Braddy v TAC [2025] VCC 1273

1. The defendant relies on the opinions of its medico-legal specialists (neurosurgeon Dr Armin Drnda and orthopaedic surgeon Mr Gary Speck) to the effect that in the transport accident the plaintiff suffered muscular ligamentous strain which should have resolved within 6 to 12 weeks,[2] and that the persisting symptoms have no organic basis and are better diagnosed as a psychiatric condition (whether a somatic symptom disorder or chronic pain disorder). Even if the plaintiff's persistent symptoms in the lumbar spine are found to have an organic basis, the defendant says that the consequences of any aggravation of pre-existing and symptomatic lumbar spondylosis do not meet the narrative test for serious injury.

1. At the hearing, with the assistance of a Thai interpreter, the plaintiff gave evidence and was cross-examined briefly. No other witnesses were called. The parties tendered court books and made oral submissions. I have considered all of the evidence and the submissions of counsel.

1. The plaintiff swore two affidavits in support of her application.[3] Their contents may be summarised as follows.
2. The plaintiff is 51 years old and was born in Thailand. She did not complete primary school and has limited English. She came to Australia in 1993 and worked in various factory jobs. She is a single mother who lives with her 16-year-old son, her daughter-in-law and 22-month-old granddaughter.[4]
3. She suffered injuries to the right shoulder and neck at work in December 2010, and 18 June 2012. These injuries caused her to stop work in October 2013. In an affidavit filed in support of her serious injury application in relation to the neck and shoulder injuries,[5] the plaintiff deposed that as a result of her neck injury she was able to do some cooking and cleaning but not the heavier housework. She could only drive short distances. She avoided carrying heavy items. Her neck pain disturbed her ability to fall asleep and to stay asleep. She was no longer able to play tennis, swim or ride a bike as she had done before suffering the injuries at work.[6]
4. In her first affidavit in support of the current application, the plaintiff stated that she had some back pain in 2010 and early 2011 which resolved.[7] She had further low back pain and right sciatica in mid-2016. She saw a rheumatologist, Dr Cecil Hor, on 2 November 2016 for this issue.[8]
5. Dr Hor wrote to Dr Christine Wong on 2 November 2016 that, among other things, the plaintiff complained of:[9]

...low back pain associated with right sided sciatica radiating down to her right foot. Pain is worse with bending and prolonged walking. No cauda equina symptoms. She has some early morning back stiffness which lasts for 15 minutes.

1. A CT scan on 5 November 2016 was reported with the following conclusions:[10]

Mild lumbar spondylosis. There is a diffuse disc bulge at L4/5 level. There is moderate to severe narrowing of bilateral neural foramina. Impingement of the exiting L4 nerve root is not excluded.

At L5/S1 level, there is a posterocentral disc protrusion causing mild narrowing of spinal canal. The right traversing S1 nerve root shows minor posterior displacement and may be impinged. Please correlate clinically with examination findings.

1. Dr Hor wrote to Dr Wong on 16 November 2016 noting the CT scan results and the plaintiff's report, on review, that she "still gets neuropathic pain in her right leg but this is not troubling her too much at the moment".[11]
2. In her first affidavit, the plaintiff stated that prior to the transport accident, her back pain and right leg pain were improving, and that these symptoms worsened after the transport accident.[12]
3. The plaintiff attended a general practitioner, Dr Nawinda Utthanaphol, on 4 February 2017,[13] in relation to the transport accident, complaining of pain in the neck, upper and lower back and shoulders. The clinical notes include that "she said she has existing left shoulder pain, neck and LBP"[14] for which she was taking medication. The doctor noted, among other things:[15]

1. The doctor noted that the plaintiff was seeing a different general practitioner for her neck and shoulder problems.
2. The plaintiff saw Dr Hor again on 15 February 2017, less than a fortnight after the transport accident. Dr Hor wrote to the plaintiff's general practitioner:[16]

...Her back pain was getting better but unfortunately her car was rear ended 2 weeks ago and this exacerbated her back pain and right sided sciatica. It is slightly better this week......

1. The plaintiff also saw a physiotherapist, Meagan Morse on 3 April 2017 in relation to her right lower back pain and right sided sciatica.[17]
2. Dr Hor noted on 12 April 2017 that the plaintiff complained of ongoing back pain and right sided sciatica and was keen to have an epidural injection.[18] This injection was performed on 10 May 2017.
3. The plaintiff had a CT-guided right S1 nerve root injection on 13 February 2018.[19]
4. She had some referred pain into the left leg in April 2019 and had an MRI on 3 May 2019 which was reported with the following conclusion:[20]

Mild generalised disc bulge at L4/5 with small superimposed left foraminal disc protrusion. Moderate foraminal narrowing with mild flattening of exiting left L4 nerve root.

Moderate central posterior disc protrusion at L5-S1 with mild-moderate spinal canal narrowing. Mild flattening of the traversing right S1 nerve root.

1. The plaintiff saw a neurosurgeon, Mr Michael Wong, on 22 May 2019. Mr Wong recommended and sought approval from the TAC for an L4/5 and L5/S1 decompression and lumbar interbody fusion.[21]
2. A second MRI on 17 October 2019 was reported as showing no significant change from the previous MRI.[22]
3. A third MRI on 17 June 2020 was reported with the following conclusion:[23]

1. Right L5/S1 paracentral disc protrusion contacting both traversing S1 nerve roots (right more than left).

2. L4/5 disc bulge eccentric to the left results in mild central canal stenosis, moderate and mild right foraminal stenosis.

Should the patient's symptoms persist despite conservative measures, a CT guided right L5/S1 epidural corticosteroid injection may be of benefit.

1. The plaintiff first saw general practitioner, Dr Chris Clifopoulos, on 10 June 2020.[24] She saw a psychologist, Mr Thomas Clifopoulos, on 16 July 2020.[25]
2. The plaintiff saw a pain specialist, Dr Peter Keogh, on 25 June 2020. Dr Keogh sought approval for pulsed radiofrequency treatment of the L5 and S1 dorsal root ganglia.[26]
3. On 30 November 2020, the TAC refused to fund this procedure or the surgery recommended by Mr Wong.[27]
4. A CT scan of the lumbar spine on 22 September 2021 was reported with the following conclusion:[28]

1. Degenerative L4/5 and L5/S1 disc disease with mild acquired L4/5 central canal stenosis stable since November 2016.

2. Stable uncomplicated L5/S1 small postocentral disc protrusion.

1. The plaintiff had a further epidural injection on 5 November 2021.[29]
2. The plaintiff first consulted a specialist rehabilitation physician, Dr Damien Daniel, on 30 November 2022 and saw him on 18 occasions between then and 20 June 2024.[30] With approval from the TAC, Dr Daniel performed an L5/S1 epidural injection on 28 February 2024.[31]
3. MRI of the lumbar spine on 10 July 2024 was reported with the following conclusion:[32]

1. Mild compression of the traversing L5 nerve root in the L4/5 subarticular recess....While there is contact of the exiting bilateral L4 nerve roots, there is no features of compression.

2. Contact of the traversing bilateral S1 nerve roots I the L5/S1 subarticular recess.....The disc extrusion...in combination with facet joint arthropathy results in mild bilateral foraminal stenosis with contact of the exiting L5 nerve roots without features of compression.

3. Multilevel facet joint arthropathy, most severe at L4/5.

4. L5/S1 dessication, loss of intervertebral disc height associated with reactive opposing endplate changes.

1. The plaintiff's evidence concerning the pain and suffering sequelae of her back injury was to the following effect.
2. In her first affidavit,[33] the plaintiff stated that since the transport accident, her low back pain is her worst pain. It extends into the buttocks and down both legs, with sensory disturbances. She is slower in carrying out household tasks since the transport accident because of her lower back pain and takes more breaks. Heavier tasks aggravate her neck, right shoulder and lower back pain. She experiences increased lower back pain when driving even short distances, and when bending and twisting, or sitting or standing for too long. Her lower back pain adds to her trouble sleeping. Prior to the transport accident, she was able to go on walks and do exercises at home, but since the transport accident her lower back pain and leg pain have made these activities more difficult and she now avoids long walks and many exercises.
3. As at 8 July 2024, she was taking medication for her neck, right shoulder and lower back pain as well as anxiety and depression. The medication included Pregabalin; Mirtazapine; Norgesic; Clonac; and Duloxetine. She was seeing a physiotherapist and psychologist and undertaking pain management treatment.
4. In her second affidavit, sworn 24 June 2025, she stated that the pain management program she was attending on referral from Dr Daniel, ended in September 2024.[34] She was hoping to obtain a healthcare plan for further physiotherapy and psychological treatment.
5. She went to Thailand for three weeks in January to visit her sick mother, but found that in spite of taking extra pain medication the plan trip aggravated her low back and referred leg pain. She stated that her low back pain prior to the transport accident was "mild and manageable, and nowhere near as persistent and constant as it has been, and continues to be, since the transport accident".[35]
6. At the hearing, the plaintiff said that she takes 300 mg of Lyrica, twice per day; and two to three Norgesic tablets per day; two Clonac tablets per day; and, at night: one tablet each of Mirtazapine and Duloxetine.

1. The plaintiff tendered various letters from Dr Christine Wong, physician, between 5 July 2018 and 24 June 2020.
2. On 5 July 2018, Dr Wong wrote to the TAC noting, among other things, that the plaintiff continued to have "low back muscle pain".[36]
3. On 19 February 2019, Dr Wong wrote to the TAC noting, among other things, that the plaintiff "has had chronic pain related to a TAC car accident".[37]
4. On 23 April 2019, Dr Wong wrote to TAC recommending an MRI for the plaintiff in the light of "her recent left leg pain, which has been radiating from her low back for the last two weeks". The letter noted that the plaintiff had "previously had low back pain since her car accident" and had "previously described intermittent right leg pain" which was "now on the left side".[38]
5. On 7 May 2019, Dr Wong referred the plaintiff to neurosurgeon, Dr Michael Wong, noting that at the time of the car accident:[39]

... [the plaintiff] got low back pain when her car was rear-ended and this pain was associated with right-sided sciatica. She received physiotherapy and hydrotherapy, and has improved.

However, more recently, her pain has become much worse and has become persistent with symptoms of numbness and pins and needles.

1. On 22 May 2019, Dr Michael Wong wrote to the plaintiff's general practitioner noting that the plaintiff had a two-year history of low back pain since the transport accident. He noted that the low back pain "has since deteriorated...with intermittent radiation to her left foot.... associated with intermittent parasthesia and numbness....as well as minor right leg symptoms".[40] She was taking Endep and Lyrica for her pain. After reviewing the MRI performed on 3 May 2019, Dr Wong considered that "the only definitive surgical option would be an L4/5, L5/S1 decompression and lumbar interbody fusion".
2. On 4 November 2019, Dr Wong wrote to the plaintiff's doctor noting her complaint of ongoing "low back pain and bilateral leg pain, worse on the left side". He noted that the MRI of October 2019 demonstrated, "again...L4/5, L5/S1 disc degeneration with mild central canal stenosis at the L5/S1 level and compression of bilateral S1 nerve roots".[41] He arranged for an L5/S1 epidural injection to improve her symptoms.
3. In letters to Dr Tagerd on 21 and 28 April 2020,[42] Dr Wong noted that on review the plaintiff's "her low back pain and leg pain have been stable"[43] and that the plaintiff was doing regular physiotherapy, hydrotherapy and walking.
4. Dr Peter Keogh, pain specialist, wrote to the plaintiff's treating practitioner, Dr Chris Clifopoulos, on 25 June 2020 that he received a history from the plaintiff of immediate pain in the lower back,[44] but also in both legs, particularly on the right, at the time of the transport accident. She complained that the pain was "constant with exacerbations". He noted the MRI findings and recommended PRF (pulsed radiofrequency) treatments for her leg pain but indicated that these would not assist with her back pain.[45] By letter dated 30 June 2020, Dr Keogh sought approval from the TAC for these treatments.[46] In a further letter to Dr Clifopoulos on 12 August 2020, Dr Keogh noted that the TAC was considering the request, and that the plaintiff "maintains that she only suffered with shoulder pain predominantly and some leg pain and never any back or leg pain"[47] prior to the transport accident.
5. Dr Chris Clifopoulos provided three reports to the plaintiff's solicitors concerning his treatment of the plaintiff from June 2020.[48] In his reports, he opined that as a result of the transport accident she suffered:[49]

.... aggravated degeneration and an L5/S1 disc injury....This is causing ongoing spinal pain and sciatica with difficulty with movement and enjoyment of her activities of daily living. She has secondary neuropathic pain with symptoms of anxiety, depression, and poor sleep....

1. In his final report, dated 30 June 2025, Dr Clifopoulos noted that the plaintiff's back pain has persisted and her primary psychological symptoms, taken together, "have resulted in moderately severe impairment of activities of daily living...and vocational capacity".[50] He noted that her pain symptoms had persisted in spite of treatment including physiotherapy, psychological support and medication. He considered that her prognosis remains guarded and that any further improvement would depend on "ongoing multidisciplinary management". [51]
2. Dr Damien Daniel reported to the plaintiff's solicitors on 21 June 2024 that:[52]

...The reason for her presentation at each medical consultation has remained unchanged. She has presented with ongoing low back pain and radicular pain and pins and needles down both her legs, variably in L4, L5, and S1 nerve root distributions, with the symptoms worse in the right leg than the left. She has also recently presented with increasing emotion distress and dysphoric mood. Treatment has been continued with physiotherapy and self-guided home-exercise program, psychological counselling and management of medications. She also underwent a CT-guided L5/S1 epidural steroid injection performed 28/02/24.

1. Dr Daniel diagnosed the plaintiff with "chronic primary musculoskeletal pain (lumbar and limb) of moderate-marked severity", and opined that "[t]he source of the pain is most likely discogenic at L4/5 and L5/S1 with associated nerve root irritation as described in an MRI report of her lumbosacral spine below (reported on 3/5/2019)".[53] Dr Daniel opined that the plaintiff's low back condition is consistent with the circumstances of the transport accident on 3 February 2017.[54]
2. Dr Daniel prescribed medication for the plaintiff's back injury as follows: Lyrica 150mg three times a day; Norgesic (35mg/450mg) 1-2 tablets three times a day as needed; Discofenac 50mg three times a day as needed; Circadin 2mg at night; Mirtazapine 45mg at night; and Duloxetine 30mg at night.[55]

1. Mr Stephen Doig, orthopaedic surgeon, reported to the plaintiff's solicitors on 5 May 2025 that prior to the transport accident, the plaintiff was suffering from lumbar spondylosis.[56] He based this opinion on the CT scan of 5 November 2016 and the ongoing physiotherapy notes indicating that she was having treatment for her low back prior to the transport accident.
2. On examination, he found her neurology "completely stable and essentially normal".[57]
3. Mr Doig opined that as a result of the transport accident the plaintiff suffered "a significant aggravation to her low back"[58] by way of "exacerbation of previously significantly symptomatic lumbar spondylosis".[59] His reasoning was that Dr Hor noted that the right leg pain was not troubling the plaintiff much immediately prior to the transport accident, and that was why no MRI scan was performed at that time. He considered that the problem with her back "has been significantly aggravated by the motor vehicle accident".[60]
4. He noted the permanent sequelae of the aggravation as including: being much slower with cleaning activities around the house; lesser ability to drive; interference with sleep; restricted range of movement in the back and difficulty with prolonged sitting, walking, standing or driving; and restrictions in lifting, pushing, pulling, twisting and bending.[61]
5. The defendant relied principally on the medico-legal reports of Mr Gary Speck[62] and Dr Armin Drnda.[63]
6. Dr Drnda reported on 22 June 2022 receiving a history from the plaintiff that her symptoms of low back pain developed "a few weeks after the accident_..."_.[64] She complained of constant low back pain at a level of 10 out of 10, with 80% of the problem being low back pain and 20% was leg pain, which spread down the backs of her legs, with sensory disturbance in both legs, and some numbness in the toes. On examination, he noted some fear avoidance and illness behaviour, with tenderness on the lower back, hips and legs. There was no muscle wasting.
7. He reviewed the MRI's of November 2016 and May 2019 and opined that the findings on the scans were very similar, with no changes in later radiological examinations in 2020 and 2021. He opined:[65]

Ms Braddy possibly suffered aggravation of pre-existing lumbar disc protrusions in the form of musculoligamentous strain. The CT scan in 2016 revealed very chronic disc protrusions, and, therefore, it has to be pre-existing to her alleged transport accident. However, the symptoms of low back pain developed a few weeks after the accident and, contrary to the natural history, continued to worsen, which in the circumstances is a sign of a non-organic condition. In my opinion, Ms Braddy does not have any ongoing organic condition related to the transport accident. The leg pain is neither neuropathic nor radiculopathy pain. The diagnosis is chronic pain syndrome.

1. He considered that any the aggravation suffered was temporary.[66]
2. Given the diagnosis of chronic pain syndrome, Dr Drnda considered that it was not appropriate for the plaintiff to undergo either proposed surgical decompression and fusion at L5/4 and L5/S1 or pulse radiofrequency treatment.[67]
3. Dr Drnda concluded:[68]

In my opinion, possible physical injury in the transport accident to the lower back has been resolved. It has been replaced by chronic pain syndrome on the background of her previous painful conditions and psychosocial issues.

1. Mr Speck opined on 22 July 2025[69] that the plaintiff suffered a "soft tissue sprain to the low back"[70] in the transport accident. However, Mr Speck expected this "to resolve within 6 to 12 weeks".[71] He considered that "persistence of symptoms are consistent with a somatic symptom disorder and her presentations suggests other mental health issues". [72]

1. The report of Dr Chris Grant dated 23 October 2017 recorded the following history from the plaintiff as follows:[73]

She said the motor vehicle accident this year caused new pain in the lumbar spine to the right of the midline and that injections to the lower lumbar spine were of no help. She said that are sometimes pain spreading into the lateral part of the thighs and calves, more so the right than the left...

...Based on review of the referral documents, the worker's account of her symptoms and her presentation during interview, I believe she has a mild adjustment disorder with anxious and depressed mood, as a secondary or consequential effect of chronic pain arising from a right shoulder injury in 2010 and exacerbated by a motor vehicle accident in February 2017 which has cause her to develop new pain in the low back. I believe that her pain has a significant psychosocial component......

1. Dr Gregor Schutz reported on 27 July 2024[75] that the plaintiff had a longstanding adjustment disorder with depressed mood which originally developed after the neck and shoulder injury at work but which, on her account, had improved prior to the transport accident. He opined that "there has been a significant exacerbation of her adjustment disorder subsequent to the accident. This is attributed to her experience of lower back pain and associated limitations".[76]
2. The worsened symptoms of the adjustment disorder included: low mood, loss of interest and loss of enjoyment; irritability, lowered appetite, lowered energy, anxious avoidance, negative ruminations, suicidal ideation, and poor concentration. However, Dr Schutz acknowledged that the loss of her son has been an additional significant contributor. Dr Schutz concluded that 8% of the plaintiff's psychiatric whole person impairment of 20% was secondary to her physical injuries.[77]

1. There were no serious challenges by the defendant to the plaintiff's credit or reliability concerning the pain and suffering consequences of the accident. I found the plaintiff to be a straightforward witness. I accept her evidence as to the pain and suffering consequences of the exacerbation of the pre-existing and symptomatic lumbar spine symptoms suffered in the transport accident. These include: constant lower back pain which is now her worst pain;[78] increased restriction and pain in undertaking household chores;[79] increased lower back pain driving short distances; [80] increased back pain bending and twisting; [81] increased back pain sitting or standing too long;[82] waking more often at night because of lower back pain; [83] needing to avoid long walks and many exercises because of lower back pain; [84] needing to take significant daily medication and have ongoing treatment; [85] and the lack of improvement despite significant and ongoing treatment including injections and a pain management program.[86]
2. Her evidence in this regard is consistent with what she told treating doctors and specialists as well as medico-legal examiners.
3. I accept that the sequelae of her prior, unrelated, workplace neck and shoulder injury included an incapacity for work, persistent pain requiring daily medication, interference with sleep, loss of the ability to undertake heavy housework or to engage in recreational pursuits such as playing tennis, swimming and bike riding.
4. I also accept that the radiology before and after the transport accident shows little change in the pathology of the lumbar spine. Further, I accept the findings of Mr Doig and Dr Drnda that the plaintiff's neurological examination was normal. However, normal neurological examination is not necessarily inconsistent with the finding made by Dr Daniel of discogenic pain at L4/5 and L5/S1 with associated nerve root irritation.
5. In any event, the plaintiff has stated that 80% of the problem with the lumbar spine is her back pain, which appears to have been accepted by all surgical experts as being organically based and causally related, by way of aggravation, to the transport accident. Mr Speck and Dr Drnda found that this aggravation was temporary. Dr Drnda's reasoning in this regard was premised on his belief that there was a gap of some weeks between the transport accident and the first complaints of back pain; as well as on the non-organic signs found on neurological examination. However, as noted in paragraph 12 above, the plaintiff reported her transport accident related back pain to a general practitioner on 4 February 2017.
6. In particular, in the face of the uncontradicted evidence of the plaintiff concerning the constancy, severity and persistence of her back pain, as well as the opinions of her treating doctors, I reject the conclusions of Mr Speck and Dr Drnda that the soft tissue injury suffered to the lumbar spine in the transport accident has resolved.
7. On the totality of the evidence before me, I consider that as a result of the transport accident the plaintiff suffered an exacerbation of her pre-existing and symptomatic spinal spondylosis such that her back pain became constant, intrusive, with some referred pain of an organic nature, and required treatment with daily analgesia. Against a background of physical limitations pre-dating the transport accident, and referable to neck and shoulder pain caused by an earlier workplace injury, after the transport accident, the persistent back pain had the sequelae referred to above at paragraphs 29 to 34. In addition, in response to the persisting lower back pain, and limitations, she suffered a significant exacerbation of her pre-existing adjustment disorder.

1. In all the circumstances, I consider that the pain and suffering consequences of the permanent impairment of the lumbar spine are more than significant or marked, and are at least very considerable when compared with other cases in the range of permanent impairments.
2. Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the injuries suffered in the transport accident on 3 February 2017.
3. Costs reserved.

[1] At the commencement of the hearing, Ms Braddy abandoned her claim under sub-paragraph (c) of the definition of serious injury.

[2] See report of Mr Gary Speck at Defendant Court Book ("DCB") 46.

[3] These were dated 8 July 2024 and 24 June 2025 respectively.

[4] Her older son, the father of her granddaughter, died in June 2022.

[5] See the affidavit sworn on 28 September 2015 at Plaintiff Court Book ("PCB") 24.

[6] Ibid 27. She received a common law settlement for these injuries in November 2016.