Gravestock v Victorian WorkCover Authority
[2022] VSC 356
•23 June 2022
| 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, an orthopaedic surgeon and a rheumatologist, answered the questions in a manner that, certainly at first blush, indicates that it formed the view that Ms Gravestock had not suffered from any work-related compensable injury. The first three questions, and the answers given, were as follows:
[2]The proceeding is brought pursuant to s 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
[3]Pt 12 div 3.
Question 1 What is the medical condition of the Plaintiff’s:
(a) cervical spine;
(b) right shoulder/arm;
(c) left shoulder/arm;
(d) right leg;
(e) left leg; or
(f) mind?Answer: (a) cervical spine: The Panel is of the opinion that, in the Plaintiff’s cervical spine, the Plaintiff is suffering from diffuse widespread chronic pain which has developed on the background of fibromyalgia, with no examination findings suggestive of current fibromyalgia.
[(b)–(e)were answered in the same terms as (a) but by reference to the respective body part]
(f)mind: The Panel is of the opinion that the Plaintiff has no diagnosable medical condition of the mind.
Question 2Was the Plaintiff’s employment with the Defendant from 2004 to 2011 a significant contributing factor to any:
(a)recurrence:
(b)aggravation;
(c)acceleration;
(d) exacerbation; or
(e)deterioration
of any and if so what medical condition of the Plaintiff’s:
(a) cervical spine;
(b) right shoulder/arm;
(c) left shoulder/arm;
(d) right leg;
(e) left leg
as identified by the Medical Panel?
Answer: The Panel is of the opinion that the Plaintiff’s employment with the Defendant from 2004 to 2011 was not a significant contributing factor to any recurrence, aggravation, acceleration or deterioration of any medical condition of the Plaintiff’s cervical spine, right and left shoulders/arms, or right or left legs.
Question 3If “yes” to any part of question 2 hereof, does any medical condition of the Plaintiff’s:
(a) cervical spine;
(b) right shoulder/arm;
(c) left shoulder/arm;
(d) right leg;(e)left leg
assessed by the Medical Panel continue to result from or be materially contributed to by injury identified in answer to Question 2?
Answer: Not applicable.
Ms Gravestock has applied for orders quashing the answers given by the Panel. The Victorian WorkCover Authority, the first defendant, resisted the application. The individual members of the Panel, the second to sixth defendants, did not participate in the hearing and wrote to the Court indicating they all adopted the position set out in R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & others.[4]
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?
[4](1980) 144 CLR 13, 35 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).
Ms Gravestock’s second ground of appeal[5] was in the following terms:
The Medical Panel failed to ask itself the right question and/or to determine a fundamental issue, namely whether and what injury within the definition of injury in subparagraph (c) of s 3 of the [Workplace Injury Rehabilitation and Compensation Act 2013] had been sustained by the plaintiff (which was a different inquiry to whether her employment was a significant contributing factor to any such injury), and in so doing to have regard to the fact that the plaintiff had an accepted injury in respect of which medical and like expenses continued to be paid.[6]
[5]By an amendment to her origination motion, Ms Gravestock added three grounds numbered 4 to 6. This ground was ground number 5. In oral argument, it was confirmed that the previous grounds, numbered 1 to 3, were not pursued.
[6]The ground of appeal probably should have referred to the Accident Compensation Act 1985 (Vic) not the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), but that was of no consequence.
Ms Gravestock’s argument, as it was refined in oral submissions, was that the Panel was required to, but did not, start by considering whether there had been an injury that arose out of or in the course of employment, and only then asking whether employment significantly contributed to that injury and if so whether her present condition was a result of that injury. Rather, Ms Gravestock submitted, the Panel erred by limiting its inquiry to whether her current condition was significantly contributed to by her employment. Her counsel summarised her argument as follows:
The issue is they first have to turn themselves to the question of injury in employment. That's the starting point. They've got to say was or wasn't there an injury in employment, then they can start looking at the test of compensability, but the difficulty here … is they effectively skipped that step. They look at it backwards, they start from her current medical conditions and try to draw a line backwards to her employment rather than starting with the identification of the injury, and then the test of compensability of the injury.
B.1 The form of the questions
As Ms Gravestock pointed out, the concept of an ‘injury’ under the Accident Compensation Act 1985[7] includes ‘any physical or mental injury’,[8] together with a ‘disease contracted … in the course of … employment’,[9] and together with a ‘recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’.[10] This last category of injury may be referred to as an injury ‘in the extended sense’,[11] and is the form of injury referred to in the ground of appeal as an injury in paragraph (c) of the definition. For any injury to be compensable it must arise out of or in the course of employment.[12] But, for diseases and for injuries in the extended sense, there is an additional requirement that the employment be ‘a significant contributing factor’ to that injury.[13]
[7]The Accident Compensation Act 1985 (Vic) continues to govern Ms Gravestock's entitlements, notwithstanding that the procedural aspects associated with any claim are governed by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). See the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 5(1), 6.
[8]Accident Compensation Act 1985 (Vic) s 5(1) (definition of ‘injury’) prior to 1 July 2014; Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 3 (definition of ‘injury’). Section 625 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) as at 1 July 2014 substituted a new s 5 in the Accident Compensation Act 1985 (Vic) that had the effect of removing the definition of ‘injury’ from that Act but also provided that the words and expressions in that Act had the same meaning as in the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
[9]Ibid (definition of ‘injury’ para (b)).
[10]Ibid (definition of ‘injury’ para (c)).
[11]See, eg, Darling Island Stevedoring and Lighterage Co Ltd (1967) 117 CLR 19, 34 (Owen J).
[12]Accident Compensation Act 1985 (Vic) s 82(1).
[13]Ibid s 82(2C). For an analysis of the preceding legislation see Hegedis v Carlton & United Breweries (2000) 4 VR 296 (Ashley J), whose reasons were approved on appeal: Carlton and United Breweries v Hegedis [2002] VSCA 61.
Ms Gravestock relied on the fact that the Panel had answered a question directed only at whether or not employment was a ‘significant contributing factor’ as supporting her contention that the Panel had not first identified whether or not there was an injury arising out of or in the course of employment.
It is, perhaps, noteworthy that the questions asked of the Panel in this case seem to have assumed that if there were any relevant injury it was an injury in the nature of a disease or an injury in the extended sense. That is because the only questions dealing with causation asked whether employment was a significant contributing factor, and that causal connection is only relevant to a disease or to an injury in the extended sense. I make this as an observation rather than a criticism: first, there is no form of question in the definition of ‘medical question’ that in terms asks whether a worker has suffered injury arising out of or in the course of employment;[14] and second, it may well have been a considered approach in light of the fact that Ms Gravestock did not complain of any particular incident of injury nor any particular episode of trauma. Further, no sudden physiological change (which is an orthodox indication of an injury in the primary sense[15]) had been identified by her doctors, and, in those circumstances the development of symptoms gradually over time in the course of work duties would ordinarily suggest that any associated injury would be in the nature of a disease or some aggravation of a prior condition.[16]
[14]Workplace Injury Rehabilitation and Compensation Act 2013 s 3 (definition of ‘medical question’). Possibly, such a question could be asked because para (o) of the definition is ‘a question determined to be a medical question by a court hearing an application for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985’(emphasis omitted). It is not necessary to decide in this case whether such a question could be asked.
[15]See, eg, Zickar v MGH Plastic Industries Pty Ltd (1986) 187 CLR 310; Accident Compensation Commission v McIntosh [1991] 2 VR 253; Military Rehabilitation an Compensation Commission v May (2016) 257 CLR 468. See also the discussion of ‘injury’ in Wuth v Comcare [2022] FCA 42 (Griffiths, Wheelahan and Snaden JJ).
[16]Cf Kamener v Griffin (No 2) (2005) 12 VR 192, 205 [64] (Ashley J).
Be that as it may, the Panel was obliged to answer the questions that were put to it. In those circumstances, the fact that it did so, and did so in terms that included the ‘significant contributing factor‘ causal nexus, does not justify a conclusion that it must have erred by failing first to consider whether or not there was some prior disease or condition that was aggravated, accelerated, exacerbated, or was subject to some deterioration, that arose out of or in the course of employment. Rather, the question about whether it erred by failing first to ask itself that question is to be ascertained from reading its reasons as a whole and in the context of the questions and the material before it.
B.2 The Panel’s reasons and their context
The context in which the Panel gave its reasons included the following:
(a) In September 2012, Associate Professor Littlejohn, a rheumatologist, provided a medico-legal report in which he said that Ms Gravestock had developed ‘right shoulder girdle pain’ in about early 2010 that was affected by her work duties, and that by November-December 2011 she had developed ‘more widespread aching involving arms and legs’ that resulted in a diagnosis of fibromyalgia in February 2012. He opined that Ms Gravestock had first developed a ‘myofascial pain syndrome affecting the trapezius muscles’, and that the fibromyalgia was a consequence of that condition.
(b) In September 2016, Associate Professor Littlejohn provided a second report in which he confirmed his view that Ms Gravestock’s then current condition was fibromyalgia and that it had been ‘triggered’ by the ‘workplace muscle pain problem’.
(c) In May 2020, Dr Tony Kostos, another rheumatologist, provided a medico-legal report in which he agreed that Ms Gravestock suffered from fibromyalgia. Dr Kostos referred to Associate Professor Littlejohn’s opinion that Ms Gravestock’s ‘original problem was that of a myofascial pain syndrome’ and that this had ‘led to the development of fibromyalgia’. He said he had ‘undertaken a literature search’ and referred to some studies including one performed by Associate Professor Littlejohn. As I read Dr Kostos’s report, it is apparent that he disagreed with Associate Professor Littlejohn’s opinion that Ms Gravestock first developed a myofascial pain syndrome and that her fibromyalgia developed from that prior condition. Dr Kostos said:
Whilst there is no doubt about her current diagnosis I note that in a report from Prof G Littlejohn … he indicated that her original problem was that of a myofascial pain syndrome, characterized by tight muscles in the trapezius area and palpable muscle bands indicative of trigger points.
The dilemma here is that fibromyalgia is associated with tender points and the entire distinction between tender and trigger point is muddled in the literature and is a point of contention amongst clinicians who are proponents of the fibromyalgia syndromes. Suffice to say that whenever the reliability of the assessment of trigger point has been put to the test the sign remains only accessible to the “finger of faith”…
…
The concept of “overuse” has largely been discredited and Prof. Littlejohn has already previously written that ergonomic factors do not play a role in the development of fibromyalgia.
Therefore on the basis of the medical evidence I conclude that the physical aspects of her employment did not play a role in the development of fibromyalgia syndrome.
(d) In the ‘joint statement’ provided to the Panel, the parties stated:
It is in dispute as to whether the Plaintiff suffered compensable injury in employment with the Defendant and, if she did, whether such injury continues to be compensable under the Accident Compensation Act 1985.
(e) In her written submissions prepared by her lawyers and provided to the Panel, Ms Gravestock said she relied on Associate Professor Littlejohn’s view that she had ‘two identifiable conditions’ and that her fibromyalgia was a consequence of the ergonomic aspects of her work. In its written submissions provided to the Panel, the Victorian WorkCover Authority submitted that Ms Gravestock’s employment was ‘not a significant contributing factor to any injury’ or, alternatively, that ‘any injury as may have been sustained has long since resolved.’ It specifically contended that if the Panel concluded that Ms Gravestock suffered from fibromyalgia, then it relied on the ‘detailed analysis of the issue of causation set out in the report of’ Dr Kostos, and that Ms Gravestock’s employment ‘was not a significant contributing factor to any such condition’.
The Panel’s reasons reveal that it took a history from Ms Gravestock that she ‘developed pain around the right shoulder’ in about early 2010 that, she said, was related to her posture at work and to her work activity. It took a history that there were some changes made to her workstation following a report obtained in April 2011, but that those changes did not help her symptoms, and that her current symptoms were of ‘constant pain over her entire body including upper and lower limbs’. The Panel’s reasons reveal that it undertook a physical examination that, speaking broadly, did not reveal any objective signs of injury, and that it examined radiological reports that revealed some pathology in Ms Gravestock’s right shoulder. The Panel’s diagnosis then included the following:
The Panel concluded that the Plaintiff is suffering from a diffuse widespread chronic pain which has developed on the background of fibromyalgia, with no examination findings suggestive of current fibromyalgia. The Panel noted the mild degenerative changes revealed in medical imaging, but considered that such mild changes are frequently asymptomatic and clinical examination of relevant joints by the Panel was normal.
The Panel’s reasons then included the following under the heading ‘Analysis and reasoning’ and then the subheading ‘Relationship between current medical condition and employment’:
1. As previously stated, the Panel concluded that the Plaintiff is suffering from diffuse widespread chronic pain which has developed in the background of fibromyalgia, with no examination findings suggestive of current fibromyalgia. In particular, the Panel noted the absence of tender or trigger points typical of fibromyalgia.
…
2. The Panel considered the nature of the Plaintiff’s current medical condition in conjunction with the Plaintiff’s employment from 2000 to 2011. The Panel noted the Plaintiff’s description of the onset of neck pain in 2010/2011 and the continuation of neck symptoms since that time, with spreading of pain to involve her whole body. The Panel concluded that the Plaintiff’s pain was initially suggestive of fibromyalgia and further noted that this diagnosis was made by various specialists over the ensuing years.
3. Based on the Panel’s clinical experience and expertise, together with its own assessment of the Plaintiff, the Panel concluded that the Plaintiff’s employment was not a significant contributing factor to the Plaintiff’s fibromyalgia and subsequent chronic pain.
4. In particular, the Panel noted the changes to the Plaintiff’s workstation had no impact on her pain, and that in fact of the Plaintiff reported that her pain spread to her whole body in November 2011, several months after her workstation assessment and modification. The Panel also noted that after being made redundant in 2013 she was able to commence full-time work elsewhere and manage work tasks successfully. The Panel further noted that the Plaintiff’s current pain increases as pain medication wears off but can increase both before and after the working day, indicating no causal relationship with work tasks.
5. The Panel also considered that the Plaintiff’s employment was not a significant contributing factor to recurrence, aggravation, acceleration, exacerbation or deterioration of medical conditions, for the same reasons given above.
6. In considering the relationship between the Plaintiff’s employment and her fibromyalgia and later chronic pain, the Panel noted and agreed with the comments of Dr Kostos in his report dated 14 May 2020 for reasons given above.
7. The Panel noted the comments of Professor G Littlejohn in his report dated 2016 in which he opined that “I acknowledge that fibromyalgia is a classic chronic pain syndrome that will [be] influenced by all aspects of the individual psychological and physical make-up and there are likely personal and emotional factors which feed into this problem” and “part of the triggering process for the fibromyalgia process [is][17] associated with painful work-associated myofascial pain syndrome.[”] The Panel disagreed with Professor Littlejohn for reasons given above, especially given that the Plaintiff’s pain became widespread and typical of fibromyalgia seven months after ergonomic improvements were made at her workstation, in order to eliminate any cause of postural or work-related pain.[18]
B.3 Did the Panel err in the way alleged?
[17]Insertion in the original.
[18]I have added the paragraph numbers for ease of reference and the emphasis in italics, and have corrected some minor typographical errors.
As Ms Gravestock pointed out, there were some aspects of the Panel’s reasons that suggest that it may have failed first to consider whether there had been an injury that arose out of or in the course of employment, and instead limited itself to considering any connection between Ms Gravestock’s current condition and her employment. I am prepared to assume that if it had done so, that would have been an error that would justify setting its decision aside.[19] The starkest indication is perhaps the wording of the subheading — ‘Relationship between current medical condition and employment’. The Panel also said in its reasons that it ‘considered the nature of the Plaintiff’s current medical condition in conjunction with the Plaintiff’s employment from 2004 to 2011.’
[19]Ms Gravestock contended that if the Panel erred in the way contended, then that error infected its finding that her current condition was in no way connected to her work with Boral Roofing Pty Ltd and therefore that finding was unsafe.
However, in my view, when the Panel’s answers and reasons are read as a whole and in the context of the material and arguments put before the Panel, it is apparent that it did not err in the way Ms Gravestock alleged. It is apparent that the Panel disagreed with Associate Professor Littlejohn’s view that Ms Gravestock had developed a work-related myofascial pain syndrome in her shoulder that had then triggered the fibromyalgia. The Panel instead concluded that although Ms Gravestock had developed fibromyalgia, which had since developed into some other chronic pain condition, the fibromyalgia had not been caused in any way by her work and had not resulted from a work-related myofascial pain syndrome. This follows, cumulatively, from the following:
(a) The Panel did not make a diagnosis of a past myofascial pain syndrome, in circumstances where it had referred to that potential diagnosis earlier in its reasons, and where it was a condition contended for by Ms Gravestock. The Panel was not obliged to explain why it did not reach an opinion that it did not form.[20] It is most unlikely that the Panel simply overlooked that possible diagnosis and causative connection when it came to answering the questions. This is particularly so given that the Panel did consider, and diagnose, a past condition of fibromyalgia, despite that being a condition the Panel considered that Ms Gravestock no longer suffered from. In these circumstances, the absence of a diagnosis of a past myofascial pain condition indicates that the Panel considered that Ms Gravestock never had such a condition, rather than that the Panel did not consider whether or not she ever had that condition;
[20]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 502 [56] (French CJ, Crennan, Bell, Gageler and Keane JJ).
(b) The Panel’s reasons in paragraph 2 of the excerpt above, read in context, indicate that it considered that the onset of Ms Gravestock’s pain in 2010 and 2011 was associated with her fibromyalgia, rather than any prior (separate) myofascial pain syndrome. This was its view, even though the pains did not become widespread throughout her body until some time later;
(c) The italicised passage in paragraph 3 of the excerpt above is expressed in the past tense. This goes against any suggestion that the Panel was limiting itself to considering whether Ms Gravestock’s current condition, looking backwards, was work related. It suggests that the Panel instead was focusing on whether a condition from which Ms Gravestock suffered, in the past, was related to the employment that she was performing at that time. In this way, the Panel was, correctly, looking back to see whether there had been, then, a compensable injury;
(d) The Panel expressed agreement in paragraph 6 of the excerpt above with the views of Dr Kostos. As noted above, Dr Kostos, as I read his report, did not agree with a diagnosis of a past myofascial pain syndrome; and
(e) The Panel expressed disagreement in paragraph 7 of the excerpt above with Associate Professor Littlejohn’s view that part of the triggering process for the fibromyalgia was a myofascial pain syndrome.
As I read the Panel’s reasons, it concluded that Ms Gravestock developed a fibromyalgic condition over a period of time in 2011 and 2012, but that this condition was not related to her work. It concluded that she had not suffered from a separate ‘myofascial pain syndrome’. In this sense, it concluded that there had never been a compensable injury. Accordingly, this ground of appeal fails.
Ms Gravestock contended that this case was analogous to Chester v H. H. Webb & Co Pty Ltd.[21] In that case, a medical panel concluded that a worker suffered from degenerative spinal disease. A question was then asked whether employment was, or could possibly have been, a significant contributing factor to ‘the alleged’ injury, to which the medical panel answered ‘no’. The question was not broken up into whether or not employment was a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of any medical condition. The Court accepted an argument that the medical panel had not turned its mind to whether or not the worker had suffered an injury in the extended sense. I consider that decision to have turned on its own facts and to be distinguishable. In this case, the question was broken up, and I am satisfied that the Panel concluded that Ms Gravestock’s medical conditions were independent of her employment.
B.4 The significance of the prior accepted claim
[21][2019] VSC 415.
Finally, I note that the ground of appeal set out in paragraph 4 above referred to the fact that Ms Gravestock had an accepted claim. This fact did not feature in her oral or written submissions. Further, the joint statement provided to the Panel[22] confirmed that whether or not Ms Gravestock had suffered compensable injury in employment was a matter in dispute. In those circumstances, the Panel was entitled, if not required, to form its own view on the issue and was not constrained to have that view affected by the fact that a claim for compensation had earlier been accepted.
C. Ground 6 – Was the Panel’s decision legally unreasonable?
[22]See Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 304.
Ms Gravestock’s third ground of appeal was in the following terms:
The Medical Panel’s assessment of whether the plaintiff’s employment with the defendant from 2004 to 2011 was a significant contributing factor to injury sustained in that employment was logically flawed and irrational insofar as the Panel:
(a) failed to consider and determine whether and what injury within the definition of injury in subparagraph (c) of s 3 of the [Workplace Injury Rehabilitation and Compensation Act 2013] had been sustained by the plaintiff; and
(b) relied on evidence about her ability to work in subsequent employment and the causal relationship between the work tasks in her new employment and her current pain.
For the reasons set out in Part B above, I do not accept the premise put in paragraph (a) of the ground as formulated above.
I accept that legal unreasonableness is a valid ground in an application for judicial review for the same reasons I set out in Nguyen v Disler.[23] But I do not consider that it was ‘logically flawed and irrational’ for the Panel to have regard to the impact that Ms Gravestock’s current work has on her symptoms when determining the role that work generally has played, or not played, in the development of her medical condition. It seems that both employments largely involved administrative desk-based work. The fact that her current work was ‘temporally unconnected’ with the work the subject of the questions did not make it legally unreasonable for the Panel to have regard to whether or how she was coping with that work. The existence and extent of any present medical condition and its associated symptoms would likely inform any inquiry as to how and in what circumstances that condition had developed or what had produced it.
D. Ground 4 – Were the Panel’s reasons adequate?
[23][2021] VSC 140, [10]–[13]. See also Sidiqi v Kotsios [2021] VSCA 187, [52]–[60] (Beach, Kaye and Osborn JJA).
The Panel was required to state the actual path of reasoning by which it arrived at the opinion it formed in sufficient detail to enable the reviewing court to see whether or not that opinion involved an error of law.[24] Ms Gravestock’s third ground of appeal was that the Panel had failed to give ‘a proper and adequate written statement of reasons’.
[24]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501 [54] (French CJ, Crennan, Bell, Gageler and Keane JJ).
In my view, the reasons were adequate. By reason of the matters set out above, I consider that the reasons adequately reveal that although the Panel concluded that Ms Gravestock had an ongoing pain condition, it concluded that this had developed from fibromyalgia, that the fibromyalgia had not been caused by her employment, and, by necessary implication, that her employment with Boral Roofing Pty Ltd had not been responsible for any other injury. That was the reasoning process that informed the answers that were given to the questions.
E. Disposition
The proceeding ought to be dismissed.
I will hear the parties on the question of costs.
SCHEDULE OF PARTIES
S ECI 2021 01555
| AMANDA GRAVESTOCK | Plaintiff |
| - and - | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| DR SUMITRA SHANKAR | Second Defendant |
| DR PETER MILLINGTON | Third Defendant |
| DR FRANCES WISE | Fourth Defendant |
| DR ROBERT HOWELLS | Fifth Defendant |
| DR JENNIFER HARMER | Sixth Defendant |
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