Insurance Australia Limited t/as NRMA Insurance v Mangogna
[2023] NSWPICMP 588
•14 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Mangogna [2023] NSWPICMP 588 |
| CLAIMANT: | Sophia Mangogna |
| INSURER: | IAG Ltd t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Terence O'Riain |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 14 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute about whether the claimant suffered a threshold injury in a motor accident on 8 January 2021; claimant delayed reporting nexus between spinal injury and 2021 accident because she hoped she would get better; insurer applied for review of Medical Assessor (MA) Woo’s certificate dated 23 October 2022; insurer disputes that the accident was of sufficient force to cause non-threshold injury; Medical Assessor certified that the 2021 accident caused a non-threshold injury and that claimant delayed reporting her injury due to self-reported social anxiety disorder; insurer based review on MA failing to provide reasons for accepting that claimant’s psychological disorder was her reason for not reporting the injury immediately; insurer relied on biomechanical examination of its insured’s account of the incident and records of repairs to vehicle which claimant was riding; Panel did not re-examine but MA Gibson questioned claimant on audio-visual link about causation; Panel considered treating neurologist supported link between 2021 accident and lumbar spine changes that caused radiculopathy; claimant consistent about why she did not report injury sooner; clinical notes provided to Panel outlining history of social anxiety disorder supported MA Woo’s approach as to why claimant failed to report injury; treating psychologist’s notes showed claimant has social anxiety before the accident; claimant displayed maladaptive approach to self-care; atypical to delay reporting link between back pain and accident; reasonable to consider impact of claimant’s mental disorder as to why she delayed reporting; does balance of evidence supports nexus between accident and lumbar spine injury; Briggs v NRMA considered; Held – social anxiety disorder could impact on claimant’s reasons for delaying her report on nexus between her injury and the car accident; balance of evidence supports material contribution of accident to back injury; the Panel was satisfied that the accident caused the lumbar spine injury, which was not a threshold injury as defined by section 1.6; MA Woo’s certificate affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The following injury caused by the motor accident: · lumbar spine– disc protrusion at the L4/5 and L5/S1 levels with left lateral recess stenosis and compression of the left S1 and S2 nerve roots with verifiable radiculopathy is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017; · the claimant has established the accident caused her to suffer a non-threshold injury, and · the Review Panel affirms Medical Assessor Woo’s certificate dated |
REASONS
Background
Pre-accident medical history and relevant personal details
Ms Mangogna (the claimant) who is now 21 years old, was born in Australia and finished high school in Year 11.
Past health/injuries
She has a longstanding history of social anxiety, which is offered as a reason for leaving school after Year 11. This anxiety is relevant to the question about whether the claimant’s history about the injury should be accepted.
She was involved in a motor accident in 2015 (2015 accident) when she was 13 years old. She was the front seat passenger with two younger sisters in the back seat. Her mother was the driver of a Toyota Kluger when another car struck the Kluger in the rear.
Ms Mangogna did not go to the hospital. She attended her general practitioner (GP)
Dr Shanmugam. She did not require any specific treatment. She did not have a CTP claim for the 2015 accident.
Subject motor accident
On 8 January 2021, Sophia was the back seat passenger of the same Toyota Kluger. The driver was her mother. She was seated in the back. The front passenger seat was vacant.
The Kluger was stationary in a car park waiting to park when another vehicle reversed out of a parking space and collided into the passenger side of their vehicle.
The police and ambulance did not attend so her mother drove the Kluger home. The Kluger was repaired.
The claimant’s claims that she felt immediate lower back pain at the impact of the accident. The insurer disputes that the claimant suffered any injury in the accident because it relies on a statement attributed to the insured driver and car repair records, which means–it says–the collision was very light. The history is set out further below. It also relies on a significant delay before Ms Mangogna told her treating health practitioners about the accident.
The claimant claims her back pain persisted and she developed right leg pain.
She commenced working as a teacher’s aide on 29 January 2021. It has been recorded that standing at work and bending to put away books aggravated her back pain.
Her GP Dr Shanmugam referred her for a lumbar spine MRI and then referred her to orthopaedic surgeon Dr Bhisham Singh who reviewed her via telehealth on 31 March 2021. He recommended a CT-guided cortisone injection. She had the injection which gave her some relief.
Dr Singh reviewed her on 12 May 2021 and recommended decompression surgery for the lumbar spine at L4/5 and L5/S1. Dr Singh performed that surgery on 18 June 2021.
Claim
Ms Mangogna did not lodge her application for personal injury benefits (claim) until
April 2021.
The insurer insured the owner and/or driver of the vehicle at fault for liability to pay to the claimant any statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
As a result of the motor vehicle accident on 8 January 2021 the claimant alleges she suffered lumbar spine injuries.
The claimant claimed statutory benefits under part 3 of the MAI Act for treatment and care benefits under Division 3.4.
On 6 September 2021, the insurer issued a Liability Notice – Benefits After 26 Weeks advising that liability for the payment of statutory benefits would cease on 9 July 2021. Its decision was based on the claimant having sustained a ‘minor injury’ in the accident.
Critically, the insurer’s decision was based on whether the accident caused the lumbar spine injury, rather than the nature of the injury. The insurer contends that Ms Mangogna cannot prove that such a low impact accident could have injured her lumbar spine.
The claimant sought an internal review, which affirmed the earlier decision. The claimant lodged an application to the Personal Injury Commission (the Commission) to resolve this dispute.
Medical Assessor Woo conducted the original medical assessment on 12 October 2022 and produced a certificate dated 23 October 2022. Medical Assessor Woo found that the accident caused the lumbar spine injury and that it was not a minor injury for the purposes of the MAI Act.
The insurer applied to the Commission to refer Medical Assessor Woo’s certificate to a Review Panel (the Panel), which was within 28 days after the parties were issued with the original certificate.[1]
[1] Section 7.26(10) of the MAI Act.
On 13 December 2022, the President’s delegate referred the medical assessment to a Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
The Panel notes the claimant’s submissions that the motor accident injured the claimant with ongoing symptoms and the injury is not a minor injury for the purpose of the MAI Act’s s1.6.
The President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Woo’s certificate (the Review).
Legislative framework
Statutory provisions
The Motor Accident Injuries Amendment Bill 2022 amended the MAI Act so that from
1 April 2023 the term “threshold” substitutes for “minor”. The terms are interchangeable. This decision will retain the former term when talking about Medical Assessor Woo’s decision and the insurer’s earlier decision, but the current term will be used when addressing our certificate.
At the time this dispute became apparent s 1.6 of the MAI Act defined a minor injury to include a “soft tissue injury” or a “threshold psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[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 membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a threshold injury for the purposes of the MAI 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 the 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 MAI 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
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
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.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(e) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means the injury is to be assessed as a threshold injury.
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 Merit Reviewer or a Medical Assessor.[3]
[3] Section 41(2) of the 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the accident and whether they were threshold or satisfying the threshold as defined under the MAI Act.
The Review Panel, comprised of two Medical Assessors and a Member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[5] and Insurance Australia Ltd v Marsh.[6]
[5] [2021] NSWCA 287 at [40], [41] and [45].
[6] [2022] NSWCA 31 at [11], [21] and [64].
The Review Panel adopts the reasoning in David v Allianz Australia Ltd[7] that radiculopathy can be present at any time to satisfy the concept that the injury is not threshold for the purposes of the MAI Act.
[7] [2021] NSWPICMP 227 at [84]-[104].
We also adopt the reasoning in Lynch v AAI Ltd[8] that the claimant bears the onus of proof in establishing any injury is not a threshold injury for the purposes of the MAI Act.
[8] [2022] NSWPICMP 6 at [44]-[62].
The claimant must satisfy this Panel on the balance of probabilities that the accident caused her lumbar spine injury.
The rules of evidence do not apply to this Review. The Panel may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
Review
On 8 March 2023 the Panel met via telephone.
The Panel decided eventually to consider afresh all aspects of the assessment under review as it was apparent all injuries were in dispute as to their threshold injury status.
The Panel considered the need for re-examination in the light of the Court of Appeal’s decision in Sydney Trains v Batshon,[9] which prescribes a presumption favouring re-examining claimants in reviews.
[9] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
The Panel considered re-examining the claimant in person would not assist the panellists to decide the facts in issue because there is no question Ms Mangogna has verifiable radiculopathy and changes to her spine after surgery.
In order to assess the causation the Panel resolved to question Ms Mangogna about the history. This could be addressed with a video conferencing consultation.
It was decided Medical Assessor Gibson would question the claimant on behalf of the Panel on 11 April 2023 at 5pm via Teams.
The claimant was directed to provide copies of any scans earlier than the accident, but it was confirmed that there were none to produce.
Due to technical difficulties the Teams medical examination was postponed until
23 May 2023.The Panel met again on 10 July 2023 to clarify the discussion about the earlier Medical Assessor's findings.
On 29 August 2023, the Panel referred this dispute to the President of the Commission to dismiss it because the Panel was satisfied that the insurer’s review application was lacking in substance.
There was an unchallenged finding on a non-threshold injury already extant when this dispute was instigated. The Panel opined that this satisfied the criteria in rule 77 of the Commission Rules on dismissal.
Principal Member Harris, as the President’s delegate decided on 13 October 2023 that the Panel’s opinion was incorrect and confirmed that the Panel must proceed to make its decision.
Assessment under review
The Commission referred the following dispute to Medical Assessor Woo for assessment:
(a) lumbar spine: whether the motor accident caused the disc protrusion at the L4/5 and L5/S1 levels with left lateral recess stenosis and compression of the left S1 and S2 nerve roots with verifiable radiculopathy.
Medical Assessor Woo considered the claimant’s history of severe social anxiety disorder.
He opined that she is introverted and has difficulty communicating and expressing herself. He noted that the main reason for her leaving school in Year 11 was because of bullying.
He did not have access to the Cherished Minds Child & Adolescent Psychology[10] report(Cherished Minds report), which confirms that Ms Mangogna feared confrontation or speaking up for herself.
[10] MASC 2–SR Assessment Report for Sophia Mangogna dated 8 December 2018.
He also opined her delay in reporting back pain to her treating doctors was likely related to her psychological issues. He opined that he “believed” the accident caused the lumbar spine injury.
Documentation
The Panel considered the following documentation:
· Medical Assessor Woo’s certificate dated 23 October 2022;
· the insurer’s application for review and attached documents identified as A1 including
Dr Andrew McIntosh’s collision and biomechanics report dated
23 March 2023 [AD4] (Dr McIntosh’s report);
· Reply and attached documents identified as R1;
· the President’s delegate’s reasons dated 13 December 2022 referring this matter to a Panel, and
· all the documents which were provided to Medical Assessor Woo before the assessment under review.
The claimant submitted additional evidence with Cherished Minds report in the form of notes and past assessments regarding the claimant’s social anxiety.
The Member inquired to the Disputes Officer to confirm whether Ms Mangogna had other medical disputes on foot. As a result psychiatric Medical Assessor Michael Hong’s certificate dated 6 September 2022 was produced with the parties’ submissions. This was relevant to the accident circumstances related during that examination.
It was also relevant that the Member viewed the insurer’s submissions dated
10 July 2023 in another medical dispute, which included a note from the insured driver dated 29 September 2021 appearing to disclaim the draft statement’s contents, which was not offered to this Panel with the biomechanics report.Dr McIntosh’s report does not refer to the insured’s note. The insurer’s submissions on this point are summarised below.
SUBMISSIONS
Insurer’s submissions
The insurer submits that the claimed injuries are threshold injuries in accordance with the MAI Act.
The insurer’s submission is that the accident’s mechanism could not have caused the injuries the claimant alleges.
The insured’s description of the accident and associated damage [M10452583/21 – A1] stating at [16]-[19] is noted with writer’s emphasis:
“I was slowly reversing when I felt more than heard a crunch. I looked in the rear vision mirror and there was a big car behind me. I thought ‘what the hell is she doing there.’? I did not see the car when I started to move back. It just appeared and the back of my car hit the side of the other car.
The impact was about a 2 out of 10. I had not been moving fast when it happened. The lady who was driving the big SUV came around to me and said, ‘Are you alright?’ I said ‘Yeah. I’m alright.’ She said, ‘Do you want a drink of water?’ I said, ‘No I don’t need anything.’
The woman was not injured at all. She looked fine. She was not limping. She was not bleeding. She did not complain of any injuries to me. There were no passengers in her car that I know of. The impact of the cars was minor.
I got out of my car and went to the lady’s car and looked at her passenger side at the rear. I did not notice any passengers. No one got out of the car. I looked at her car and the lady pointed out a scratch over the rear wheel and I said ‘Is that it? That’s a scratch.’”
The insurer provided property damage file and associated photos [A2].
The mechanism of accident, given its low impact nature, could not and did not cause immediate injury or pain to the claimant’s lumbar spine.
The claimant commenced a new job on 29 January 2021 and physiotherapy on 3 February 2021, and the first GP consultation on 11 February 2021.
The initial consultation by Physio360 is on 2 March 2021 [A3] rather than the reported 3 February 2021 on the statutory declaration. The entry does not record the accident recording with regards to medical history “nil issues voiced”. It records the back complaints have been a progressive deterioration rather than attributed to any specific event:
“ongoing issue which has gotten worse over months. low back pain and referral into L glute and HS. standing long time feels back pain and L leg pain, sitting long time is less painful than it’s been but still gets pins and needles after long time. walking has been a bit better lately but still getting numbness in the leg after long time. getting scan on Saturday MRI”
The various reports to medical professionals with no definite history of injury on 11 February, 2 March, 18 March, and 25 March 2021 clinical entries unequivocally support the threshold nature of the accident, the lack of acute injuries, and overall, the inconsequential nature of the accident with respect to the claimant’s present complaints which are of a coincidental nature.
All the records before 15 April 2021 fail to mention the accident and record the back issues to be of non-traumatic aetiology. Following 15 April 2021 the records report the claimant felt immediate pain which did not improve and progressively worsened.
The mechanism of accident could not and did not cause an immediate injury to the claimant. This is reflected in the contemporaneous medical records. The subsequent onset of back pain first recorded on 11 February 2021 appears to be constitutional, which is likely secondary to prolonged standing and other demands of the new position.
Given the above, on the balance of probabilities, the accident could not be a material contributory factor to any injury. The claimant did not sustain any threshold or non-threshold injury in the accident.
The subsequent onset of back pain and the subsequent investigations, treatment, and radiculopathy, although unfortunate, did not have a “definite history of injury”.
The insurer was asked to provide submissions to respond to the fact that material filed with other disputes in the Commission showed that the insured driver had withdrawn the jurat on the statement she provided to the factual investigator and stated she would not cooperate with the insurer.
The implication was that the biomechanical report may have been based on a flawed factual basis in respect of the insured’s account. The insurer was given the opportunity to respond to this proposition and replied on 3 August 2023.
The insurer acknowledged that it had overlooked the handwritten letter, which makes it clear that the insured does not adopt the parts of the signed statement she has marked.
The insurer says the insured did not disclaim the statement. It is quite clear which parts she does not accept. Those parts are not relevant to the question of the impact in the accident.
It is the insurer’s submission that the insured driver read, amended and adopted the statement having made her alterations.
It is submitted that the fact that the insured driver raised no concerns and made no alterations to paragraphs 14, 15, 16, 17 and 18, support the conclusion that this reflected her recollection and observations of the circumstances of the accident and the nature of the impact.
The insurer submits that the statement in this proceeding cannot be categorised in the same way as the statement of Mrs Douglas in Zaya v Damirdjian [2022] NSWCA 203 (Zaya). In that matter the Court of Appeal observed that the Trial Judge had accepted the evidence of Mrs Douglas, despite her evidence being internally inconsistent with statements she had made earlier, the evidence of three other witnesses and with records obtained from the RMS.
The insured driver’s amendments to the statement do not deviate on the material facts in regard to her description of the accident.
The insured driver’s statement is also consistent with the claimant’s statement dated
22 November 2021 in which she conceded at paragraph 13 that “I am not sure of the force of the impact”.Dr Andrew McIntosh’s report refers to the relevant paragraphs that were not altered and were adopted by the insured driver when she signed at the end of her statement.
The expert also considered the described vehicle damage and observable vehicle damage depicted in the photographs and the property damage claim file, which the insured driver refers to.
The insured driver’s version is consistent with the objective evidence of the minor nature of the collision and the expert report is both probative and logical, given his conclusions are accurate and relied on a factual basis that is not flawed.
Claimant’s submissions
The Panel notes the claimant’s submissions largely deal with why Medical Assessor Woo’s certificate did not satisfy the criteria for review, i.e., that the certificate was incorrect in a material respect. However, the submissions are also relevant to the Panel’s considerations.
The insurer submits that the Panel must make relevant inquiries about why the claimant delayed reporting her back pain to her treating doctors.
Relevantly to the Panel the claimant submits that at page 5 of his Certificate, Medical Assessor Woo stated that:
“Sophia apparently did not complain of lower back pain when she attended her treating doctors Dr N Romeo on 22/01/2021.
She commenced working as a teachers aid on 29/01/2021 and she had increasing back pain related to standing at work.
She attended Dr Shanmugan on 11/02/2021 to complain of lower back pain.
I note the history of severe social anxiety. She is introverted and has difficulty to communicate with other people and express herself. This is the main reason for her to leave school in Year 11 because of school bullying.
Her delay in reporting back pain to her treating doctors is likely related to her psychological issues.”The insurer has failed to produce sufficient evidence to demonstrate that a diagnosis that the accident caused disc protrusion at the L4/5 and L5/S1 levels with verifiable radiculopathy is incorrect.
The claimant disputes the insurer’s allegation that there was no record of onset of back pain immediately after the accident.
The claimant’s signed a statutory declaration dated 31 May 2021, which records that she experienced an immediate onset of pain in her lumbar spine and left leg following the accident. She did not immediately seek medical treatment as she thought her pain would subside within a few days or within a few weeks.
On 2 March 2021 the claimant commenced physiotherapy and massage treatment Physio360 in Gledswood Hills under the care of Ms Rachel Pisarev. She attended approximately seven sessions of physiotherapy treatment without any noticeable improvement and until her treating physiotherapist advised that physiotherapy treatment alone would not suffice. The claimant had attended her GP on 11 February 2021 for a referral for a lumbar spine MRI.
On that occasion the claimant informed her GP about her lumbar spine injury.
The Panel notes that the statement does not expressly state that Ms Mangogna told her GP that she was in a car accident, although she refers to the GP not advising her that she could make a claim.
The claimant submits that she should not be penalised for her GP failing to record a reference to the car accident in his notes on that date.
The claimant says her treating doctors confirm the causation chain between the claimant’s lumbar spine injury and the accident. She refers to Dr Bisham Singh, her treating orthopaedic surgeon’s report dated 31 March 2021. Dr Singh confirmed that “her symptoms appeared after a car accident in January this year”.
In his report dated 12 May 2021, Dr Singh further confirmed that the claimant presented with “persistent back and leg pain with difficulty mobilising the past several months following a car accident”. Dr Singh went on to opine that “she was asymptomatic before the accident and had back and leg pain following. It is therefore more likely than not that her condition is related to the car accident, and that the accident is a direct contributor to her current condition”.
Her GP issued a Certificate of Capacity dated 15 April 2021, which diagnosed her with “MVA with lower back injury”. The GP does not agree with a hypothesis that her new job role caused her lower back pain.
The claimant’s treatment providers who are familiar with her injuries and consult with the claimant on a regular basis should be accepted rather than the biomechanical report.
Irrespective of whether there was a delay in the reporting of symptoms, the reported onset of back pain following a causative injury can be delayed. Two weeks delay is not unusual according to Fairbank J. [11]
[11] The thoracic and lumbar spine. Medicolegal reporting in orthopaedic trauma. London: Churchill Livingstone; 2002.
The insurer was incorrect in alleging that it is not open to the Panel to find that the claimant’s psychological or social anxiety prevented her from reporting her complaints or the accident to her GP.
The claimant’s mother, Maria Mangogna, attended all Commission’s assessments as the claimant’s support person because of social anxiety. The claimant needs her mother as a support person as a result of her severe social anxiety.
The claimant also refers to the attached clinical notes from Cherished Minds Child & Adolescent Psychology which detail the claimant’s long-standing and pre-existing social anxiety disorder and include an assessment undertaken when she was 15 years old. The claimant’s total score was in the very elevated range (T-71) and an anxiety probability score in the very high range.
The Cherished Minds report includes an assessment report dated 12 February 2018 detailing the claimant’s impaired cognitive domain and her avoidance behaviour in relation to raising issues or concerns with others. Consistent with the contemporaneous evidence now before the Review Panel, the claimant submits that it is clear that the claimant’s psychological comorbidities were the cause of, or at the very least, a significant factor in the delay in the reporting.
The insurer has not established that the commencement of her new employment with the NSW Department of Education could cause the claimant’s low back pain. The accident caused the L4/5 and L5/S1 levels disc protrusion with verifiable radiculopathy.
Re-examination findings
Medical Assessor Gibson interviewed Ms Mangogna via Teams. Her mother, Maria, attended as a support person. The Medical Assessor advised Ms Mangogna she was to provide the history; however, her mother still interjected several times during the assessment. Mrs Mangogna was reminded she could not contribute, and the history would need to come from her daughter.
Ms Mangogna is currently 21 years of age. She provided a clear history and expressed herself in a straightforward and confident manner.
She told the Medical Assessor that she had sustained three herniated discs in her lumbar spine and had undergone spinal surgery in June 2021 as a consequence of the accident.
PAST MEDICAL HISTORY
Ms Mangogna denied any prior symptoms, injuries or investigations of her lower back.
There had been a 2015 accident, but no specific injuries had been sustained.
There were no relevant medical or surgical issues apart from sinusitis.
PERSONAL AND SOCIAL HISTORY
Ms Mangogna lives with her parents and two sisters.
She completed Year 10 in 2017, but because she was suffering from social anxiety, she completed Year 11 remotely. When asked about this problem, she said it was an issue, particularly in her teens. She had approximately 10 sessions of psychological therapy which helped a bit. She still has some problems, she said, particularly she becomes anxious and nervous at work or in social situations. She had never been prescribed any medication for this condition.
She last worked in December 2021. This was her first job and was a 12-month fixed-term position as a teacher's aide in a primary school. Her mother worked at the same school. Ms Mangogna said she left once the contract ended, but also because she was experiencing low back pain.
HISTORY OF THE ACCIDENT
Ms Mangogna had been a seat-belted back seat passenger in a Toyota Kluger being driven by her mother. She was seated on the left side of the vehicle. The accident occurred on
8 January 2021. Their car was stationary when another vehicle reversed out of a parking space and collided with the passenger side of their car.
Police and ambulance did not attend. The vehicle was later repaired and the family still uses the vehicle.
Ms Mangogna described the impact as being a side-to-side jolting, but she didn’t make any impact with the inside of the car. At the time, there had been "a bit of pain across her low back”. She said her mother had also been injured in the accident.
She thought the pain would go away; however, over the next few weeks, the pain became progressively worse, and eventually, she noticed pins and needles in her left leg and foot.
She initially had massage therapy with a female masseur in a local shopping centre. She said this commenced in February. She thinks she had 3-4 sessions, but it hadn’t really helped.
She commenced physiotherapy in March with Physio360. She didn’t mention the accident at that time. She couldn’t explain to Medical Assessor Gibson why she hadn’t mentioned the accident. Her mother interjected that this was because of her social anxiety and the claimant was more anxious with a male therapist, but when asked about this, it appeared that a female therapist was treating her.
Ms Mangogna later visited her GP at the Edensor Road Family Medical Centre. Medical Assessor Gibson asked her about the clinical records of Dr Romeo of 22 January 2021, where no mention was made of the accident or any low back complaints. She could not recall why she had not mentioned her low back symptoms or the accident.
The next review was Dr Shanmugam on 11 February 2021, where the doctor noted there was a history of (H/O) low back pains but "no definite H/O injury, once MRI/CT scan L/S spine." Ms Mangogna could not recall why the accident had not been mentioned at this stage.
The first time Ms Mangogna mentioned the accident to her GP was on 15 April 2021. She told her GP that she had persistent pains in her lower back since the accident. Ms Mangogna lodged her application for personal injury on the same day.
Her GP referred her to Dr Bhisham Singh, who advised a CT-guided cortisone injection. She confirmed that this provided some relief. At further review on 12 May 2021, decompression surgery was recommended, and Dr Singh performed this on 18 June 2021.
It was noted that Ms Mangogna had commenced work in late January 2021. When asked, she said that she had not mentioned her back pain or any potential restriction she may have when starting work. She admitted that her back felt worse when she was standing at work. She said she would be standing at work for playground duty for lunch and recess, up to about 40 minutes at a time. She could not recall performing any heavy duties at work. She would sit with the children for up to an hour. She would pack books away in the library, which she found had also aggravated her low back pain.
CURRENT COMPLAINTS
Ms Mangogna described low back pain being present sometimes, varying in frequency, averaging 5-7/10 severity. Since the spinal surgery, there is pain in the right leg and the left leg. The low back pain is worse sleeping, bending, standing for 20-30 minutes, sitting for an hour, and lifting, for example, laundry baskets.
The left leg pain is present most of the time and rated 8/10 severity. It extends over the posterior and medial thigh, back of the knee, back of the calf, to the small toes of the left foot, involving all the toes, both the bottom and top of the toes.
She has pain in the right thigh, with a similar distribution but lower intensity, rated at 5/10 severity. There is numbness and pins and needles over the back of the leg and the dorsum of the foot.
CURRENT TREATMENT
Ms Mangogna takes ibuprofen or Mobic up to three times a week and occasionally paracetamol. There was no other medication.
There was no current physiotherapy.
She visits the GP monthly for certification purposes.
She had visited Dr Singh, her specialist, in the last few weeks. She underwent another MRI scan and was to have a plain X-ray.
Panel deliberations
The Panel decided it would adopt Medical Assessor Gibson’s examination report as evidence in its conclusions.
The Panel must satisfy itself there is sufficient evidence that would allow the Panel to feel actual persuasion that the injury occurred in the accident, which goes beyond conflicting inferences of equal degrees of probability that the claimant had, inter alia, sustained injury.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a threshold injury, Part 6 on causation in the Guidelines is specified as applying only to the assessment of Permanent Impairment.
Briggs v IAG Limited trading as NRMA Insurance[12] (Briggs) his Honour Justice Wright stated at [35]:
[12] Briggs [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
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
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.”
In Briggs Wright J reminds the Panel 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’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
The accident appears to have been low impact because ambulance or police were not called; the car was driveable and later repaired. Ms Mangogna did not complain or seek medical attention at the time.
Furthermore, she had the opportunity to complain about the injury when she saw her GP soon after the accident without mentioning the accident or any low back complaints.
However, Ms Mangogna maintains that she had not complained about the source of her injury until April 2021 because she thought her back would get better and she was unaware of the process needed to make a claim.
After the accident she commenced a full-time job, and only after this do her low back complaints feature in the clinical notes. This is relevant because she identifies several work factors that were contributing to her low back pain. However, there is no evidence which supports the work causing an injury, which on the scans appeared to be traumatically sourced.
The claimant’s reliability is in issue. The insurer is not alleging that she is attempting to mislead the Panel, but there are inconsistencies with her statements and the clinical records.
The offered evidence is not limited to the claimant’s lay evidence, but it includes biomechanical evidence based on the insured’s version of the accident, smash repair documents and medical evidence.
The Member asked the Disputes Officer to confirm whether Ms Mangogna had other medical disputes on foot. As a result psychiatric Medical Assessor Michael Hong’s certificate dated 6 September 2022 was produced with the parties’ submissions in that dispute. The certificate confirms the claimant’s mother was present during this examination.
This certificate was relevant to the accident circumstances related during that examination. The report refers to the claimant’s mother providing a statement about the accident, which was not provided to this Panel. It also refers to the accident being a high speed collision, but it was unclear if the claimant stated that or it was part of the mother’s narrative.
The Member inquired of the parties about this statement. The insurer states it does not hold the mother’s statement.
It was also relevant that the Member also viewed the insurer’s submissions in respect of a permanent impairment dispute dated 10 July 2023, which included a note from the insured driver dated 29 September 2021 disclaiming the draft statement’s contents.
As the physical threshold injury dispute is only related to causation the omitted material would have assisted this panel to weigh the veracity and consistency of the accounts.
The Panel notes the insured driver witness has crossed out the jurat, said in her note she is returning it unsigned (although she signs one page) and declines to have any further contact with the insurer/investigator.
The insurer was asked to make submissions on whether the disputed factual matters limit the biomechanical expert evidence’s value if Dr McIntosh’s report does not refer to the witness backing away from what was in the statement
This Panel was concerned that an expert opinion’s weight is reduced if the accuracy of the underpinning factual basis is flawed. The insurer’s detailed submissions on that point are summarised above.
The insurer also relies on the lack of a contemporaneous injury complaint and the claimant commencing work which may have aggravated a constitutional condition to rebut
Ms Mangogna’s case that she felt immediate pain after the accident, which turned out to be a significant spinal injury.
There was no constitutional condition though.
As a result of Medical Assessor Woo’s assessment it has become part of the claimant’s case that her lack of complaint is due to her documented social anxiety disorder, which was well established before the 2017 accident. This condition led to her leaving school early, and to avoid activities and situations where she perceives she may be exposed to ridicule.
The claimant's statutory declaration dated 31 May 2021 refers to physiotherapy with Physio360 commencing on 3 February 2021. Further, the declaration states that the claimant saw her GP on 11 February 2021 on her physiotherapist's recommendation.
The Panel notes that there are disparate references to when physiotherapy commenced, as it is recorded in reports and the insurer's initial submissions dated 3 November 2021 that the GP referred the claimant to physiotherapy on 11 February 2021. The GP's clinical note on that date does not refer to physiotherapy.
However, the clinical note from Physio360 confirms treatment commenced on 2 March 2021, which was after she commenced work on 29 January 2021.
The notes record on 2 March 2021 the following:
"ongoing issue which has gotten worse over months. low back pain and referral into L glute and HS. standing long time feels back pain and L leg pain, sitting long time is less painful than its been but still gets pins and needles after long time. walking has been a bit better lately but still getting numbness in the leg after long time. getting scan on Saturday MRI"
Noting the inconsistency about when she first sought treatment and the delay in reporting a nexus with the accident the insurer submits there is considerable uncertainty in how accurate Ms Mangogna’s history is.
Although the evidence does not demonstrate the cause of the lumbar injury with scientific certainty, we must consider the Briggs causation test.
We find on the balance of probabilities that the accident caused disc protrusion at the L4/5 and L5/S1 levels with verifiable radiculopathy. The reasons for that conclusion are as follows:
(a) there is no record of a lumbar injury before or after the accident;
(b) the 2015 accident did not identify a lumbar injury;
(c) Ms Mangogna was 18 years old at the time of the accident without any records of constitutional spinal conditions;
(d) the MRI scans depict a lumbar spine injury, which appears traumatic in origin;
(e) although the insurer has produced Dr McIntosh’s biomechanical report, which concludes the accident could not have created sufficient forces to injure
Ms Mangogna, even if it is accepted as probative it still has to be weighed against the rest of the evidence;(f) Ms Mangogna’s statutory declaration dated 31 May 2021 states she began to feel pain immediately, but delayed her complaint because she hoped it would go away;
(g) Ms Mangogna told also Medical Assessor Gibson that she did not complain about the injury because she thought the pain would go away; however, over the next few weeks, the pain became progressively worse, and eventually, she noticed pins and needles in her left leg and foot;
(h) the physiotherapy records document treatment for low back pain from March 2021;
(i) there have been consistent complaints of low back pain between the accident date and thereafter. Although the claimant did not provide a history of the accident until April 2021 she was consistently seeking treatment;
(j) teacher’s aide work leads to more complaints, but there is no history of an injury at work;
(k) Dr Singh and her GP supports the nexus;
(l) although most lumbar injuries from physical trauma correlate with severe localised pain, this does not apply to all such injuries;
(m) the delay in her presentation of her low back pain and what the contemporaneous post-accident clinical records show is non-typical to that of most people. However this is not true of all people, who have trauma-induced lumbar vertebral injuries;
(n) information about what happens to most people (epidemiological information) does not invalidate or trivialise person-specific, circumstance-specific medical features (clinical information). Clinically, it would be unreasonable to conflate epidemiological evidence with clinical evidence;
(o) Medical Assessor Gibson found the claimant’s presentation to be straightforward with no suggestion of embellishment or exaggeration;
(p) there is evidence of a deterioration in how the symptoms manifest during the claimant’s participation in work and seeking treatment;
(q) the Panel must consider Ms Mangogna’s mental state as impacting on her reliability and why she did not report her injury immediately, and
(r) surgery may not have been necessary, but that is not relevant to causation.
There is a consensus of medical opinion that Ms Mangogna already had a mental condition at the date of the accident, being a social anxiety disorder, which makes her avoid situations where she is exposed or may have to assert herself.
The Cherished Minds report lists behaviour that Ms Mangogna’s parents reported about their then 15 year old daughter. For example, they told the reporter that she was:
· indecisive;
· has trouble breathing;
· feels restless;
· feels sick to her stomach;
· worrying about doing something stupid or embarrassing;
· worrying about people laughing at her;
· feels anxious about being separated from her parents;
· anxious to be obedient to her parents, and
· worrying about what other people think of her.
The claimant’s self-reporting in that report supports her parents’ opinion.
From references in the various reports it appears that her mother accompanies her to all medical appointments, and it is recorded that the mother will intervene and talk for her daughter.
This behaviour is referred to in the parental assessment aspects of the report at page 15:
“Families, peers, and teachers may also accommodate the youth’s anxiety. Accommodation (e.g., providing reassurance, participating in avoidant behaviors (sic), doing tasks for the youth that he/she is capable of doing, or tolerating delays) is done to decrease the youth’s distress which helps in the short term, but unintentionally reinforces avoidance and maintains anxiety in the long run.”
The situation where a witness’s mental state impacts adversely on how evidence is given is not novel in dispute resolution. An applicable case is Stevens v DP World Melbourne Ltd [2022] VSCA 285.
Stevens says where there is a medical condition which impacts on how a claimant gives evidence, a tribunal of fact does not merely reject that evidence because of what is said to be his or her unreliability: a tribunal must consider what the balance of the evidence discloses, even if the witness’s evidence cannot be accepted on its own.[13]
[13] Stevens [44].
It is reasonable that the insurer questions whether Ms Mangogna’s evidence about the injury is reliable, given it is unusual to delay reporting what has turned out to be a serious injury.
Although Ms Mangogna’s behaviour is maladaptive and–to an integrated and healthy person–apparently unreasonable and inexplicable, it is reasonable to allow that her mental disorder could affect the way in how Ms Mangogna might report her condition or interact with treating health practitioners.
From reading the notes about Ms Mangogna’s mental disorder the Panel accepts that it may have caused anxiety about being laughed at or judged, which was psychologically painful enough for her to decide to avoid making a complaint until she could no longer bear her physical pain.
On balance, the evidence from her treating doctors, the consistency of the claimant’s assertion as to why she did not report the nexus with the accident sooner, the impact of the social anxiety disorder on her ability to speak up when distressed and the lack of injuries before or since the accident supports a nexus with the accident and Ms Mangogna’s lumbar spine injury.
Panel decision
The Review Panel’s conclusions on the parties’ issues
Considering the preponderance of evidence in the light of Briggs the Panel is satisfied that the current threshold injury finding should be affirmed.
Presence of radiculopathy
In this case the presence of radiculopathy, and whether the injury described is not a threshold injury is not disputed.
Causation
The accident would have made a material contribution to causing the diagnosed injuries for the reasons set out above.
CONCLUSION
Ms Mangogna has established the accident caused her to suffer a non-threshold injury. The Review Panel affirms Medical Assessor Woo’s certificate dated 22 October 2022.
All the injuries below referred to the Panel for assessment have been assessed and determined as caused by the motor accident:
· disc protrusion at the L4/5 and L5/S1 levels with left lateral recess stenosis and compression of the left S1 and S2 nerve roots with verifiable radiculopathy.
Member O’Riain, Medical Assessor Gibson and Medical Assessor Berry have viewed this certificate and confirmed they are in agreement.
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