Is it inevitable to get tinnitus?

Accident insurance: degree of disability in the case of hearing loss and tinnitus

OLG Hamm, Az .: I-6 U 139/15, judgment of June 12, 2017

The plaintiff's appeal against the judgment of the 2nd civil chamber of the Dortmund Regional Court announced on June 10, 2015 is rejected.

The applicant is ordered to pay the costs of the appeal.

The judgment is provisionally enforceable.

The plaintiff may avert enforcement by providing security i. H. v. 110% of the enforceable amount, if the defendant does not provide security i. H. v. 110% of the amount to be enforced.

reasons

I.

The plaintiff, who was born on April 14, 1962, asserts claims from an accident insurance policy held by the defendant on the basis of AUB 88. According to the addendum dated February 11, 2010 (sheet 11 f. GA) to the insurance policy dated March 31, 1992 (sheet 6 ff. GA), the basic disability sum is € 209,920.00; the progression scale (225 percent) provides for a doubling of the disability sum for degrees of disability between 26% and 50% and tripling for degrees of disability above 50%. For the details of the contract and the insurance conditions, reference is made to the content of the file.

On September 4th, 2010 the plaintiff, who was a police officer by profession and has since retired, was attacked at the police station in H. and taken hostage. The perpetrator hit the plaintiff several times in the head with a pistol, threw him to the ground and choked him. The perpetrator also shot the plaintiff several times in the head with a gas pistol. After the perpetrator had given up, the plaintiff was admitted to the St. B. Clinic H. on September 4th, 2010 and treated there until the following day. The following was diagnosed: Commotio cerebri, two lacerations in the area of ​​the left eyebrow and on the back of the head, cervical spine distortion. In addition, the assault caused a perforation of the eardrum in the left ear. For this reason, as well as due to a hearing loss and a ringing in the ear, the plaintiff was informed by ENT doctors Dr. A. and Dr. H. treated. In the period from October 19, 2010 to October 28, 2010, there was inpatient treatment in the Neurology Clinic of St. M. Hospital H. (B8). From November 5th, 2010 to November 25th, 2010 a full-day outpatient rehabilitation measure followed in the reha bad h. (B9). On December 1st, 2010 an outpatient preliminary talk followed in the day clinic for psychosomatics and psychotherapy in A. (B10). In the following period, the plaintiff went to the clinic for psychiatry, psychotherapy and psychosomatics of the St. M. Hospital H. (B11) for outpatient treatment. From June 14th, 2011 to July 26th, 2011 an inpatient psychiatric-psychotherapeutic treatment took place in the AHG Psychosomatic Clinic B.P. (B12).


Subsequently, the defendant had the plaintiff, who had prepared an accident report on September 8, 2010 (B2) and had claimed disability benefits in letters of August 3, 2011 (B13) and September 7, 2011 (B14), medically examined.

The ENT report by Prof. Dr. M. dated 02/07/2012 (B16) came to the conclusion that the accident caused a largely healed eardrum injury with middle ear scarring and a permanent hearing impairment of 10% hearing loss (1/10 reduction in use) as well as an organically caused noise in the left ear. On the basis of a degree of disability of 30% with complete deafness, the result is a disability of 3%, which increases to 3.3% because of the ringing in the ears.

A neurological-psychiatric report by Prof. Dr. . dated February 16, 2012 (B17) with an additional neuropsychological report (B18) came to the conclusion that an anxious-depressive mood was present, but that it was not an organically determined consequence of the duration of the accident.

Thereupon, in a letter dated 03/15/2012 (B19), the defendant regulated a disability benefit of € 6,927.36 in addition to transitional benefits of € 7,219.20 based on a degree of disability of 3.3%. According to § 2 IV AUB 88, no insurance cover can be offered for pathological disorders as a result of psychological reactions, regardless of what caused them.

In a brief dated January 25, 2013 (B20), the plaintiff's agent asserted claims against the defendant.

The plaintiff claimed that the eardrum injury with middle ear scarring and left-sided hearing loss with sound conduction disorder with tinnitus in the high frequency range should be measured with at least 5/10 ear value. His psychological complaints are exclusively due to the injuries sustained in the accident, in particular the tinnitus. In this respect, there is an invalidity of 50% outside of the member tax. The total disability is therefore 65%, so that 120% have to be reimbursed according to the disability scale. From the resulting amount of € 251,904.00 the payment made of € 6,927.36 is to be deducted, so that the claim of € 244,976.64 results.

The plaintiff has requested that the defendant be sentenced

1.

to pay him € 244,976.64 plus interest at a rate of 5 percentage points above the base rate since lis pending;

2.

him from a lawyers' claim. …,…., On payment of pre-judicial lawyer's fees in the amount of € 4,419.18.

The defendant applied to dismiss the action.

The defendant has denied that the plaintiff suffered damage to his health on the occasion of the event of September 4, 2010, which lead to a disability higher than 3.30%. It has asserted that the plaintiff's existing psychological complaints have no organic cause and can therefore only be explained by their psychogenic nature.

The regional court raised evidence by obtaining an ENT medical opinion from Prof. Dr. . from October 29, 2014 as well as by obtaining a neurological / psychiatric report from Dr. ., the Dr. . orally during the public meeting on May 20, 2015. Thereupon the regional court dismissed the lawsuit. The plaintiff had no further claims due to the accident of 04.09.2010. The expert Prof. Dr. . found that at the time of the investigation the total disability was 1.7%, but the defendant settled according to a degree of disability of 3.3%. With regard to the psychological consequences, the defendant rightly invoked the exclusion of Section 2 (4) AUB 88. The plaintiff himself was psychologically impaired by the accident, but not because of the physical impairments caused by the accident. The expert Dr. E. stated convincingly that the plaintiff's psychological impairment could be based solely on a post-traumatic stress disorder, but not on the organic damage to the ear.

The plaintiff's appeal is directed against this, in particular against the assumption of the regional court that the defendant rightly invoked the exclusion of Section 2 (4) AUB 88. The district court had already misunderstood that the insurer had full evidence of the existence of the exclusion situation. This is already clear from the formulation of the decision to take evidence, which addresses the question of whether the psychological reaction was an inevitable consequence. In addition, specific clinical pictures were given, although organic consequences of accidents such as headaches, sweating, difficulty finding words and forgetfulness were presented. The expert Dr. E. did not go into this either. He also did not make a clear diagnosis. He had not clearly assigned symptoms to the psychological or physical area.

The reasoning of the regional court gave the impression that the regional court did not recognize that a contributory cause of the accident would have been sufficient for the symptoms.

As part of the written report, Dr. . the questions about organic causes and mental processing errors are not answered with sufficient clarity. It is contradictory and incomprehensible how the expert - without the exclusion - came to an invalidity of 40%. The written report by Dr. E. not expressed at all. He apparently assumed wrong assumptions. The court should have inquired about the connections.

An investigation carried out by Prof. Dr. Hey came to the conclusion that the stress disorder was triggered by the tinnitus.

The expert Dr. . did not explain the values ​​determined by him in more detail. In addition, he apparently only used one measurement, although the plaintiff stated that the impairments were fluctuating.

The plaintiff requests that the judgment of the 2nd civil division of the Dortmund Regional Court, Az. 2 O 387/13, announced on June 10, 2015, be changed and the defendant to be sentenced,

1.

to pay him € 244,976.64 plus interest at a rate of 5 percentage points above the base rate since lis pending;

2.

to release him from a claim of the RAe.,., to payment of pre-judicial attorney's fees in the amount of 4,419.18 €.

The defendant applied to reject the appeal.

The defendant defends the regional court decision. In the context of the written report, the expert stated unequivocally that the identified psychological reaction could not be assessed as an inevitable consequence of the accident and that no organic brain damage had been suffered as a result of the accident. All objections to the decision to take evidence and the expert's statements were belated. Insofar as the complaint was made that the court did not ask the expert in the first instance, clarification in the oral hearing by the plaintiff's representative was possible without any problems. In addition, the plaintiff did not name any organic causes which in turn are supposed to be the cause of the psychological impairments. The decision to take evidence was formulated correctly. It is wrong that the so-called psychological clause does not intervene when the organic consequences of an accident trigger psychological reactions. Because it is also about the question of whether accident-related organic impairments understandably lead to psychological impairments or whether it is a matter of incorrect processing that ultimately leads to psychological impairments. The statements on the current state of health of the plaintiff are irrelevant.

Due to the details of the state of affairs and the dispute, reference is made to the facts of the contested decision as well as the further content of the files, in particular the reciprocal written submissions of the parties and the aforementioned documents.

The Senate heard the plaintiff personally on February 29, 2016. In addition, the expert Dr. . explained his report. For details, reference is made to the rapporteur's note on this Senate meeting. With a resolution dated February 29, 2016 (p. 168 ff. GA), the Senate commissioned a further assessment with regard to the expiry of the period for commencement of disability on September 4, 2011. Thereupon the experts Prof. Dr. . under May 31, 2016 (loose) and Dr. E. on October 26, 2016 (p. 202 et seq. GA) supplementary report submitted. The expert Dr. E. orally explained the result of his assessment during the Senate meeting on June 12, 2017. For details, reference is made to the rapporteur's note on this Senate meeting.

II.

The plaintiff's admissible appeal is unsuccessful in the matter. Because the plaintiff has no disability claims against the defendant from the accident insurance contract existing between the parties beyond the payments already made according to § 7 I number 1 AUB 88 due to the attack on 04.09.2010. The attack, which is undisputedly an accident within the meaning of Section 1 (3) AUB 88, did lead to permanent impairment of the plaintiff's physical and mental performance (disability). However, to the extent of the 3.3% degree of disability granted by the defendant, the defendant settled the plaintiff's claims. With regard to the plaintiff's left ear, there is no further impairment of his physical performance. The psychological impairments caused to the plaintiff by the accident do not lead to a further claim by the plaintiff, because the defendant has proven that these are pathological disorders as a result of psychological reactions that are not covered by insurance according to § 2 IV AUB 88.

1.

With regard to his left ear, the plaintiff has not proven the degree of disability he claims to be 5/10 of an ear. Pursuant to Section 286 of the German Code of Civil Procedure, the policyholder is responsible for providing evidence of an initial damage to health as a result of an accident as well as proving invalidity. For the causality between the primary damage and the disability, the simplified standard of § 287 ZPO applies (BGH, judgment of 13.05.2009, Az. IV ZR 211/05, NJW-RR 2009, 1193, No. 19).

a)

Insofar as the plaintiff asserts a left-sided hearing loss with a sound conduction disorder in the high frequency range, he has not succeeded in proving an impairment of his hearing exceeding 10%, which leads to a degree of disability of 3% due to the tax in § 7 I No. 2 AUB 88. Rather, the Senate is convinced that the plaintiff has no further functional impairment.

The relevant point in time for assessing the degree of disability within the framework of the initial assessment is the disability entry period of one year agreed by the parties in Section 7 I Number 1 Sentence 3 AUB 88 after the plaintiff has filed his action after the agreed re-assessment period has expired. On the basis of the state of knowledge at the time of the last oral factual negotiation, a retrospective consideration must be made as to whether better actual insights into the prognostic bases regarding the occurrence of the disability arise based on the time of the expiry of the agreed disability occurrence period, but not whether later, unforeseeable health issues Developments change the forecast decision retrospectively (BGH, judgment of November 18, 2015, Az. IV ZR 124/15, quoted from juris, No. 19 et seq. MwN).

Based on the convincing and comprehensible report of the expert Prof. Dr. D. dated May 31, 2016 with additional consideration of the opinion of October 24, 2014 obtained by the Regional Court on the conviction of the Senate that the plaintiff had a degree of disability of 10% with regard to the alleged hearing loss. After the Senate has given the expert the relevant point in time for assessing the degree of disability, the expert has specified the expert opinion submitted on behalf of the Regional Court. This clarification fits in with the original assessment of the expert. In the context of his report of October 24, 2014, the expert found a hearing loss of 5% on the left based on his own examination, i.e. a degree of disability of 1.5%. He has thus found that the plaintiff's hearing has improved compared to previous investigations. The expert Prof. Dr. D. has already stated in the context of this report (p. 24 there) that on the basis of the tone audiogram of the defendant's party expert from January 2012 according to the 4-frequency table according to Röser 1973, there was a hearing loss of 9% on the left, which the defendant's party appraiser rounded up to 10% in favor of the plaintiff.

In the context of his report dated May 31, 2016, prepared for the Senate, specifying the relevant assessment date, Prof. Dr. D. comprehensibly explained that the starting point should be based on the hearing test closest to the expiry of the disability entry period. These are the test results of the party expert Prof. Dr. M. dated January 2nd, 2012, because these tests were carried out only 3 months after the relevant point in time.

According to this, the speech audiogram using the weighted total word comprehension according to Boenninghaus and Röser, 1973, results in a percentage hearing loss of 0% on the right and 0% on the left. This interim result is also understandable taking into account the results of the last examination carried out before the assessment date. With the examination carried out on November 2nd, 2010, the ENT medical treatment at Drs. H./Pruchhorst/Schulz was over. From the patient file (B6) at hand, the entry "normal hearing on both sides" results for this day. In the period that followed, according to the patient records, the ENT doctors only treated the plaintiff for tinnitus.

Since no impairment of the plaintiff can be determined on the basis of the weighted overall word comprehension based on the speech audiogram, the expert focused on the tone audiogram in a second step. According to this, regardless of whether the four-frequency table or the three-frequency table is used, a maximum hearing loss percentage of 20% can be taken into account.The expert explained that according to the four-frequency table according to Röser, 1973, the percentage hearing loss for the frequencies 500 Hz, 1, 2 and 4 kHz can be read from the table and added up. Insofar as the plaintiff objected in the context of the grounds of the appeal, which the expert Prof. Dr. D. determined values ​​are incomprehensible, he did not adhere to them. He did not raise any objections to this report obtained by the Senate within the deadline set for him to comment. In response to an explicit question from the chairman, his legal representative confirmed at the Senate meeting on June 12, 2017 that no objections should be raised against this report. This is also appropriate because the values ​​determined, taking into account the four-frequency table according to Röser 1973, which are based on the expert report by Prof. Dr. D. from 31.05.2016 is available, can be easily traced. From the audio audiogram of Prof. Dr. M. (B16 p. 11) results in an impairment of up to 20 dB for the left ear at 500 Hz, which according to the four-frequency table leads to an impairment of 3%, at 1 kHz up to 15 dB, the according to the table leads to an impairment of 3%, at 2 kHz up to 15 dB, which according to the table leads to an impairment of 2% and at 4 kHz an impairment of 15 dB, which according to the table leads to an impairment of 1% leads. The sum of 3%, another 3%, 2% and 1% arithmetically results in an impairment of 9%. In this respect, the expert Prof. Dr. D. As already stated, in the context of his report submitted on behalf of the regional court, the procedure of the party appraiser shared the defendant's approach to round this value up to 10% in favor of the plaintiff, which, taking into account the ear value of 30%, results in a degree of disability of 3%.

b)

In addition, the expert Prof. Dr. . this degree of disability resulting from the hearing impairment in the high-frequency range is slightly increased in relation to the expiry of the disability entry period due to the left-sided tinnitus. The Senate is convinced that the plaintiff's tinnitus has no further impairment than 10% of the value resulting from the hearing impairment.

The organic tinnitus does not represent a loss of the functionality of the ear, but an additional impairment of the hearing, which is not covered by the link tax and must therefore be assessed outside of the link tax (OLG Cologne, judgment of 12.01.2000, Az. 5 U 194 / 98, BeckRS 2008, 17468; with reference to this Prölss / Martin-Knappmann, VVG, 29th edition 2015, AUB 2010 section 2; Leverenz in Bruck / Möller, VVG, 9th edition 2010, AUB section 2.1 marginal number 222).

The expert regards the criteria by which the plausibility for an organic tinnitus is medically assessed as being met. The fact that the expert Prof. Dr. D. has also found that the tinnitus cannot be covered by external noises. From an ENT expert's point of view, a tinnitus that cannot be concealed and cannot be inhibited is to be assessed as an expression of a psychological overlay and is therefore excluded from the benefits of private accident insurance.

To assess the further impairment caused by the tinnitus, Prof. Dr. D. the table by M./B. and, in accordance with the table, a surcharge of 10% was added to the impairment suffered due to the hearing loss (see LG Oldenburg, judgment of June 23, 2016, Az. 13 O 956/13, r + s 2017, 31, 32). This assessment is medically based on the fact that the hearing ability influences the loudness perception of an ear noise. The greater the hearing loss, the louder the tinnitus is usually perceived. This arises from the fact that noises in the ear are masked by natural ambient noise. The better the hearing, the more the noise in the ear fades into the background. Conversely, deafness will cause an ear noise to be felt much more strongly than with a person who is only slightly hearing impaired, because there is no masking. For this reason, the hearing ability must be included in a tinnitus assessment, as it directly influences the intensity of the noise in the ear (M./B., VersMed 2007, 73).

No final assessment is required as to whether this type of assessment of the degree of disability due to organic tinnitus based on the table by M./B. is always applicable. The Senate is convinced that the plaintiff did not suffer any further impairment from the tinnitus.

In the course of his personal hearing at the Senate meeting on February 29, 2016, the plaintiff stated that he had a really loud whistle in his ear in the morning. He also stated that sometimes “the tinnitus whistles really loud”. However, based on the treatment documents available and the results of the explorations by the court-appointed experts, the Senate is convinced that the plaintiff - in accordance with the formulation of the additional expert Prof. Dr. . - does not suffer from tinnitus, but just perceives it as a nuisance.

The discharge report from reha bad h. dated November 29, 2010 (B9) does not contain any information regarding tinnitus, whereas the plaintiff (p. 2 there) reported exhaustion and sleep disorders. If the plaintiff had perceived the tinnitus as a nuisance, it would have been natural to mention it as well.

As part of the preliminary discussion in the day clinic for psychosomatics and psychotherapy A., according to the doctor's letter of December 1, 2010 (B10), the plaintiff also described various complaints from which he suffered. He described feeling dull from sleeping badly in the morning, but denied other psychological complaints. In the context of this preliminary talk in a day clinic for psychosomatics and psychotherapy, it is to be expected that the person concerned will name all the circumstances that affect him.

This impression of the Senate is confirmed by the doctor's letter from the Department of Psychiatry, Psychotherapy and Psychosomatics, Prof. Dr. B., from May 17, 2011 (p. 20 f. GA). The plaintiff reported extensively on "physical symptoms that were new to him after the incident". These include sleep disorders, grinding your teeth, irritability, difficulty concentrating, startle reactions and racing heart. The plaintiff also reported stress reactions when hearing Eastern European voices. The plaintiff, however, did not mention tinnitus.

As part of the admission findings of the psychosomatic clinic. dated 07/27/2011 (B12, p. 2 f.), the plaintiff only mentioned tinnitus, but in contrast to the various other impairments mentioned, it did not pose a problem. Here, too, the plaintiff would have expected a further problematization of the tinnitus if he had perceived it as a burden, especially since the clinic came to the conclusion that the plaintiff, with ostensible therapy motivation, was fixated on the recognition of a qualified work-related accident and the transfer to the early retirement. Insofar as the report of this clinic on the course of therapy also includes the completion of tinnitus observation sheets and the discussion of distraction strategies with regard to the tinnitus, this does not lead to a different assessment. From the Senate's point of view, it is crucial that the plaintiff himself did not raise the problem with the tinnitus.

This impression is confirmed by the further doctor's letter Prof. Dr. B. dated 09/26/2011 (B15), after which the plaintiff presented himself again to the psychiatric outpatient clinic at the beginning of September. Then the plaintiff reported on various impairments without going into the tinnitus.

From the exploration of the expert Prof. Dr. . dated 02.01.2012 (B16, p. 5), which concerned the assessment of the degree of disability in the area of ​​the left ear, there is also only a slight impairment from the tinnitus. Insofar as the plaintiff reported to the Senate about a loud whistling, the exploration shows that the plaintiff only had such a perception immediately after the attack on him. After that he had a whistling from the beginning, which improved over the course of the first few days. It had become quieter, but was still there.

The Senate gives preference to these timely representations by the plaintiff over later representations made during the trial. The timely information is on the one hand more reliable because of the temporal proximity, on the other hand this information is given less under the impression of the process objective and legal advice. Therefore, the Senate does not follow the information given by the plaintiff to the expert Prof. Dr. D. during the exploration of October 24, 2014 (p. 5 f. Of the report from that day), he immediately felt a high-pitched, high-pitched whistle, which remained unchanged. Hearing on the left has gotten a little better. However, the noise in the ear remained essentially the same. It's just a little better than in the acute phase. This information is in clear contradiction to the information provided by the expert on behalf of the defendant, Prof. Dr. ., which for their part already occurred in the situation of having to convince the examining doctor of the weight of the impairments suffered.

According to this, the plaintiff suffered no further disability with regard to his left ear than the degree of disability of 3.3% regulated by the defendant.

2.

The plaintiff's further claims also do not arise due to his psychological impairments suffered as a result of the attack. Because the defendant has proven that these are pathological disorders as a result of psychological complaints, which are excluded from the benefits of the agreed accident insurance according to § 2 IV AUB 88. This exclusion of services withstands a content control. However, according to the relevant policyholder's understanding, the exclusion of benefits does not apply to organic damage or reactions that lead to psychological suffering. These mental complaints are not based on psychological reactions, as the clause literally requires, but are caused physically (BGH, judgment of the BGH of 29.09.2004, Az. IV ZR 233/03, NJW-RR 2005, 32 (33) On the other hand, the risk exclusion also intervenes if the pathological disorder of the body can only be explained in terms of its psychogenic nature, i.e. there is an exclusively psychologically conditioned reaction in the form of a psychologically incorrect processing of the consequences of the injury (BGH, decision of July 15, 2009, Az. IV ZR 229/06, quoted from juris).

a)

The expert Dr. E., followed by the Senate, has explained convincingly and comprehensibly that the plaintiff suffers from a trauma-related disorder caused directly by the attack on him, which is an incomplete development of a post-traumatic stress disorder. Since this mental illness was caused directly by the attack, it falls under the exclusion clause of § 2 IV AUB 88.

The expert Dr. . has convincingly justified its assessment based on its own exploration and by evaluating the medical documents submitted. Based on the criteria of a post-traumatic stress disorder according to both DSM IV and ICD 10, the expert explained that the plaintiff was exposed to an event in the form of an attack on him, in which he should have expected death, so that it is understandable that he felt a deep fear and helplessness (criterion A). In addition, the plaintiff had a recurring experience of the trauma, albeit in a somewhat weakened form. In this respect, several points of criterion B are met. Criterion C was also met because the plaintiff actively avoided places or people that could evoke memories of the trauma. He could no longer actively describe the face of the perpetrator, and there was also a reduced interest or reduced participation in leisure activities. Criterion D was also met because the plaintiff had experienced difficulties in sleeping through the night, reported excessive vigilance and an exaggerated startle reaction. Finally, the time criterion and the impairment in social functional areas are also met. Thereafter, based on the clinical findings, the diagnosis of a persistent post-traumatic stress disorder can be made. The expert Dr. E. nevertheless makes certain restrictions with regard to the question of the presence of the full picture of a post-traumatic stress disorder. On the one hand, after several weeks of observation of the plaintiff, this diagnosis was not made in the AHG clinic B.P. On the other hand, the test results carried out by the expert are conspicuous. The plaintiff had achieved a total value in the BDI test, as it occurs in a severe depression. However, such had neither existed clinically nor was it ever diagnosed in the past. A high-scoring phenomenon was also shown in the BSI test.

The expert Dr. . Taking these abnormalities into account, comes to the conclusion that the diagnosis of post-traumatic stress disorder in the plaintiff cannot be made with irrefutable certainty. In any case, the plaintiff suffered from trauma-specific symptoms that could only be traced back to the trauma suffered on 04.09.2010. It convinces the Senate that the expert Dr. E. attributes these impairments to the plaintiff directly to the attack and not to physical impairments suffered in the process. This is particularly with regard to the mentioned criterion A, according to which a person was confronted on the one hand with an event that actually or threatened death or serious injury and on the other hand was associated with intense fear, helplessness or horror, even for medical laypeople easily understandable. These psychological impairments in the plaintiff are therefore based on a psychological reaction and are subject to the exclusion of benefits in Section 2 IV AUB 88.

b)

The Senate is also convinced that the plaintiff's organic tinnitus did not contribute to the psychological impairment and that the prerequisites for the exclusion of benefits are also met in this respect. The Senate assumes that the exclusion of benefits would not apply if the physical tinnitus caused by the accident had become one of the causes of the psychological complaints (see BGH, judgment of October 19, 2016, Az. IV ZR 521/14, quoted from juris, paragraph 14). But there is also no co-causation of the tinnitus for the physical complaints.

The expert Dr. . has based this assessment convincingly and comprehensibly on the fact that the plaintiff has, on the one hand, clear symptoms of a trauma-related disorder from which the plaintiff suffers anyway regardless of the tinnitus, and on the other hand the plaintiff does not “suffer” from the tinnitus.

The clear presence of a trauma-related disorder can already be seen from the statements above. In this respect, it is only doubtful whether the plaintiff had the full picture of a post-traumatic stress disorder at the time the disability entry period expired, but not the existence of a trauma-related disorder itself Has referenced anxiety symptoms. The Senate is convinced when the expert states that it is neither pathophysiologically nor psychodynamically understandable why tinnitus should cause the symptoms of a trauma-related disorder in the sense of an incomplete post-traumatic stress disorder. Rather, it can only be the other way round, that the post-trauma disorder has contributed to the development of tinnitus due to the often increased stress levels it causes; it cannot be the case that the psychological complaints are consequences of tinnitus. Doubts about the correctness of this assessment do not arise in particular against the background that the expert Dr. E. stated in the oral explanation of his report to the Senate that tinnitus was a complicated matter. Because the expert Dr. E. has further explained that tinnitus can lead to psychological stress, but this was then specifically based on the tinnitus. For example, there is a specific avoidance behavior, but tinnitus does not lead to reverberation memories. The by the expert Dr. E. The delimitation made is also convincing with regard to the depressive symptoms alleged by the plaintiff. In this respect, the expert has explained that individual symptoms cannot be considered in isolation, but an overall assessment should be made.

As part of this overall assessment, the expert Dr. E. Understandably, the wording already mentioned was used, the plaintiff did not suffer from tinnitus.In this respect, reference is first made to the above statements on the extent of physical tinnitus. This assessment by the expert is also supported by the expert Dr. E. The plaintiff's explorations. In the context of the exploration of April 23, 2014 (p. 11 ff. Of the report of May 12, 2014) the plaintiff did not mention the tinnitus despite a multi-page description of his complaints. It is understandable if the expert excludes a "suffering from tinnitus" because, according to his professional experience, a person affected who has become ill from the tinnitus describes his illness completely differently and immediately says that he has tinnitus and what impairments it has lead. This assessment convinced the Senate, also taking into account the further investigation of the plaintiff carried out on behalf of the Senate by the expert on October 24, 2016. It is true that the plaintiff stated in the course of this investigation that when he woke up in the morning, the tinnitus was stronger, he also woke up from the tinnitus. He also stated that the tinnitus was still there and had not changed. The tinnitus is loudest in the morning. It would also happen again and again during the day that the tinnitus was loud and literally trumpeted in his ear (p. 206 GA). On the other hand, the plaintiff described that the tinnitus was generally acceptable (p. 206 GA). He still knows that the tinnitus was louder in September 2011 than it is today. How it was exactly and what adverse effects this had led to, he could no longer say. The tinnitus was more of a fundamental problem. He could no longer say what he might not have done because of the tinnitus. (...) He couldn't imagine that he hadn't done anything because of the tinnitus. (...) But over the years he had never been depressed or desperate because of the tinnitus.

With regard to the information provided by the plaintiff on the intensity of the tinnitus in the context of the current exploration, reference is made to the above statements on the contradiction to earlier, less interest-based information provided by the plaintiff. The plaintiff's description of - not given - avoidance behavior caused by the tinnitus, as well as the formulation that overall the tinnitus is acceptable, confirms the assessment of the expert Dr. E.

Finally, no doubts as to the correctness of this assessment arise from the submitted statement by the qualified psychologist. dated 02.09.2015 (sheet 242 GA) from the statement by Prof. Dr. Hey dated August 4th, 2015 (p. 137 ff. GA).

With regard to the opinion of the qualified psychologist F., the expert Dr. E. convincingly explains that this hardly results in its own assessment. The only diagnosis mentioned in this statement is that of post-traumatic stress disorder. There are no points of contact for a mental illness based on tinnitus.

The statement by Prof. Dr. . dated 08/04/2015 does not lead to doubts as to the correctness of the statements made by the court-appointed expert Dr. E. Dr. . points out in his report of October 26, 2016 (there page 204 GA) that Prof. Dr. . essentially reflects the plaintiff's anamnesis. On the matter, Dr. . convincing that contrary to the assessment of Prof. Dr. . in the case of the plaintiff, the full picture of a post-traumatic stress disorder could not be determined. In this respect, reference is first made to the above statements. In addition, Dr. E. That the course of post-traumatic stress disorder is characterized by the fact that after an interval the specific symptoms begin and initially intensify. Then the symptoms subside and even heal. It is true that in rare exceptional cases there is not a cure, but rather a chronification of the symptoms. In such a case, however, a different diagnosis must be made, namely that of a personality change after extreme stress. Since in July 2011 in the psychosomatic clinic B.P. and in September 2011 in the M.hospital in H. the presence of a post-traumatic stress disorder could not be confirmed, it was wrong for Prof. Dr. Hey even for August 2015, the full picture of a post-traumatic stress disorder in connection with the 2010 robbery was confirmed.

Dr. . has also explained with convincing justification, as already stated, that the post-traumatic stress disorder was caused by the trauma in the form of the attack and not by the tinnitus. Therefore, the diagnosis of an adjustment disorder in the case of problems coping with symptoms in chronic tinnitus with triggering of PTSD symptoms cannot be understood. In addition, the defined by Prof. Dr. Hey indicated ICD10 number F43.24 an adjustment disorder with predominant disorder of social behavior. The plaintiff never indicated such disturbances. Regarding triggering, Dr. E. explains that the tinnitus is present and is also capable of triggering certain symptoms. Nevertheless, the disease is not based on tinnitus; the tinnitus is neither a cause nor a contributory cause of the post-traumatic stress disorder that is no longer present in the full picture. Both are completely independent of each other. It's just that the tinnitus can trigger memories of the attack. To clarify, Dr. E. Comparison with holiday memories based on drinking wine on a terrace in the evening. Dr. E. then made the distinction between the psychological stress caused by tinnitus on the one hand and the psychological stress on the plaintiff on the other hand based on the plaintiff's own descriptions, some of which are reproduced above. Its assessment is based on what the plaintiff himself said. The plaintiff's descriptions did not go beyond the fact that he found the tinnitus bothersome. Someone who gets sick from tinnitus describes it completely differently than the plaintiff did to him.

On the basis of this assessment by the expert Dr. E., which the Senate follows, claims of the plaintiff from the accident insurance between the parties according to § 2 IV AUB 88 are also excluded.

The plaintiff's appeal must therefore be rejected.

III.

Since the plaintiff's appeal with regard to the main claim is unsuccessful, the ancillary claims pursued do not exist either.

The decision on costs is based on Section 97 (1) ZPO. The decision on the provisional enforceability is based on §§ 708 number 10, 711 sentence 1 ZPO.

The revision is not to be admitted because the legal case is neither of fundamental importance nor is the revision necessary for the further development of the law or to ensure uniform case law.