QBE Insurance (Australia) Limited v Zadeh
[2023] NSWPICMP 451
•13 September 2023
| DETERMINATION OF REVIEW PANEL | ||
| CITATION: | QBE Insurance (Australia) Limited v Zadeh [2023] NSWPICMP 451 | |
| CLAIMANT: | Sayed Zadeh | |
INSURER: | QBE Insurance (Australia) Limited | |
| REVIEW PANEL | ||
| MEMBER: | Gary Victor Patterson | |
| MEDICAL ASSESSOR: | Brian Williams | |
| MEDICAL ASSESSOR: | Margaret Gibson | |
| DATE OF DECISION: | 13 September 2023 | |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury on 1 April 2019; the dispute related to causation of right-sided hearing loss and tinnitus; claimant confirmed that he did not suffer any head trauma; also confirmed that his airbags did not deploy, thus absence of loud noise; Held – Panel not satisfied that tinnitus, loss of hearing in right ear were caused by subject motor accident; no need to decide whether threshold injury; the Panel revokes the certificate dated 2 December 2022. | |
| DETERMINATIONS MADE: | CERTIFICATE The Review Panel revokes the certificate dated 2 December 2022 and issues a new certificate determining that:
| |
STATEMENT OF REASONS
INTRODUCTION
Sayed Zadeh (the claimant) was 48 years of age at the time of the subject motor accident on 1 April 2019 (the accident). He was driving his Toyota Corolla in the left lane of a two-lane road in Granville. The insured vehicle turned in front of him from the other side of the road. The claimant was wearing a seatbelt. He did not see the insured vehicle turn in front of him because of stationary traffic in the inside lane. The right-side bumper of the claimant’s vehicle collided with the front of the insured vehicle. The windscreen of the claimant’s vehicle was broken. He was able to self-extricate from his vehicle. No ambulance was called.
The claimant says that he suffered various other physical injuries, with psychological overlay, as a result of the accident. Medical Assessor Nigel Minogue certified on 15 March 2022 that those physical injuries were minor injuries for the purposes of the Act. Medical Assessor Glen Smith certified on 12 July 2021 that the claimant’s psychological condition was a minor injury for the purposes of the Act. Those certificates were accepted by the parties and are not the subject of this review. Both of the Medical Assessors record they were told by the claimant that his airbags did not deploy in the accident.
The claimant says that he became aware of a noise in his right ear immediately after the accident. He says the noise is intermittent and lasts for a few minutes at a time. The claimant also says that he has a sensation of blockage in the right ear since the accident. He claims to have suffered accident-related hearing loss, in his right ear, with tinnitus.
QBE (the insurer) insured the owner and/or the driver of the vehicle at fault for liability to pay to the claimant any damages under the Act.
Medical Assessor Nigel Menogue certified on 15 March 2022 that the following injuries were caused by the motor accident:
(a) cervical spine, and
(b) lumbar spine.
are MINOR INJURIES for the purposes of the Act.
Medical Assessor Glen Smith certified on 12 July 2021 that the following injury was caused by the motor accident:
(a) adjustment disorder with mixed anxiety and depressed mood
is a MINOR INJURY for the purposes of the Act.
Those certificates were accepted by the parties and are not the subject of the current review.
There is a dispute between the claimant and the insurer about whether the claimant suffered right-sided tinnitus and/or hearing loss in the right ear which is not a MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017 (the MAI Act).
THE REVIEW
The claimant was referred for assessment by Medical Assessor Robert Payten. He saw the claimant on 24 October 2022 and found that the following injuries WERE caused by the motor accident:
· mild right-sided sensorineural hearing loss and slight left-sided sensorineural hearing loss. he also has mild right-sided tinnitus which is intermittent and short lived.
Medical Assessor Payten certified as follows:
The following injuries caused by the motor accident:
Right-sided tinnitus, hearing loss in the right ear
is Not a MINOR INJURY for the purposes of the Act.
Attached to the Certificate is a diagrammatic representation of an Audiogram performed by Medical Assessor Payten.
The insurer sought a review of Medical Assessor Payten’s Certificate on the basis that the assessment was incorrect in a material respect within the meaning of s 7.26 of the MAI Act. It was submitted that Medical Assessor Payten:
· failed to engage with evidence provided by the parties;
· failed to identify and put inconsistencies to the claimant, and
· failed to provide adequate reasons.
As to the alleged failures to engage with the evidence and to put inconsistencies to the claimant, the nub of the insurer’s submissions is that Medical Assessor Payten ignored, or did not consider, documented evidence of the claimant’s having pre-existing hearing loss in his right ear before the subject accident. The insurer submits that Medical Assessor Payten’s acceptance that:
“….. prior to the subject accident, he had never suffered from any symptoms and in particular, had no tinnitus and no vertigo or hearing loss….. has never suffered a head injury…. “
is contrary to the evidence.
As to the alleged failure to provide adequate reasons, the insurer submitted that Medical Assessor Payten failed to provide adequate reasons with respect to his diagnosis and opinion on causation, including why he elected not to engage with the pre-accident history, the post-accident delay or the use he made of the clinical evidence at all. The insurer further submits that Medical Assessor Payten fails to adequately explain the path of his reasons leading to the determination made.
The insurer’s application for review was opposed by the claimant. Detailed submissions were made for the claimant in response to the insurer’s submissions. Broadly, the claimant submitted that the insurer failed to establish there is reasonable cause to suspect error in the replacement certificate of Medical Assessor Payten. There is no utility in summarising the claimant’s submissions as they were not accepted.
President’s delegate Tami O’Carroll issued a Determination of an Application for Review of a Medical Assessment on 7 February 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that Medical Assessor Payten’s assessment was incorrect in a material respect. The basis of that decision was stated to be that the Medical Assessor did not provide more expansive reasons regarding causation of the injuries. In particular, he did not address the issue of pre-accident ear complaints and hearing loss.
The following matters have been referred to the Panel for determination:
Minor injury (Review)
Injuries: Body Area: Hearing loss/balance
Injury description: ENT – Tinnitus, loss of hearing in the right earThe Panel considered that it would be assisted by the provision of any evidence of hearing loss caused by the 2005 motor vehicle accident. Medical Assessor Payten noted that an audiogram performed on 6 November 2005 showed normal hearing in the left ear and inconsistent responses in the right ear. Medical Assessor Payten observed that a reliable audiogram for the right ear was not obtained.
Statutory provisions
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application. [2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned. [3]
[3] Section 7.26(6) of the Act.
All members of the Panel had no previous involvement with the claimant or with this matter.
The application for referral of the medical assessment of Medical Assessor Robert Payten was made by the insurer within 28 days after the parties were issued with the original certificate for which review is sought.
Threshold injury
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(2) of the Act defines a “soft tissue injury” as:
“(A)n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membrane), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci, or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft-tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
a.comprehensive accurate history, including pre-accident history and pre-existing conditions;
b.a review of all relevant records available at the assessment;
c.a comprehensive description of the injured person’s current symptoms;
d.a careful and thorough physical and/or psychological examination;
e.diagnostic tests available at the assessment.
Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination’.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
· Application for personal injury benefits dated 1 May 2019 (A1);
· Certificate of Capacity dated 1 May 2019 (A2);
· correspondence between the claimant’s solicitors, the insurer and the insurer’s solicitors relating to minor injury and hearing loss (A3 – A6);
· clinical notes of NAS Advanced Medical from April 2004 to July 2021 (A7);
· submissions dated 1 June 2022 which refer to a report dated 1 March 2022 by Ms Leyla Er, audiologist, provides an opinion on hearing loss in the right ear, which included right ear tinnitus, and references a closed head injury on the right side, allegedly suffered in the motor accident;
· report dated 1 March 2022 by Ms Leyla Er, audiologist;
· audiometry report performed on 1 March 2022;
· submissions dated 25 January 2023, and
· replacement certificate of Medical Assessor Payten.
The Panel notes that the claimant’s documents A1 and A2 contain no reference to hearing loss. The clinical notes (A7) contain references to a motor vehicle accident on 24 May 2005 in which the claimant suffered inter alia concussive head injury, resulting in post-traumatic stress headaches and pressure in both ears. There is no reference to hearing loss.
The insurer relied upon the following material:
· insurer’s index of documents dated 31 May 2023 (R1);
· insurer’s Review Application Submissions dated 22 December 2022 (R2);
·
Determination of an Application for Review of a Medical Assessment dated
7 February 2023 (R3);
· insurer’s threshold injury submissions dated 29 June 2022 (R4);
· Application for Personal Injury Benefits dated 1 May 2019 (R5);
· correspondence from the claimant’s solicitors re Hearing Loss dated 11 March 2022 (R6);
· QBE Decision (Threshold Injury – Hearing Loss) dated 22 March 2022 (R7);
·
Internal Review Determination (Threshold Injury - Hearing Loss) dated
25 March 2022 (R8);
· Certificate of Medical Assessor Glen Smith (Threshold Injury – Psychological) dated 12 July 2021 (R9);
· Certificate of Medical Assessor Nigel Menogue (Threshold Injury – Physical) dated 15 March 2022 (R10);
· insurer’s obvious errors submissions dated 29 November 2022 (R11);
· Replacement Certificate of Medical Assessor Robert Payten (Threshold Injury – Hearing) dated 2 December 2022 (R12);
· records of NAS Advanced Medical Centre – dated various (R13);
· insurer’s Application to Admit Late Documents dated 31 May 2023 (R14);
· letter to the Commission dated 31 May 2023 (R15);
· letter to Drexler Litigation Lawyers dated 31 May 2023 (R16);
· Certificate of Capacity dated 18 July 2019 (R17), and
· general practitioner’s questionnaire dated 19 July 2019 (R18).
The Panel notes a report dated 15 October 2007 by Dr Costa, Occupational Health Consultant, to Keddies Litigation Lawyers (at pages 421 to 427 of the insurer’s bundle). That report refers to a motor accident in March 2005 in which the claimant suffered a right sided head injury. The claimant informed Dr Costa that his hearing was reduced and he had tinnitus. The Panel was unable to locate a report from the treating ENT surgeon. Nevertheless, the Panel is satisfied that the claimant suffered a pre-existing condition of hearing loss and tinnitus.
RE-EXAMINATION
Report from Medical Assessor Brian J Williams is as follows:
“HISTORY OF MOTOR VEHICLE ACCIDENT on 1.4.2019
He said he was driving his car, a Toyota Corolla, and wearing a seatbelt. He said he was in the left lane of a 2 lane road in Granville. He said another car turned in front of his car from the other side of the road. He said the inside lane on his side of the road was stationary – he could not see the car turn in front of him. He said his right side bumper collided with the front of the other car. He said his bonnet was up and the right bumper bar fell onto the road.
He said he took his seat belt off and exited the car. He said no airbags were deployed. He said he had no head strike, no bleeding from the ears, no bleeding from the nose, no loss of consciousness and no lacerations, bruising or abrasions on the face or head. He said no ambulance came and he was not taken to hospital by ambulance. He said a friend came and drove him home. He said his car was towed away.
He said at home after the MVA that day he had pain in his back, abdomen and neck and headache. He said he took pain killers. He said he saw the GP the next day and complained of pain in his back, neck and abdomen and headache. He said he was referred for X-Rays, and ultrasound and physiotherapy. He said he had no fractures.
He said 2-3 weeks after the MVA his right ear felt blocked associated with a headache and reduced hearing in the right ear. He said he obtained a right hearing aid last year, which he said helps his hearing.
When asked specifically about airbag deployment he said no airbags went off.
When asked specifically about right hearing loss before the MVA on 1.4.19 which Dr Selim recorded in 2004 and 2005 – he said that is not true. He said Dr Youseff Buboli cleaned his ear by syringing in both ears and his hearing improved. I said there is no mention of earwax. He said he had cleaning of the ears.
When asked specifically about an ENT Specialist doing an audiogram after the MVA in 2019 – he said he can’t remember if he saw an ENT Specialist. He said he thinks he had a scan of his head after the MVA. He said he can’t remember the type.
MVA in 2005
He said he had an MVA in 2005. He said he was driving a car and a truck hit the side of his car. He said his hearing was not affected in the MVA. He said he never made a claim for hearing loss. When asked specifically about a claim for hearing loss he said he did not make a claim for hearing and he did not have any hearing loss.
Hearing Loss
He said he had no hearing loss prior to the MVA on 1.4.2019. He said his left hearing is normal and only the right ear was affected by the MVA on 1.4.2019. He said without his right hearing aid he has difficulty hearing conversation and turns his better left ear to hear and has difficulty hearing in background noise. He said he does not need to increase the volume of the television above others. he said he obtained a right hearing aid in 2022.
Tinnitus
He gave no history of tinnitus prior to the MVA on 1.4.2019. He gave a history of a hissing sound 2 weeks after the MVA in the right ear only. He said it occurs 1-2 times a day and lasts 1-2 minutes. He said it does not interfere with his daily activities during the day and does not interfere with sleep induction at night. He said he has discussed his tinnitus with his GP, Dr Dowla, and an ENT Specialist.
· Whether or not the 2019 motor accident caused the airbags in his vehicle to activate.
He said airbags were not activated.
· If ‘yes’, does he have any documentary, or other objective evidence, to establish that?
Not applicable
· Did he attend an ENT specialist at any time after his 2005 motor accident?
He said no.
· Did he suffer hearing loss and/or tinnitus in his right ear before and/or after the 2005 motor accident?
He said no.
· If ‘yes’, did he receive any treatment for either condition? If so, when and by whom?
He said after the 2005 MVA he did not make a claim for hearing loss or tinnitus.
· To what extent, if at all, has his hearing loss and/or tinnitus deteriorated since the 2019 motor accident?
He said before the MVA in 2019 he had no hearing loss and no tinnitus.
OCCUPATIONAL HISTORY
· He said he is not working now and has not worked since the MVA of 2019.
· On 1.4.19 (date of MVA) unemployed and looking for a job.
· Cleaner/Security Guard for 1 year in 2016 in NSW.
· Factory Hand in NSW for 2 years, 2003-2005
oPrimo Small Goods, Chullora, NSW, as a Machinist. He said he was exposed to the noise of making sausages and meat. He said he worked in packaging. He said his shift was 8 hours per day 5 days per week. He said he did not have to raise his voice to have a conversation at 1 metre. He said hearing protection was worn.
· In Queensland, a Farm Hand for 2 years collecting food and putting it on a truck. He gave no history of noise exposure.
· He said in 1999, age 25 years, he migrated from Afghanistan where he was a Shopkeeper. He gave no history of noise exposure. He gave no history of bombing. He said he has not fired a rifle.
PAST HISTORY
He gave no history of hereditary deafness. He gave no history of blast injury. He gave no history of otitis media or ototoxic exposure. He gave no history of Military Service or recreational noise exposure. He gave no history of otalgia (ear pain) or otorrhoea (ear discharge). He gave no history of ear surgery.
He gave no history of heart disease, stroke, diabetes, thyroid disease, raised cholesterol, hypertension, meningitis, allergic rhinitis or asthma. He gave no history of motor vehicle accidents other than the one in 2005. He said he is a non smoker. He said his medications are Panamax, Mobic and anti-depressant.
CURRENT SYMPTOMS
Please see above.
HOBBIES
No.
EXAMINATION
On examination I observed the following:
Ears
Otomicroscopy
Right Ear:
His right external auditory canal is normal.
His right tympanic membrane is intact but has posterior tympanosclerosis.
Left Ear:
His left external auditory canal is normal.
His left tympanic membrane is intact.
Weber Test: Using the 512Hz tuning fork his Weber test lateralised to the left.
Rinne Test:Using the 512Hz tuning fork his Rinne test is positive bilaterally.
Nose
Anterior rhinoscopy is normal.
Throat
His oropharynx is normal.
He had no cervical lymphadenopathy.
Audiogram
My pure tone audiometry was performed on 25.7.23 in a suitable sound attenuated environment, being a sound proof booth, with a calibrated audiometer. His responses were repeatable and I considered accurate auditory thresholds were obtained. His pure tone audiogram showed a bilateral sensorineural hearing loss maximal in the high frequencies with right worse.
Impedance audiometry showed a Type AS graph on the right and a Type A graph on the left graph with intact acoustic reflexes at 0.5, 1 and 2kHz.
My audiogram in tabular form
| Date of MVA: | Frequency Hz | Left dB HL Air Bone | Right dB HL | ||
| 1.4.2019 | 500 | 15 | 10 | 20 | 15 |
| 1000 | 15 | 10 | 20 | 15 | |
| 1500 | 10 | 10 | 20 | 20 | |
| 2000 | 15 | 15 | 25 | 25 | |
| 3000 | 20 | 20 | 30 | 30 | |
| 4000 | 20 | 20 | 30 | 25 | |
| 6000 | 10 | 15 | |||
| 8000 | 10 | 25 | |||
ASSESSMENT OF WPI re Sayed ZADEH
Degree of Permanent Whole Person Impairment (WPI)
Hearing Loss
Using the Motor Accident Permanent Impairment Guidelines, SIRA, 1.4.23, chapter 6.180-6, 186 and AMA4 where applicable, his
Total Binaural Hearing Impairment (BHI) is: 2.8%
Non-related hearing loss: 2.8%
Presbycusis Correction is: 0.0%
Additional for Severe Tinnitus is: 0.0%
Using the Motor Accident Permanent Impairment Guidelines, 1.4.23, Tinnitus is only assessable in the presence of hearing loss. An impairment of up to 5% can be added, not combined, to the percentage binaural hearing impairment prior to converting to whole person impairment hearing loss if tinnitus is permanent and severe, Chapter 6, para 6.180, MAA Permanent Impairment Guidelines, 1.4.23.
As there is no hearing loss caused by the relevant accident, there can be no addition for tinnitus using the Motor Accident Permanent Impairment Guidelines, 1.4.23.
In addition, his tinnitus does not fall within the class of severe.
The Resultant BHI is: 0.0%
A Resultant BHI of 0.0% equals 0% Whole Person Impairment using AMA4, Chapter 9, Table 3, p228.”
CONCLUSION
Contrary to what the claimant apparently told Medical Assessor Payten, the claimant informed Medical Assessor Williams that no airbags were deployed, there was no head strike, nor bleeding from the ears, no bleeding from the nose, no loss of consciousness and no lacerations, bruising or abrasion on the face or head. Medical Assessor Williams questioned the claimant a number of times as to whether or not his airbags deployed. The claimant consistently said they did not deploy. That information is consistent with what the claimant told Medical Assessors Menogue and Smith.[5]
[5] Pages 36 to 47 the insurer’s bundle.
The Panel accepts the accuracy of the history given to Medical Assessor Williams.
The evidence satisfies the Panel that, as the claimant did not suffer a blow to his head (contrary to what is reported by Ms Er) and his airbags did not deploy (negativing any loud noise), there is no mechanism whereby the claimant could have suffered hearing loss, arising from the accident.
As the Panel is content to base its decision upon the absence of causation of hearing loss, there is nothing from which to make a deduction of pre-existing hearing loss. It is not necessary for the Panel to speculate as to the cause of the claimant’s evident pre-existing hearing loss. As the Panel is not satisfied that the accident caused any hearing loss, in the claimant’s right ear, there can be no separate assessment of tinnitus.
The Panel concludes that the accident did not cause loss of hearing in the claimant’s right ear, nor tinnitus, as a matter of medical determination.
The Panel further concludes that the accident did not cause loss of hearing in the claimant’s right ear, nor tinnitus, as a matter of factual non-medical determination.
FINDINGS
In reaching these conclusions and findings, the Panel has attempted to apply the principles of causation, as explained in Briggs v IAG Limited t/as NRMA Insurance[6] per Wright J.
[6] [2022] NSWSC 372.
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Payten should be revoked. The new certificate is attached at the commencement of these reasons.
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