Gravestock v Victorian WorkCover Authority - [2022] VSC 356

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01555

AMANDA GRAVESTOCK	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY & ORS (according to the attached schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2022
DATE OF JUDGMENT:	23 June 2022
CASE MAY BE CITED AS:	Gravestock v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 356

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Medical panel found no work-related compensable injury – Injury in the extended sense – Whether medical panel failed first to consider whether plaintiff had suffered injury in employment – Whether medical panel erred by only considering whether the plaintiff’s employment significantly contributed to her current condition – Legal unreasonableness – Adequacy of reasons – Application dismissed – Workplace Injury Rehabilitation and Compensation Act 2014 – Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Spencer	Arnold, Thomas & Becker
For the First Defendant	Mr R Kumar	Thomson Geer
For the Second to Sixth Defendants	No appearance	DLA Piper

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. Ground 5 - Did the Panel fail to consider whether Ms Gravestock had suffered injury arising out of or in the course of her employment prior to, and which had led to, the development of fibromyalgia?................................................................................................................................ 3

B.1The form of the questions..................................................................................................... 4
B.2The Panel’s reasons and their context................................................................................ 5
B.3Did the Panel err in the way alleged?................................................................................. 9
B.4The significance of the prior accepted claim................................................................... 11

C. Ground 6 – Was the Panel’s decision legally unreasonable?............................................ 12

D. Ground 4 – Were the Panel’s reasons adequate?................................................................. 13

E. Disposition................................................................................................................................... 13

HIS HONOUR:

A. Introduction

Ms Gravestock, the plaintiff, who now works as a quality manager for a company that sells and services valves to gas and oil companies, was employed by Boral Roofing Pty Ltd between 2004 and 2013. In her employment with Boral Roofing Pty Ltd she was required, among other things, to sit at a computer and to complete data entry. She contends that she was provided with an unergonomic workstation between sometime in 2010 and at least April 2011. She contends that over that time she developed pain first in her right shoulder and neck region, and that that pain later spread throughout her body. In 2012 she was diagnosed with ‘fibromyalgia’.[1] She says that she continues to have widespread pains throughout her body.
[1]It is apparent that in Ms Gravestock’s case all doctors considered that this condition was, at least in part, organic in origin.

Ms Gravestock commenced a proceeding in the County Court of Victoria against the Victorian WorkCover Authority in which she seeks leave to commence proceedings against Boral Roofing Pty Ltd for damages for pain and suffering only.[2] The County Court referred certain medical questions to a medical panel constituted under the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Panel’).[3] The Panel, which comprised two psychiatrists, a rehabilitation physician,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 356
Decision Date: 23 June 2022

CaseChat Overview and Summary

In Gravestock v Victorian WorkCover Authority, the plaintiff sought judicial review of a decision by a medical panel convened under the Workplace Injury Rehabilitation and Compensation Act 2014, which determined that she did not have a work-related compensable injury. The plaintiff argued that the panel had failed to properly consider whether she had suffered an injury in the employment before considering the extent to which her employment contributed to her current condition. The case was heard in the Supreme Court of Victoria.

The central legal issue was whether the medical panel erred in its process and thus acted unreasonably by not first determining if the plaintiff had suffered an injury in the employment. The plaintiff argued that the panel should have followed a specific sequence of inquiries as outlined in the Accident Compensation Act 1985. The court had to determine if this failure rendered the panel’s decision legally unreasonable and whether the reasons provided were adequate.

The Court found that the medical panel did not fail to consider whether the plaintiff had suffered an injury in the employment. Instead, the panel's approach was to first assess the contribution of the employment to the plaintiff’s current condition. The Court held that this was not an error of law and did not make the decision legally unreasonable. The reasons provided by the panel were deemed sufficient to support their conclusion. Consequently, the application for judicial review was dismissed.

No further orders were made.

Orders