the hospital discharge summary or the ambulance report document any head injury and the hospital discharge summary specifically states, “nil head strike”.
The insurer notes the description of the accident in the Application for personal injury benefits which does not mention any head strike or loss of consciousness.
It is further noted that no mention was made of any ear condition or head injury in the Application for personal injury benefits completed on 14 June 2018, six weeks after the accident.
The insurer notes that neither Dr Fogarty, Dr Gliksman or Ms Currie were appraised of the pre-accident history of ear and sinus conditions in the context of the claimant’s work as a swim instructor.
The insurer also notes that whilst Dr Cameron referred to a “minor bump to the head without LOC” in his referral to Dr Gliksman, there is no mention of a head injury in the post-accident consultation with Dr Cameron or in the ambulance report, or the hospital discharge summary.
The insurer notes the audiometry results reported by Dr Fogarty and Ms Currie show bilateral sensorineural change which indicates bilateral damage to the vestibulocochlear nerves. However, the insurer submits bilateral vestibulocochlear nerve injury is not consistent with the injuries sustained in the accident, noting there are no records of any head injury.
The insurer provided submissions dated 17 October 2022 in support of the application for review.[27]
[27] Claimant’s bundle p 696.
The insurer submits Medical Assessor Howison failed to address the question of causation of the injuries alleged in the accident, outlined in the insurer’s initial submissions.
The insurer submits Medical Assessor Howison failed to consider the claimant’s pre-existing injuries, in particular her history of chronic sinusitis, Eustachian dysfunction and recurrent otitis externa in the context of her work as a swimming instructor.
The insurer submits the condition of otitis externa was reported to be associated with hearing loss when she attended hospital approximately seven months prior to the accident.
Claimant’s submissions
The claimant provided submissions dated 7 November 2022 in reply to the insurer’s application for review.[28]
[28] Claimant’s Bundle p 713.
The claimant notes she presented to Dr Gliksman on 12 September 2018 reporting severe and persistent tinnitus which had developed post-accident and which she had not experienced before the accident. Dr Gliksman recorded an impression of cochlear concussion syndrome. An audiology test the same day revealed bilateral hearing loss.
The claimant submits following a worsening of her hearing loss and tinnitus she consulted Dr Fogarty. The claimant notes Dr Fogarty reported (with emphasis added):
“Clinically her tympanums are normal. Her puretone audiogram shows a bilateral higher frequency sensorineural change which is actually quite symmetric, and tympanometry is normal”.
The claimant sought further treatment from Ms Currie, audiologist. The claimant notes in her report dated 22 June 2021 she reported (with emphasis added):
“Pure tone audiometry revealed a mild sloping to severe predominantly sensorineural hearing loss bilaterally, with a significant asymmetry (left worse). Robyn reported that the asymmetrical nature of her hearing loss has been investigated by an ENT Specialist following the accident. Speech testing showed speech discrimination is consistent with the hearing levels. Tympanometry, a test of middle ear function revealed normal middle ear function bilaterally. Given the audiometry results hearing aids are recommended to assist in daily listening activities, masking tinnitus and returning to work as a swimming instructor”.
The claimant submits the pure tone audiometry testing by Ms Currie is markedly different to the testing performed by Dr Gliksman in 2018 making it evident that the claimant’s hearing loss has worsened and become particularly severe on the left side.
The claimant relies upon the report of Dr Gliksman dated 1 November 2021 who reported he found no evidence of otitis externa and did not believe it was a cause for the tinnitus. He also reported whilst Ms Quigley was known to have chronic rhinosinusitis and possible eustachian tube dysfunction from her previous history it was not a cause of non-pulsatile tinnitus.
The claimant also submits it is surprising the insurer raises an issue of causation in respect of the tinnitus symptoms which only appear in the post-accident records. The claimant submits there is no record of any complaint of tinnitus pre-accident and notes Dr Gliksman, Dr Fogarty and Ms Currie have all treated the claimant for hearing loss and tinnitus post-accident.
The claimant’s submissions otherwise address the question to be determined by the Delegate, that is, whether the medical assessment of Medical Assessor Howison was incorrect in a material respect.
THE MEDICAL EXAMINATION
Ms Quigley attended for examination on 28 March 2023. She was accompanied by Raymond Whybrow.
At the beginning of the appointment Medical Assessor Williams explained to Ms Quigley that she had been referred for the purposes of an independent medico-legal examination in regard to a motor accident claim. Ms Quigley understood that Medical Assessor Williams was not her treating doctor and was not able to give her any advice. She agreed.
History
History of the accident
Ms Quigley said she was on her way to a funeral walking across a highway. She said a 4 wheel drive vehicle (D-max) with a bull bar came out of a side street and the left side of the bulbar hit her. She said she put up her right arm and fell onto her left side, hit her head on the road on the left hand side and was unconscious for 1 minute.
Medical Assessor Williams pointed out that the ambulance report records no loss of consciousness and Albury Hospital has no record of a head strike or loss of consciousness. He said she definitely had sustained a loss of consciousness.
She said she was transported to Albury Hospital and stayed for 12 hours. She had a fractured left elbow and no fractured skull. She said she went home and saw Dr Cameron two days later and complained of being sore all over, sore head, haematoma on the right trunk and right upper leg. She said she saw Dr Cameron or the attending nurse daily for three weeks then once every two to three weeks.
Ms Quigley said she was treated with Endone, Tramadol, Oxycontin, Panadeine Forte for right shoulder pain, right trunk and right leg pain, left foot pain, left elbow pain, left side of head and neck was sore.
She said she had a right shoulder operation on 25 January 2023.
Hearing Loss
74. Ms Quigley gave no history of hearing loss prior to the accident. She said about two months after the accident she noted hearing loss. She reported it is gradually getting worse or she is more aware of it. She said the right is equal to the left. She said without hearing aids she has difficulty hearing conversation, has difficulty hearing in background noise and needs to increase the volume of the television above others. She said now she is not socialising because of her hearing loss. She said it interferes with her daily activities because it is difficult to hear in the pool. She is no longer working with groups of children because of the hearing loss. She said the left is worse than the right. She said she obtained hearing aids about 2.5 years ago on the pensioner program. She said they help her hearing and tinnitus.
Tinnitus
Ms Quigley gave no history of tinnitus prior to the accident. She said her tinnitus began about three weeks after the accident. The tinnitus was associated with a sore left head, neck and left shoulder pain after her painkillers were reduced. She said she has a ringing in her left ear like a high pitched constant static or cicadas, and it is worse when in quiet surroundings. She said it is non pulsatile. She said it also affected her right ear about eight weeks after the accident when she returned to work as a swimming teacher.
She said she discussed her tinnitus with Dr Cameron within three months of the accident. She said he told her to listen to the radio and it should improve. She was referred to an ENT specialist. She said she was told to “go home and turn up the radio” which helps sleep but she can’t get back to sleep she said. She said she was referred to Dr Fogarty, ENT specialist. She said that he agreed it can be caused by a head blow and treated her with pensioner hearing aids which she said helped although she said she can’t stand the ear insert moulds. She said she can hear better with the hearing aids. She said she has also tried hypnosis which helped for 48 hours. She has now seen two ENT specialists. She said her tinnitus interferes with sleep induction for up to four hours most nights and getting back to sleep for one to two hours most nights. She said she now takes a sleeping tablet.
Ms Quigley said her tinnitus is now bilateral and constant.
Occupational history
Ms Quigley said she tried to go back to work full time in December 2019, but she could not hear the class. She was off work after the accident for eight weeks then gradually returned to work.
At the time of the accident Ms Quigley had worked as a swimming teacher for 15 years. She also worked in a cattery providing care for 10 cats and 20 kennels for 26 years. She said she did maintenance around the cattery and kennels. She was exposed to the noise of dogs barking in the outdoor kennels. She mowed the lawns with a mower for about two hours a week with hearing protection, although her partner did the whipper snipping. She said he had to raise his voice to have a conversation with her when he was one metre away from her whilst mowing the lawn.
Past history
Ms Quigley has a history of cervical cancer treated with surgery and radiotherapy. She said she has not had chemotherapy.
She gave no history of hereditary deafness. She gave no history of direct ear or head trauma or blast injury prior to the accident. She gave a history of otitis media on and off every 1.5 years from swimming with no effect on her hearing or tinnitus. She gave no history of ototoxic exposure. She gave no history of Military Service or recreational noise exposure. She gave a history of otalgia (ear pain) or otorrhoea (ear discharge) as above. She gave no history of ear surgery.
Ms Quigley gave a history of raised cholesterol and hypertension both treated with tablets. She gave a history of mumps with no effect on her hearing. She gave no history of heart disease, stroke, diabetes, thyroid disease, meningitis or measles. She gave a history of seasonal allergic rhinitis and asthma both treated in summer. She gave no history of nose operations. She gave no history of other motor vehicle accidents. She said she has smoked 5 to 10 cigarettes per day for about 30 years.
She said her medications now are Somac, cholesterol tablets, blood pressure tablets, Panadol osteo (2 x 4 per day), magnesium and Melcian for arthritis.
CLINICAL EXAMINATION
On examination Medical Assessor Williams observed the following:
Ears
Otomicroscopy
Right ear
Her right external auditory canal is normal.
Her right tympanic membrane is intact.
Left ear
Her left external auditory canal is normal.
Her left tympanic membrane is intact.
Weber test
Using the 512Hz tuning fork her Weber test was central.
Rinne test
Using the 512Hz tuning fork her Rinne test is positive bilaterally.
Throat
Her oropharynx is normal.
She had no cervical lymphadenopathy.
Audiogram
Medical Assessor Williams performed pure tone audiometry on 28 March 2023 in a suitable sound attenuated environment, being a sound proof booth, with a calibrated audiometer. Ms Quigley’s responses were repeatable and Medical Assessor Williams considered accurate auditory thresholds were obtained. Her pure tone audiogram showed a bilateral sensorineural hearing loss maximal in the high frequencies.
PANELS DETERMINATION
The Panel is not satisfied the claimant’s hearing loss relates to injuries caused by the accident for the following reasons:
(a) the claimant did not sustain a loss of consciousness at the time of the accident. Notwithstanding the assertion by Ms Quigley to Medical Assessor Williams that she had definitely sustained a loss of consciousness the Panel is not satisfied she did so where the ambulance report specifically notes “nil LOC” where the Discharge Referral of Albury Hospital states “Nil head strike/LOC…” and where no record was made by Dr Cameron of Indigo Family Medical Centre on 3 May 2018 of a loss of consciousness caused by the accident;
(b) the claimant did not suffer a head strike at the time of the accident. Notwithstanding the history provided by Ms Quigley to Medical Assessor Williams that she hit her head on the road on the left hand side the Panel does not accept the accuracy of that history where the ambulance report makes no reference to a head strike, where the Discharge Referral of Albury Hospital states “Nil head strike”, and where no record was made by Dr Cameron on 3 May 2018 of a head strike;
(c) there is no record of an abnormal Glasgow Coma Score in the ambulance report or the Hospital records following the accident;
(d) there is no record of a fractured skull or fracture of the temporal bones in the ambulance report or the hospital records following the accident, or in the treating doctors clinical records following the accident; and
(e) the claimant’s hearing loss is symmetrical. In the experience of the Panel hearing loss caused by trauma is not usually symmetrical.
The Panel finds the claimant suffers from somatosensory tinnitus related to the physical injuries and associated pain sustained as a result of the accident.
The Panel finds the claimant’s tinnitus does relate to injuries caused by the accident for the following reasons:
(a) the claimant did not have tinnitus before the accident, but she had it after the accident;
(b) the claimant sustained physical injury in the accident;
(c) on 8 June 2018 Dr Cameron reported complaints of tinnitus since the accident;
(d) the claimant was referred to Dr Gliksman, ENT specialist who noted the bilateral tinnitus since the accident;
(e) the claimant was referred to a second ENT specialist, Dr Fogarty in respect of the fluctuating bilateral tinnitus experienced by the claimant since the accident;
(f) the claimant has tried hypnosis for her tinnitus;
(g) the claimant has used pensioner hearing aids which have alleviated her tinnitus, and
(h) tinnitus is not caused by otitis externa, chronic rhinosinusitis or eustachian tube dysfunction.
The Panel finds that hearing aids are reasonable and necessary in the circumstances. Hearing aids, in particular hearing aids with sound generated capability, will improve the claimant’s tinnitus by increasing the sound going into the ear, masking the tinnitus and resulting in a reduction in the level of tinnitus experienced by the claimant. The literature shows that there is a 70% chance that the use of hearing aids will improve tinnitus. The claimant reported that the use of the pensioner hearing aids had improved her tinnitus. The Panel finds hearing aids will improve the recovery of the claimant.
Having regard to the Panel’s determination that the tinnitus was caused by the accident the Panel finds the need for hearing aids to treat the claimant’s tinnitus relates to the injury caused by the accident.
CERTIFICATION
99.The Panel affirms the certificate of Medical Assessor Howison dated 15 September 2022.
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