DETERMINATION OF REVIEW PANEL	
	
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Simkovic [2024] NSWPICMP 359	
		
CLAIMANT:	Dejan Simkovic	
		
INSURER:	Insurance Australia Limited trading as NRMA Insurance	
		
REVIEW Panel	 	
		
MEMBER:	Susan McTegg	
		
MEDICAL ASSESSOR:	Brian Williams	
		
MEDICAL ASSESSOR:	Margaret Gibson	
		
DATE OF DECISION:	3 June 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; whole person impairment (WPI); causation; hearing loss; tinnitus; vertigo; vestibular function; head strike; medical review of certificate of Medical Assessor (MA) Howison; the claimant suffered injury in a motor vehicle accident on 20 November 2020; the dispute related to the assessment of WPI under the Act of hearing loss, tinnitus and vertigo; MA Howison found tinnitus but no hearing loss and therefore tinnitus not cause of permanent impairment; MA Howison assessed 0% WPI; Held – tinnitus caused by accident; vertigo caused by the accident noting head strike; no objective findings of vestibular dysfunction; assessed at 0% WPI for vertigo; hearing loss and tinnitus assessed at 2% WPI; certificate of MA Howison revoked, assess 2% WPI caused by accident.  

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 revokes the Certificate of Medical Assessor Kenneth Howison dated 
29 June 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment which, in total, is not greater than 10% and is 2%:
•	hearing loss;
•	tinnitus, and
•	vertigo.

	

REVIEW PANEL REASONS FOR DECISION
INTRODUCTION 
1.	On 20 November 2020 Mr Dejan Simkovic (the claimant) was involved in a motor vehicle accident when another vehicle hit the right side of his car. Mr Simkovic says he sustained trauma to the right side of his face and head. He also sustained injury to his lumbar spine, cervical spine, shoulders, right knee and left hand. 
2.	Mr Simkovic was 44 years of age at the date of accident and is now 48 years of age. 
3.	Mr Simkovic has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act). 
4.	Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Simkovic under the MAI Act.
5.	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%.
6.	This dispute is in relation to whether the degree of permanent impairment sustained by Mr Simkovic 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. 
7.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
8.	The dispute as to permanent impairment was referred to Medical Assessor Howison who issued a certificate dated 29 June 2023.   
DOCUMENTS BEFORE THE REVIEW PANEL
9.	The Panel issued a Direction to the parties on 5 October 2023 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents titled claimant’s documents paginated from pages 1 to 407. The solicitor for the insurer uploaded to the portal a bundle of documents marked insurer’s documents and paginated from pages 1 to 239.
10.	The Panel notes that there are extensive medical records describing the claimant’s psychological and physical injuries including injuries to his lumbar spine, cervical spine, left shoulder, right knee, left eye and post concussive syndrome. The Panel has not referenced all records relating to the physical injuries unless they are relevant or have some bearing on the claim for hearing loss.   
11.	On 15 December 2023 the Panel directed the claimant by close of business 31 January 2024 to upload to the portal the following: 
(a)	the entire clinical records of Dr Phillip Chang relating to treatment of the claimant including all audiograms; 
(b)	the entire clinical records of Professor Paul Fagan relating to treatment of the claimant including all audiograms, and
(c)	the entire clinical records of Healthy Hearing and Balance Care relating to the treatment of the claimant including but not limited to the clinical records and all audiograms of Dr Celene McNeill and Ms Barbara Mok. 
12.	On 30 November 2023 the insurer uploaded to the portal an Application to admit late documents dated 29 November 2023 with the clinical records of The Balance Clinic and Laboratory and of Associate Professor Welgampola (clinical records of Balance Clinic).
13.	On 21 December 2023 the claimant uploaded to the portal the clinical notes of Health Hearing and Balance Care paginated from pages 1 to 28. 
14.	On 10 January 2024 the claimant uploaded to the portal the clinical notes of Dr Phillip Chang paginated from pages 1 to 10.
15.	On 17 January 2024 the claimant uploaded to the portal the clinical notes of Professor Paul Fagan paginated from pages 1 to 4 (Prof Fagan clinical notes).  It is apparent from this report that Mr Simkovic was referred to Professor Fagan by the insurer for a medico legal assessment and he did not provide treatment.    
16.	On 13 February 2024 the claimant uploaded to the portal the clinical notes of Myhealth Bondi Junction including the records of Dr Trajilovic (Myhealth records).      
REVIEW PROCEDURE
17.	On 1 August 2023 the insurer sought a review of the medical assessment of Medical Assessor Howison.
18.	On 20 September 2023 the delegate of the President was satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the medical assessment to the Review Panel (the Panel).
19.	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.
20.	The review is by way of a new assessment of all matters with which the medical assessment is concerned. 
21.	On 12 December 2023 the Panel agreed an examination was necessary.
RELEVANT LEGAL AUTHORITY
22.	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). 
23.	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.
24.	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 HOWSION
25.	The following injuries were referred to Medical Assessor Howison:
•	hearing loss/balance – vertigo, tinnitus, hearing loss.
26.	Medical Assessor Howison reported Mr Simkovic sustained trauma to the right side of his face and head over the right frontal and parietal regions. Under the heading history of symptoms and treatment following the motor accident he recorded:
“Tinnitus
No change in his hearing
Anti-clockwise rotary vertigo on turning his head towards the left. He also veers towards the left.
From the viewpoint of my speciality of ear, nose and throat there is no current proposed treatment.” 
27.	Medical Assessor Howison reported Mr Simkovic had post-traumatic stress disorder and post-concussive syndrome. 
28.	On examination he reported both external canals were normal as were the underlying tympanic membranes. He reported the left auditory canal was so tender that he did not carry out a pure tone audiogram or impedance due to Ms Simkovic’s distress. He noted the hearing testing carried out by Dr Phillip Chang demonstrated that his hearing was normal.  He stated there was no disturbance of gait or of cerebellar function.  He did not carry out the Hallpike manoeuvre because of Mr Simkovic’s anxiety.

29.	Medical Assessor Howison noted that tinnitus is only calculable in the presence of hearing loss in the assessment of whole person impairment (WPI). He concluded because 
Mr Simkovic did not have hearing loss his tinnitus did not cause permanent impairment. 
30.	Medical Assessor Howison issued a certificate dated 29 June 2023 in which he stated:
•	hearing loss – there is no hearing loss;
•	tinnitus – the tinnitus was as a result of the whiplash injury, and
•	vertigo – as a result of the post concussive syndrome. 
31.	Medical Assessor Howison certified a 0% WPI. 
EVIDENCE CONSIDERED BY THE PANEL 
New South Wales Ambulance report 
32.	The report stated:
“…OA pt 44 YOM alert, orientated and well perfused seated on ledge of sidewalk. …pt states was stationary at traffic light and once light turned green started to proceed forward and saw car on his right travelling approx. 70kph along the cross street travelling through the red light. …other car made impact to front of pts car and other car spun out. Moderate damage noted to front of pts car – nil damage noted to driver side of car – nil airbag deployment and seatbelts worn. Pt self extricated. Pt states head strike onto side of car just about window – denies any LOC and can recall entire incident. Pt currently CO pn to R frontal lobe of head, behind the R eye and an intermittent occipital headache. Pt denies any visual disturbances, denies nausea, denies any altered sensations. …GCS 15 throughout. …secondary assessment showed small haematoma to R frontal lobe – nil other abnormalities of obvious injuries noted…”
Royal Prince Alfred Hospital 
33.	Mr Simkovic presented to Royal Prince Alfred Hospital (RPA) for management of a right deep venous thrombosis which developed following a trip to Serbia.  On 10 August 2018 
Mr Simkovic was reviewed by Professor John Rasko. He reported the claimant’s past medical history included a nose injury during a water polo competition, tonsillectomy, adenoidectomy, a skiing accident one year earlier, a fractured left wrist as a teenager and concussion. 
34.	Mr Simkovic presented to the hospital following the accident on 20 November 2020. He had a headache and some neck soreness.  A CT brain and cervical spine showed no fracture or intracranial haemorrhage. It was reported “there was no other injury sustained on clinical examination”.
35.	The admission summary reported the claimant re-presented following his earlier discharge. He returned due to an odd sensation of fullness around his right eye which then moved to his left eye. On examination he was not found to have any evidence of peri-orbital injury.   
Myhealth Bondi Junction
36.	On 20 November 2020 Mr Simkovic had a telephone consultation with Dr Trajilovic where he reported his involvement in the accident that morning.  Dr Trajilovic recorded:
“… He had whiplash and he also hit the head on the side of the car.
He hurt low back too.
He was taken to ED local hospital.
Had CT head. NAD.
He is concerned about pain in L eye like pressure also headaches, neck pain and low back pain. 
He will rest and take Panadol …”
37.	On 24 November 2020 Dr Trajilovic recorded:
“Has had more headaches and L eye pain since accident. Also has been having L eye floaters and vision has changed. Unable to read and to do work on the computer…. 
He also developed bad /Tinnitus on the left side.
Had confusion on Friday afternoon and some on Saturday.
Pain in the neck is new, pain in low back with bruise on the right loin. …
Restricte neck and L-S spine movements by pain…. [sic].”
38.	Dr Trajilovic issued a Certificate of capacity/certificate of fitness dated 27 November 2020 in which she diagnosed whiplash, concussion, left eye injury – possible vitreous detachment, L5/S1 disc protrusion and left shoulder injury. She recommended pain medication, physiotherapy and cortisone injections and noted referral to Dr Chang, ophthalmologist. 
39.	On 4 December 2020 Dr Trajilovic reported the MRI of the brain showed no abnormality. She noted Mr Simkovic was not well, he had tinnitus on the left side and left eye pain.  He could not concentrate or focus.
40.	On 11 December 2020 Dr Trajilovic referred the claimant to Dr Phillip Chang. She reported he sustained whiplash and concussion due to his involvement in the accident and a few days after he developed bad left tinnitus.
41.	Further consultations document various complaints including tinnitus, headaches, recurrent epistaxis, vertigo and loss of balance.
Associate Professor Andrew Chang
42.	Mr Simkovic was referred to Associate Professor Chang by Paul Williams, optometrist. On 
24 November 2020 he reported Mr Simkovic presented with headaches and floaters in his vision. Visual acuity, visual fields and ocular movements were normal. A/Prof Chang considered the symptoms were related to the concussive effects. 
43.	On 27 January 2021 A/Prof Chang reported in the right eye, in the inferotemporal retinal periphery Mr Simkovic had a small retinoschisis and outer leaf retinal break.  
44.	On 2 February 2021 A/Prof Chang reported since the accident the claimant had suffered from incapacitating tinnitus of the left ear with a mild degree of tinnitus in the right. He noted the MRI and audiogram were both normal. 
45.	On 12 May 2021 A/Prof Chang reported an episode of photopsia while watching television. The examination was normal, and the proposed diagnosis was ocular migraine. 
46.	On 23 June 2021 A/Prof Chang reported when he saw Mr Simkovic on 27 April 2021, he reported floaters and occasional blurred vision. 

Dr Elisheva Vissel, neurologist 
47.	Mr Simkovic was referred to Dr Vissel, a locum for Dr Susan Tomlinson for a review of post-concussive syndrome on 12 January 2021. She reported after the accident Mr Simkovic noticed some bruising and bleeding to the right side of his head.  He initially developed a right-sided headache which then transformed to a left-sided headache which persisted for about 10 days. He also reported some persistent photosensitivity, left shoulder and right knee pain. Dr Vissel also reported he had been hearing a ringing high-pitched noise in his left ear, which was most pronounced when it was quiet, and which seemed bilateral at night. Mr Simkovic also described dyscognitive symptoms including difficulty concentrating and focussing on his work.  Dr Tomlinson reported Mr Simkovic has symptoms in keeping with post-concussive syndrome. 
48.	The examination noted visual acuity was 6/12 in the left eye and 6/9 in the right eye with glasses on. Extraocular movements and visual fields were full. Facial sensation and strength were normal. Optic discs were normal on fundoscopy. Hearing was intact to soft sounds bilaterally. Tongue and palatal movements were normal. Neck range of movement was normal. Upper and lower limb examination revealed normal tone and full strength in all muscle groups. Sensation to light touch, pinprick, vibration and temperature were normal. Reflexes were present and symmetrical. Plantar responses were down going. There was no incoordination. Romberg's test was negative. Blood pressure today was 140/90 sitting and standing.
49.	Dr Vissel thought the symptoms were as a result of post-concussive syndrome including impaired concentration and memory, mood irritability, headache and tinnitus. 
50.	Dr Vissel reviewed the claimant for his post-concussive syndrome on 2 March 2021. He had returned to work two days per week, finding three days per week left him profoundly fatigued.  He noted improvement in his dyscognitive symptoms and chronic headache. 
51.	On 3 June 2021 Dr Vissel reported Mr Simkovic was doing poorly. He had developed chronic headaches and episodic migraines.
52.	On 20 August 2021 Dr Vissel reported the claimant’s headaches were more manageable. He continues to get some tingling and numbness in fingers and toes and often along the medial aspect of the hands and the lateral border aspect of the feet and legs. He reported ongoing vestibular symptoms with disequilibrium and a sensation of popping and clogged ears.
53.	On 15 March 2022 Dr Vissel diagnosed post-concussion syndrome, depression, anxiety, chronic headache, chronic fatigue, left shoulder injury, lower back pain, tinnitus and post-traumatic stress disorder. 
Dr Phillip Chang, ear, nose and throat surgeon
54.	Dr Chang saw Mr Simkovic on 2 February 2021. He reported since the accident 
Mr Simkovic had suffered from incapacitating tinnitus of the left ear with a mild degree of tinnitus in the right ear. He noted both the MRI and the audiogram were normal. He recommended treatment with Dr Celene McNeill, audiologist.
Healthy Hearing and Balance Care
55.	On 17 February 2021 the claimant consulted Dr Celene McNeill in respect of persistent left-sided tinnitus since the accident. She reported:
“Audiogram showed hearing essentially normal except for a mild hearing loss
in the ultra-high frequencies bilaterally.
Tympanogram was consistent with middle ear pressure and tympanic membrane compliance within normal limits bilaterally.
Tinnitus pitch matched closely to a 10kHz pure tone.
Tinnitus Reaction Questionnaire (TRQ) revealed a score of 79/104 indicating
significant levels of tinnitus disturbance. Mr Simkovik also reported sleeping
disruptions which he attributed to the tinnitus noise which keeps him awake.
The neuro-physiological mechanisms of tinnitus were discussed. Sleep
hygiene and tinnitus habituation techniques using sound enrichment and a
music based therapy program were prescribed.”
56.	On 1 July 2021 Ms Barbara Mok audiologist undertook auditory testing. Mr Simkovic reported a worsening of his tinnitus over the preceding seven days. Otoscopy was clear in both ears.  Pure-tone audiometry demonstrated hearing was essentially within normal limits with a mild to moderately severe hearing loss in the ultra-high frequencies.  In the left ear hearing was within normal limits with a mild to moderately severe sensorineural hearing loss affecting the high and ultra-high frequencies. Tympanometry demonstrated tympanic membrane complaints and middle ear pressure was within normal limits. Accoustic reflexes were present at normal sensation levels via ipsi-and contra-lateral stimulation. 
57.	The tinnitus reaction questionnaire (TRQ) revealed a score of 77/104 indicating significant levels of tinnitus disturbance.
58.	Ms Mok concluded:  
“Today’s results show a sensorineural deterioration in the high frequencies compared with Mr Simkovic’s previous hearing test in February 2021. This in conjunction with the recent exacerbation of tinnitus and onset of aural fullness, further investigation by an ENT specialist is recommended.”
59.	On 17 August 2021 increased tinnitus with nose bleeds with ear blocking was reported. 
60.	On 16 November 2021 Dr McNeill reported the tinnitus had returned to previous levels.  
Mr Simkovic was continuing to follow the music based therapy protocol.  She noted he was under the care of Prof Paul Fagan who was investigating the sensation of blockage in the left year and disequilibrium. 
61.	On 17 May 2022 Dr McNeill reported Mr Simkovic continued to experience chronic pain, eye floaters, nose bleeding, light headedness and disequilibrium. She noted he had been under a lot of stress which is known to aggravate tinnitus perception.  She administered a TRQ and reported no improvement. 
62.	On 8 September 2022 Dr McNeill reported a recent increase in tinnitus intensity and increased difficulty hearing others.  Mr Simkovic underwent pure tone audiometry which 
Dr McNeill reported was consistent with the stable thresholds compared to the audiogram performed in July 2021.  The TRQ revealed a score of 78/104.   
63.	On 20 October 2022 Dr McNeill reported, notwithstanding the music therapy, the TRQ applied released a score of 94/104 a significant increase in tinnitus disturbance. She proposed a different approach using the Widex Zen Therapy for Tinnitus (WZT). She sought approval to order a new pair of Widex hearing aids with Zen technology. 
64.	On 24 August 2023 Dr McNeill and Dr Phillip Chang reported Mr Simkovic had been wearing the bilateral hearing aids with a white noise tinnitus program which helped to improve his overall hearing and reduced his tinnitus perception although it had not been as effective over the preceding few weeks.
65.	Mr Simkovic underwent audiological review. She reported the otoscopy was clear bilaterally. Pure tone audiometry showed a mild sensorineural hearing loss bilaterally. A deterioration in the hearing levels in both ears was reported compared to 12 months earlier. 
Dr Jeanette Stewart, neuropsychologist
66.	In a report dated 10 April 2021 Dr Stewart reported the claimant’s neuropsychological performance was within expectations but she concluded he presented with a marked post-concussive syndrome.  She recommended psychological therapy to assist with anxiety and panic attacks and some depression. 
Dr Roy Sugarman, clinical psychologist
67.	On 17 May 2021 Dr Sugarman reported testing confirmed post-traumatic stress disorder symptoms which probably accompanied mild traumatic brain injury symptoms immediately post-accident. 
Dr Kok-Eng Khor, consultant in pain medicine
68.	Mr Simkovic saw Dr Khor on 24 November 2021. Mr Simkovic had seen Dr Abraszko neurosurgeon and underwent a bilateral L4/5 facet joint injection and a left cervical facet joint injection as well.  He also complained of bilateral leg pain and reported his orthopaedic surgeon had organised shoulder injections.  He also complained of migraine centred over the right eye. It was noted he was consulting with a neurologist and an ENT surgeon for his tinnitus. He was reporting sluggishness, severe pain and anxiety. Other than suggesting he continue with a daily routine of exercise Dr Khor did not propose any changes.
69.	On 4 March 2022 Dr Khor reported Mr Simkovic complained of widespread pain over his head region, shoulder, neck and lower back as well as tinnitus. Dr Khor suggested the widespread nature of his pain may be related to central sensitisation process which could perpetuate his chronic pain syndrome. Dr Khor recommended a pain management program although he suggested he exhaust all medical avenues first. 
Associate Professor Michael Barakate, ear, nose and throat surgeon
70.	Mr Simkovic saw A/Prof Barakate for management of epistaxis and nasal irritation. He diagnosed nasal vestibulitis.
Precision hearing
71.	Mr Simkovic underwent a vestibular assessment with Edith Segal, clinical audiologist on 
17 August 2023. She reported:
“The Video Head Impulse Test (VHIT) reveals normal and symmetrical gain in all conditions consistent with normal SSC function, bilaterally. 
The Videonystagmography (VNG) found no gaze (right and left) or spontaneous nystagmus. Saccadic eye velocity and accuracy are within normal limits, and smooth pursuit testing revealed gain within normal limits. Optokentic test was normal.
The Dix-Hallpike assessment for BPPV is negative for both right and left positions.
Positional testing revealed no nystagmus response for supine, head left and head right positions. In body left and body right, left beating nystagmus was present, which reduced with fixation. (Ms Segal reported the body left was 4.5 degrees per second and body right was 6 degrees per second which reduces with fixation and which the Panel finds is within normal limits.)
Bithermal caloric irrigations revealed a right unilateral weakness of 7%; however, this is not considered clinically significant (> 25% is considered clinically significant). 
Cervical Vestibular Evoked Myogenic Potentials (cVEMPS) revealed normal saccule, inferior vestibular nerve and vestibulo-collic reflex pathway, bilaterally [sic].”
Associate Professor Miriam Welgampola of The Balance Clinic and Laboratory
72.	A/Prof Welgampola reviewed the claimant on 7 September 2023 in respect of his history of spontaneous disequilibrium, movement-related disequilibrium and veering to one side occurring since the accident. She found no evidence of vestibular damage or of benign positional vertigo. 
73.	She concluded there were two possible causes for the disequilibrium, vestibular migraine or deconditioning and lack of normal activity for the vestibular system. A/Prof Welgampola introduced a pharmaceutical migraine preventer and recommended an increase in physical activity. 
Imaging 
MRI brain, 3 December 2020
74.	On 3 December 2020 Mr Simkovic underwent an MRI of the brain. The indication for the MRI was “Post concussion, MVA 20/1/20. Ongoing headaches. Left eye pain and left tinnitus”. Note this should read 20 November 2020, not 20 January 2020.
75.	The report concluded it was a normal study and noted an additional sequence of the petrous temporal bones was performed due to the history of tinnitus.  The report stated: 
“…there were normal IAMs showing normal vestibular and cochlear nerves and normal vestibular and cochlear apparatus. 
No abnormality is seen in this study to account for the patient’s symptoms.”
Non-contrast CT of the brain, 12 January 2021
76.	A non-contrast CT of the brain of 12 January 2021 recorded a history of post-concussion syndrome, headaches, worse in the last few days and epistaxis. No abnormality was demonstrated.
77.	An MRI of the brain on 7 November 2022 was reported to be a normal study.

Medico-legal evidence
Professor Paul Fagan, otolaryngologist
78.	Professor Fagan assessed the claimant at the request of the insurer and provided a report dated 20 September 2021. He reported Mr Simkovic developed severe bilateral tinnitus within a day or two of the accident. He had intermittent tinnitus in the left ear which can last for an hour and on occasion persist for 10 days. The tinnitus in the right ear had ceased.  The tinnitus was interfering with sleep. 
79.	Professor Fagan reported Mr Simkovic had developed imbalance and will veer to the left when he walks. He reported Mr Simkovic had also developed what he thought was a minor variant of Benign Positional Peripheral Vertigo (BPPV). He also reported ocular migraine with blurring of vision, photophobia and spectra. 
80.	Professor Fagan reported an audiogram showed that the claimant’s hearing was normal in all respects, but Oto Emission Acoustic Testing showed significant absence of response in the high tones in the left ear. 
81.	Professor Fagan reported the only abnormality he could find was a lack of responses to emission testing on the left side suggesting Mr Simkovic had suffered some damage to the microscopic elements of the left inner ear. He also noted whilst the neurological examination was normal, he thought Mr Simkovic had suffered some damage to the balance function of the inner ear. He recommended he undergo testing of labyrinthine function. 
Dr Ross Mellick, neurologist
82.	Dr Mellick assessed Mr Simkovic on 25 October 2022. He did not address the question of tinnitus or hearing loss at all. Dr Mellick concluded there was no indication of a specific neurologically based disorder requiring treatment. He considered the treatment Mr Simkovic was having psychiatrically and psychologically was appropriate based on his neurological assessment. 
Dr Andrew Keller, occupational physician
83.	Dr Keller assessed Mr Simkovic on 15 February 2023. Relevantly Dr Keller recorded:
“He reports that he experiences migraines and headaches up to twice per week. He suffers severe tinnitus that is worse on the left than the right. He states his ears feel blocked and he is unable to equalise them by performing the Valsalva manoeuvre. He gets regular nose bleeds but has been cleared by an ear, nose and throat specialist for any significant nasal pathology.”
84.	Dr Keller reported Mr Simkovic’s physical presentation was grossly inconsistent and unsupported by objective evidence of physical injuries. 
85.	Dr Keller reported he had seen no evidence to support claims for injuries to the eyes or ears.
SUBMISSIONS
Claimant’s submissions
86.	The claimant provided undated submissions in support of the application for review.
87.	The claimant notes Medical Assessor Howison found that hearing loss/balance – vertigo, tinnitus, hearing loss were caused by the accident but assessed 0% WPI.
88.	Medical Assessor Howison relied upon a hearing test carried out by Dr Phillip Chang over two years earlier to conclude that the claimant’s hearing was normal. 
89.	The claimant relies on the Guidelines which provide: 
“1.179	To assess impairment of the ear, nose and throat, and related structures,
the injured person must be assessed by the medical assessor. While the
assessment may be based principally on the results of audiological or other
investigations, the complete clinical picture must be elaborated through direct consultation with the injured person by the medical assessor.”
90.	The claimant submits there was no evaluation of the claimant’s hearing undertaking by Medical Assessor Howison, who it is alleged failed to conduct a hearing test or take a proper history. 
91.	The claimant notes the Guidelines further provide:
“1.187	Assessment of impairment due to disorders of equilibrium (pages 228–
229, AMA4 Guides) is dependent on objective findings of vestibular
dysfunction. Such data must be available to the medical assessor.”
92.	The claimant submits there was no assessment of an impairment due to a disorder of the equilibrium despite objective findings that the claimant suffered damage to the elements of the left inner ear. 
93.	Medical Assessor Howison reported: 
•	tinnitus;
•	no change in his hearing;
•	anti-clockwise rotary vertigo on turning his head towards the left. He also veers towards the left, and
•	from the viewpoint of my speciality of ear, nose and throat there is no current proposed treatment. 
94.	The claimant submits the history recorded by Medical Assessor Howison is inaccurate. On 
2 February 2021 Dr Phillip Chang reported complaints of incapacitating tinnitus of the left ear and mild degree of tinnitus in the right ear. He recommended aggressive treatment by way of tinnitus assessment and a hearing aid for masking under the care of Dr Celene McNeill.
95.	On 17 February 2021 Dr McNeill reported a mild hearing loss in the ultra-high frequencies bilaterally. 
96.	On 1 July 2021 Ms Mok undertook an audiological assessment and reported a sensorineural deterioration in the high frequencies compared with an earlier test in February 2021. 
97.	On 17 August 2021 Dr McNeill reported a worsening in the claimant’s tinnitus.  
98.	On 20 September 2021 Professor Paul Fagan reported there was a lack of responses to otoacoustic emission testing on the left side suggesting damage to the microscopic elements of the left inner ear which were not severe enough to produce changes in the audiogram.
99.	On 23 August 2022 Dr Trajilovic reported Mr Simkovic had ongoing issues with balance, vertigo and a deterioration in his hearing.  
100.	The claimant submits Medical Assessor Howison failed to consider the objective evidence of hearing loss and tinnitus. 
Insurer’s submissions
101.	The insurer provided undated submissions in respect of the various permanent impairment disputes.
102.	In relation to the dispute as to hearing loss/balance the insurer submitted at that time it was not clear whether the hearing loss was directly related to the accident noting the delay in findings or whether it was the natural aging phenomena. 
103.	The insurer noted the claimant’s hearing was noted to be normal in the report dated 
17 February 2021.  
104.	The insurer also noted that in accordance with cl 6.180 of the Guidelines tinnitus is only assessable in the presence of hearing loss and both must be caused by the accident. 
105.	The insurer provided submissions in support of the review application dated September 2023. The insurer submitted there was no obligation for Medical Assessor Howison to conduct a hearing test, noting cl 6.18(b) of the Guidelines only requires an assessor to perform a clinical examination “when possible”.  Medical Assessor Howison explained his reasons for not doing so were because the left auditory canal was tender, and the claimant was too distressed. 
106.	The insurer submits not conducting an auditory test was not material to the outcome of the certificate where the claimant reports hearing loss in ultra-frequency which would not have been measured under the AMA 4 Guides. In accordance with the AMA 4 Guides hearing impairment is assessed at frequencies between 500 and 3000 hertz. The claimant’s audiometric testing suggests hearing loss at over 12000 hertz. Therefore, in the insurer’s submissions even if the Medical Assessor had performed an auditory test, the claimant’s alleged hearing loss would not have been detected.
107.	The insurer notes the claimant alleges breach of cl 1.187 of the Guidelines (more correctly cl 6.187) which requires the Medical Assessor to have access to ‘data’ and ‘objective findings of vestibular dysfunction’ before assessing an impairment due to disorders of equilibrium. The insurer disputes the Medical Assessor had objective findings of vestibular dysfunction to establish that the claimant had suffered damage to the left ear, only the hypothesis of 
Professor Fagan that he thought otoacoustic testing suggested Mr Simkovic had suffered “some damage to the microscopic elements of the left inner ear which are not severe enough to produce changes in the audiogram”.
108.	The insurer notes the claimant takes issue with the Medical Assessor failing to provide reasons for adopting the findings of a hearing test undertaken two years previously. The insurer submits the Medical Assessor has a discretion as to the weight to be given to different evidence.  The insurer also submits any loss of hearing after the test undertaken two years earlier would not have been related to the accident, suggesting treatment following the accident would have resulted in improved results on auditory testing. 
109.	The insurer also argues the Medical Assessor was not under an obligation to inform the claimant during the assessment which evidence he would be relying upon, for example he was not obliged to inform the claimant he would be relying upon the audiogram of Dr Chang. 
110.	The insurer otherwise submits the claimant has misinterpreted the history recorded by the Medical Assessor who clearly considered all the evidence available in concluding the claimant had not sustained hearing loss. 
MEDICAL EXAMINATION 
Details of who attended the assessment
111.	Mr Simkovic was examined by Medical Assessor Williams on 14 May 2024.  He attended the medical examination unaccompanied.
List of injuries to be assessed
112.	The following injuries, as listed in the referral letter from MAS, were assessed: 
•	hearing loss;
•	tinnitus, and
•	vertigo.
History
History of the accident 
113.	Mr Simkovic said on 20 November 2020 in Darlington, he was driving a sedan car with his seat belt on.  He said he was stationary, waiting at lights.  He said he started to move off and an SUV hit the right front wheel area of his car.  
114.	Mr Simkovic said he had a head strike on the right temple.  He said he is not sure if he had loss of consciousness.  He had no bleeding from the ears immediately after the accident.  He said no airbags were deployed.  He self-exited the car.  Mr Simkovic said he had no ear symptoms at the scene, but he had pain in his right eye, and in his head and neck which then went to the left head.  He said Fire and Rescue and police attended the scene. He was taken by ambulance to RPA Hospital.   Mr Simkovic said he was released the same day.  He had no fracture of bones of the head.  He said he had pain in the right eye.  He could not remember any ear symptoms.  
115.	Mr Simkovic said he saw an optometrist at RPA Hospital.  He saw Dr Chang, eye specialist and complained of tinnitus.  He said his GP referred him to Dr Chang, ENT specialist, 
Professor Fagan, ENT Specialist and Ms C McNeil.  He said he also saw an ENT in Randwick re epistaxis.  
History of symptoms and treatment following the accident 
Hearing Loss
116.	Mr Simkovic gave no history of hearing loss prior to the accident.  He said he can’t remember when he noticed hearing loss.  He said he has difficulty hearing students in class (5-140 students in class).  He said he needs to increase the volume of the television above others, he has difficulty hearing where there is background noise, and he has difficulty conversing with his wife. He said he has hearing aids which help his hearing and his tinnitus. 
Tinnitus
117.	Mr Simkovic gave no history of tinnitus prior to the accident.  He said he can’t remember when the tinnitus began but said he reported it to the eye specialist, Dr Chang, three days after the accident.   He said it is a high pitched ringing which is constant.  He said the left is worse.  He said the left tinnitus is constant and the right tinnitus is on and off.  He said it interferes with his daily activities as without hearing aids he can’t work in silence, it interferes with his ability to focus on ideas, and it is worse in a quiet environment.  Mr Simkovic said it interferes with sleep induction at night for one to four hours per night.  He said he has been treated with music therapy (Bach) which does not help.  He said he has hearing aids with sound generators.  He uses ear phones and audiobooks.  He said he has tinnitus and pain and has been diagnosed with disruptive sleep apnoea.  He said he has discussed his tinnitus with his GP and treating ENT specialist.   He said he is also seeing a psychiatrist and psychologist.  
Vertigo / dizziness
118.	Mr Simkovic gave no history of vertigo prior to the accident.  He said he does not know when the vertigo began. He said he has episodes of spinning/nausea and feels like he is losing balance.  He said it occurs every day and is triggered by movement.  It can occur if he is moving quickly.  He said his dizziness is veering to the left.  He has to stop and focus on an object.  He said it is associated with nausea which stops when he stops moving.  He said his vertigo lasts one minute.  He said his treatment is walking and medications, but he said he is not on any medication.  
Past history
119.	Mr Simkovic gave no history of hereditary deafness.  Medical Assessor Williams asked him if he could explain Dr Rasko’s mention of a history of concussion in his report of 
11 August 2018.  Mr Simkovic said he definitely had no history of concussion prior to the accident.  He gave no history of direct ear or blast injury.   He gave no history of otitis media or ototoxic exposure.  Mr Soimkovic was in the Yugoslav Army in 2002 at the age of 24, for nine months.  He said he undertook basic rifle training (shooting about 3 rounds).  He said he did not wear hearing protection.  He said he worked in the office.  He gave no history of recreational noise exposure.  He gave no history of otalgia (ear pain) or otorrhoea (ear discharge).  He gave no history of ear surgery. 
120.	Mr Simklovoic gave a history of hypertension treated with tablets.  He gave no history of heart disease, stroke, diabetes, thyroid disease, raised cholesterol, meningitis, mumps, measles, allergic rhinitis, or asthma.  He said he had a minor accident when he was rear ended about seven years ago.  He said he had no injury.   He is a non-smoker.  He gave a history of obstructive sleep apnoea diagnosed by a sleep specialist one year earlier.  He was yet to undergo a sleep study.  He said he has had no treatment at present.  Mr Simkovic listed his medications as Palexia, Panadol Osteo, Propranolol 3 x 20mg, Vyvance for Attention Deficit Disorder, Dexamphetamine 5mg, Zoloft 125 mg for severe depression, Valium prn and Exforqe.  
Occupational history
121.	Mr Simkovic was born in Serbia and went to school and university in Serbia.  
122.	He said he was in the Army in Yugoslavia.
123.	He did a PhD at Sydney University on Moral Theory and Ethics.  
124.	Mr Simkovic worked at Sydney University from 2009 to 2015 as a Tutor/Associate Lecturer.
125.	Since 2010 he has been employed as a Senior Lecturer at Notre Dame University.
126.	Mr Simkovic gave no history of noisy jobs.
127.	He also had a part-time job with the Department of Community Services working 14 hours per week from 2011 for one and a half years looking after children in out of home care. 
Hobbies
128.	Mr Simkovic said he does woodworking as a hobby working with chisels and dramel (small drill). He said he does not have to raise his voice above the noise to have a conversation at one metre. He said he wears hearing protection.  
Findings on clinical examination
129.	On examination Medical Assessor Williams observed the following:
Ears
130.	Otomicroscopy:
“Right Ear:
	His right external auditory canal is normal.
His right tympanic membrane is intact.
Left Ear:
		His left external auditory canal is normal.
	His left tympanic membrane is intact.

Weber Test:	Using the 512Hz tuning fork his Weber test was central.
Rinne Test:	Using the 512Hz tuning fork his Rinne test is positive bilaterally.”
Nose
131.	Anterior rhinoscopy showed deviated nasal septum to the left slightly.
Throat
132.	His oropharynx is normal.
133.	He had no cervical lymphadenopathy.		
Dizziness
134.	Mr Simkovic had no Spontaneous or Gaze nystagmus.  Hallpikes test was not done because of his sore neck.   Rombergs test was slightly unsteady, but this is not an objective test.  Heel toe walking, reverse heel toe walking test and Unterberger’s tests were steady.  Facial movement was normal. 
Audiogram
135.	Pure tone audiometry was performed on 14 May 2024 in a suitable sound attenuated environment, being a sound proof booth, with a calibrated audiometer.  His responses were repeatable and Medical Assessor Williams considered accurate auditory thresholds were obtained.  Mr Simkovic passed the Stenger test. Using the NAL 1988 Tables for determining percentage loss of hearing his pure tone audiogram showed right hearing is normal.  
Mr Simkovic has left high tone sensorineural hearing losses.
136.	The audiogram performed by Medical Assessor Williams in tabular form is as follows:
Frequency Hz	Left dB  HL
Air      Bone	
Right dB   HL
Air         Bone	
Total BHI	
% BHI due to
MVA	
500	15         10	10             5	0.0	0.0	
1000
	15         10	10           10	0.0	0.0	
1500	15         15	10           15	0.0	0.0	
2000	20         20	15            25	0.3	0.3	
3000	25         25	15            15	0.3	0.3	
4000	25         25	20            20	0.2	0.2	
6000
	20	20			
8000
	25	25			

Consistency of presentation
137.	Medical Assessor Williams was of the view Mr Simkovic presented as a person who had been in a motor vehicle accident as described.
138.	The consistency of his presentation with the other medical reports and other material sighted will be addressed further. 
DIAGNOSIS AND CAUSATION
139.	In Briggs v IAG Limited t/a NRMA Insurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.  His Honour stated at [70]-[72]:
“70.   This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138   Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
140.	The Panel finds, on the balance of probabilities the injuries we have been asked to assess were caused by the accident.  
Hearing loss
141.	In accordance with the Guidelines and the AMA 4 Guides Medical Assessor Williams assessed the claimants current hearing loss as follows:
Total Binaural Hearing Impairment (BHI) is				0.8%
Non related hearing loss is						0.0%
Presbycusis Correction is						0.0%
Addition for Severe Tinnitus is						4%
The resultant BHI is							4.8%
Using Table 3 in the AMA 4 Guides, Chapter 9, page 228 a BHI of 4.8% equals 2% Whole Person Impairment.
142.	There is no evidence of pre-existing hearing loss.  Mr Simkovic said he served in the Yugoslav Army undertaking basic rifle training without hearing protection, and without any symptoms of tinnitus or hearing loss afterward.
143.	In the accident he had a head strike to the right temple which is documented in the ambulance report with the onset of tinnitus in his left ear very soon afterward as documented in the contemporaneous reports of his GP on 11 December 2020 and by Dr P Chang on 
2 February 2021.  Dr P Chang reports no hearing loss but on review of his audiogram 
Mr Simkovic does have left high tone hearing loss.  
144.	Professor Fagan on 20 September 2021 reported severe tinnitus and “the hearing is normal”.  However, on review of his audiogram the Panel is satisfied Mr Simkovic does have hearing loss.  
145.	Even though he had no loss of consciousness, skull fracture or abnormal GCS Mr Simkovic did have a head strike associated with contemporaneous severe left tinnitus and on audiometry a slight left high tone hearing loss.  On the balance of probabilities his left tinnitus and associated slight left high tone hearing losses are caused by the accident.
Tinnitus
146.	There is no evidence of pre-existing tinnitus.  However, there is contemporaneous documentation of left tinnitus very soon after the accident, including a report of tinnitus by Dr Trajilovic on 24 November 2020, and for which he obtained treatment.   The Panel finds the tinnitus is caused by the accident.
Vertigo
147.	There is no evidence of pre-existing vertigo.  
148.	Mr Simkovic said he does not know when vertigo began after the accident.  He was able to self-exit the vehicle and the ambulance report states there was no unsteady gait and he denied dizziness. In the Application for Personal Injury Benefits dated 25 November 2020 there is no mention of vertigo.  The MRI of the brain on 4 December 2020 does not mention vertigo in the history.  On 11 December 2020 Dr Trajilovic’s referral to Dr P Chang does not mention vertigo.  On 12 January 2021 Dr E Vissel reports dizziness.  On 2 February 2021 
Dr P Chang does not mention vertigo.  On 20 September 2021 Professor Fagan reports 
“Mr Simkovic has developed imbalance”.  
149.	The first reported mention of vertigo is in a Certificate of Capacity dated 23 July 2021, on 
17 August 2023 Ms E Segal reported no objective abnormality of vestibular function.  On 
7 September 2023 Dr Welgampola reported no objective abnormality of vestibular function.  The Panel notes an injury to the left cochlea is not objective evidence of an injury to the vestibular system.  
150.	The physical examination undertaken by Medical Assessor Williams showed no objective abnormality of vestibular function.
151.	Whilst it is possible a head strike in an accident can cause vertigo, and where Mr Simkovic has symptoms of vertigo, albeit not reported until 23 July 2021, the Panel is satisfied the accident did materially contribute to the development of vertigo.  
152.	Clause 6.187 of the Guidelines states: 
“Assessment of impairment due to disorders of equilibrium (pages 228-229, AMA4 Guides) is dependent on objective findings of vestibular dysfunction.  
153.	However, where there are no objective findings of vestibular dysfunction the Panel finds the claimant has sustained a 0% WP in respect of the vertigo. 
154.	The Panel assesses WPI as follows:
	Body Part or System	AMA Guides/ Guidelines References
(chapter/ page/table)	Permanent (YES/NO)
	Current %WPI	%WPI from pre-existing OR subsequent causes	%WP* due to motor accident	
1	Vertigo	MA Guides, 9.2, 10.11.23 and
AMA4, Ch9, para9.1c, pp228-229	Yes	0	0	0	
2	Hearing Loss and
Tinnitus	MA Guidelines, 9.2, 10.11.23
 and AMA4, Chapter 9, Table 3 p228	Yes	2	0	2	

A  Current % permanent impairment					2%WPI
B  Pre-existing/subsequent % permanent impairment 		0%WPI
C  Adjustments % for effects of treatment				0%WPI
Final % permanent impairment					2%WPI