Grujovska v Brand
[2023] VSCA 59
•22 March 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0025 |
| NATASHA GRUJOVSKA | Applicant |
| v | |
| DR CAROLINE BRAND AND ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | BEACH, NIALL and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 March 2023 |
| DATE OF JUDGMENT: | 22 March 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 59 |
| JUDGMENT APPEALED FROM: | [2022] VSC 63 (Gorton J) |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Adequacy of reasons – Whether medical panel’s reasons adequate – Reasons not to be scrutinized over-zealously seeking to discern error from way reasons expressed – Distinction between complaint about adequacy of reasons and complaint about reasoning – No inadequacy in panel’s reasons – Application for leave to appeal refused.
Workplace Injury and Rehabilitation Act 2013, ss 274, 304 and 335.
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 applied. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Dundar v Bas [2019] VSCA 315; Sidiqi v Kotsios [2021] VSCA 187, referred to.
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| Counsel | ||
| Applicant: | Mr PA Czarnota and Ms A Tate | |
| First to Fourth Respondents: | No appearance | |
| Fifth Respondent: | Mr MF Fleming KC with Ms FC Spencer | |
Solicitors | ||
| Applicant: | Shine Lawyers | |
| First to Fourth Respondents: | DLA Piper | |
| Fifth Respondent | Thomson Geer Lawyers | |
BEACH JA
NIALL JA
KAYE JA:
In November and December 2016, Natasha Grujovska (‘the applicant’) was employed by a labour hire company, Bailey Personnel Pty Ltd (‘the fifth respondent’). She was assigned to work for DNATA Airport Services Pty Ltd as a baggage handler at Melbourne Airport. She alleges that on 11 December 2016, she was struck by a falling bag while unloading luggage from a container and, as she bent down to lift the bag, she felt lower back pain.
On 13 January 2017, the applicant lodged a WorkCover claim in respect of a ‘lower back’ injury sustained on 11 December 2016 after lifting a ’28-32 kg bag’ and turning to throw the bag onto a belt. Her claim for compensation was accepted. Since then, apart from a failed attempt to return to work for another employer in November 2017, the applicant has not engaged in employment.
In October 2019, the applicant commenced a proceeding in the County Court seeking leave to bring a claim for common law damages pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Act’). She relied upon injuries to her lower back, fibromyalgia syndrome and a secondary psychological injury in support of her application for leave to commence a common law proceeding.
On 2 July 2020, pursuant to s 274(1)(b) of the Act, a County Court judge referred two medical questions to a medical panel. Subsequently, a medical panel was convened comprising Dr Caroline Brand, a rheumatologist; Associate Professor Michael Murphy, a neurosurgeon; Dr Sallyann Middleton, a general practitioner; and Associate Professor Abdul Khalid, a psychiatrist.
On 21 October 2020, the medical panel provided a certificate of its opinion and a written statement of its reasons. In essence, and relevantly for present purposes, the medical panel concluded that the injury the applicant suffered to her low back in the course of her employment had resolved.
Following receipt of the medical panel’s opinion and reasons, the applicant commenced a proceeding in the Trial Division, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, against the medical panel and the fifth respondent, seeking relief in the nature of certiorari to quash the medical panel’s opinion. The trial of this proceeding was heard on 15 February 2022. On 18 February 2022, the judge dismissed the applicant’s proceeding and ordered her to pay the fifth respondent’s costs.[1]
[1]Grujovska v Brand [2022] VSC 63 (‘Reasons’).
The applicant now seeks leave to appeal from the judge’s orders on a single proposed ground of appeal as follows:
The trial judge erred in finding that the reasons of the medical panel explained the actual path of reasoning by which it arrived at its opinion, in answer to medical questions 1 and 2, that found ‘non-specific lumbar spine complaints and symptoms in the setting of a resolved soft tissue injury’ resulted from, but are no longer materially contributed to by the lower back injury suffered in the course of her employment with the fifth respondent, including in a work incident on about 11 December 2016.
The opinion of the medical panel
In its certificate of opinion, the medical panel set out the medical questions which had been referred to it, together with the panel’s answers as follows:
Question 1 What is the nature of the medical condition/s of the Plaintiff’s:
(a) Lower Back;
(b) Fibromyalgia syndrome;
(c) Mind?
Answer: The Panel is of the opinion that Ms Grujovska is suffering from:
(a)Non specific lumbar spine complaints and symptoms in the setting of a resolved soft tissue injury;
(b) No current diagnosis of fibromyalgia syndrome; and
(c)Aggravation of a pre-existing chronic adjustment disorder with mixed anxiety and depressed mood secondary to her physical injury.
Relevant to the claimed injuries.
Question 2Does any, and if so which, medical condition as found in answer to Question 1(a) – 1(c) result from, or is it materially contributed to by, the lower back injury suffered by the Plaintiff throughout the course of her employment with the Firstnamed Defendant, including in the work incident on or about 11 December 2016?
Answer: The Panel is of the opinion that:
(a)Ms Grujovska’s condition of non-specific lumbar spine complaints and symptoms in the setting of a resolved soft tissue injury resulted from, but is no longer materially contributed to [by][2] the lower back injury suffered by her throughout the course of her employment with the Firstnamed Defendant, including in the work incident on or about 11 December 2016
(b)Not applicable, and
(d)Ms Grujovska’s psychiatric condition of aggravation of a pre-existing chronic adjustment disorder with mixed anxiety and depressed mood secondary to her physical injury, resulted from and remains materially contributed to by the claimed lower back injury.[3]
[2]From the panel’s reasons, it is apparent that, in completing the certificate of opinion, the word ‘by’ was accidentally omitted from this part of the panel’s answer to question 2.
[3]In context, while this paragraph was numbered (d), it was the panel’s answer to part (c) of question 2.
The reasons of the medical panel
The panel commenced its reasons by noting that the applicant was examined jointly by Dr Brand, Associate Professor Murphy and Dr Middleton on 3 September 2020; and separately by Associate Professor Khalid on 10 September 2020. The panel stated that it formed its opinion having had regard to the documents and information referred to in Enclosures A and B — being documents that had been provided to the medical panel by the parties. These documents included the applicant’s WorkCover claim form; radiology reports; medical reports; the certificate of opinion and reasons of an earlier medical panel, dated 3 March 2019; various clinical records; submissions made by the parties; and a document specifying the injury to which the medical questions related, the facts which had been agreed and the facts which were in dispute, as required by s 304(a) of the Act.
The panel then described the issues and relevant background matters, the applicant’s description of her work, her history as to the onset of injury, her progress since January 2017, her current symptoms, her functional status and her treatment. Next, the panel recorded its findings on physical examination. These included:
•There was normal spinal alignment with a slightly exaggerated lumbar lordosis consistent with her body habitus
•There were no signs of generalised soft tissue pain
•There was very mild right paraspinal tenderness to gentle palpation at the L4/5 level. There was no dysesthesia or hyperalgesia.
•Active lumbar spine movements were observed and noted to be within normal range in all planes and without evidence of dysmetria or paraspinal muscle spasm
The panel then referred to the results of medical investigations, noting that the CT, X-ray, MRI and bone scan reports were all essentially normal.
Next, the panel set out material relevant to the psychiatric assessment of the applicant, including the results of a mental state examination. Given that the application for leave to appeal is concerned with the panel’s reasons in relation to the applicant’s back condition, it is not necessary to summarise those parts of the panel’s reasons dealing with psychiatric matters.
Under the heading, ‘Physical analysis and opinion’, the panel set out its reasons for its opinions concerning the plaintiff’s lower back and alleged fibromyalgia syndrome. In light of the applicant’s submissions about the inadequacy of these reasons, it is necessary to set them out in full. The panel said:
The Panel considered Ms Grujovska’s history of the mechanism of injury, response to treatment and progress over time in association with the Panel’s assessment on 3 September 2020, medical imaging results and medical reports included in the referral.
The Panel noted the content of the Certificate of Opinion and Reasons for Opinion of a previous differently constituted Medical Panel (‘the prior Panel’), dated 3 March 2019, wherein the prior Panel concluded that the worker at that time was suffering from “chronic back pain (complaints and symptoms) with absence of corresponding spinal pathology relevant to the accepted physical injury.”
The Panel considered that, based on the history of the mechanism of injury during a bending, lifting and twisting movement and the lack of significant medical imaging abnormality, Ms Grujovska suffered a mild soft tissue injury without significant anatomical structural derangement or radiculopathy on 11 December 2016.
The Panel noted that, although Ms Grujovska’s physical symptoms have persisted since the claimed injury and have not responded to appropriate physical rehabilitation intervention, pain modulating medication and a pain management program, the natural history for a mild soft tissue injury would be complete resolution within the time frame of over three and a half years since the initial incident on 11 December 2016. In keeping with this opinion, the Panel noted on examination on 3 September 2020 that Ms Grujovska exhibited a normal range of lumbar spine movement without evidence of radiculopathy. Further, the Panel noted postural lumbar spine increased lordosis associated with an overweight body habitus which may predispose to non-specific lumbar spine discomfort.
The Panel also noted that whilst Ms Grujovska has previously been diagnosed with fibromyalgia syndrome and she provides a past medical history of unrefreshed sleep pattern, irritable bowel syndrome and headaches and other pain conditions (dysmenorrhoea) which can be associated with fibromyalgia syndrome. However, Ms Grujovska described localised low back pain and said that she has no widespread pain which is the hallmark of a fibromyalgia condition. Further, the Panel confirmed lack of widespread soft tissue pain in its examination of Ms Grujovska on 3 September 2020 at which time it demonstrated only mild localised soft tissue tenderness in the lumbar region.
The Panel considered the more recent MRI lumbar spine scan dated 13 June 2019 which was performed after the prior Panel assessment. The Panel considered that the minimal lumbar spine disc changes reported were of no clinical significance. The Panel noted that Ms Grujovska said that her condition overall had improved and that there has been no significant deterioration in Ms Grujovska’s physical symptoms since the prior Panel assessment on 3 March 2019.
Based on these findings, the Panel concluded that Ms Grujovska is suffering from physical diagnoses of:
(a)Non-specific lumbar spine complaints and symptoms in the setting of a resolved soft tissue injury;
(b)No current diagnosis of fibromyalgia syndrome
Relevant to the claimed lower back injury.
The Panel also considered the issue of material contribution, noting:
•The role of Baggage Handler which involved her lifting, twisting, pulling and pushing luggage, some of which she said were heavy and for which no ‘heavy’ tags were attached;
•She did not have a history of prior low back symptoms nor of daily activities outside work which would predispose her to low back injury. She has a history of prior menstrual related pain symptoms (dysmenorrhoea);
•She was employed for about 2 weeks when she first developed symptoms of low back aching;
• On or about 11 December 2016 she suffered a specific incident when opening a container, whereby a heavy bag, without a ‘heavy’ tag hit her leg. She then bent to lift the bag then twisted, resulting in a sudden onset of low back pain, with shooting pain into her legs;
• Ms Grujovska was able to continue working. She consulted her GP and was treated with an anti-inflammatory medication. Investigations including CT scan, X-rays, bone scan and MRI scan did not demonstrate any significant abnormalities; a more recent MRI scan reported minor disc changes which the Panel considered were not of clinical significance and did not reflect her presenting symptoms and lack of clinical signs of spinal injury;
•Ms Grujovska was certified fit for modified duties, which she performed until she was sent home before Christmas in December 2016. She has not returned to any form of employment with this employer;
•Her back pain symptoms have persisted despite ceasing work;
•She attempted a return to work with another employer but described worsening mental state and difficulty walking up and down stairs;
•She has been assessed by a number of rheumatologists and has been diagnosed with fibromyalgia condition and pain amplification;
•She underwent a pain management course, finding the mental health support helpful but not physical therapy;
•A prior Panel reported no evidence of spinal injury. The current Panel concurred with this assessment;
•The current Panel noted features in the history of headaches and unrefreshed sleep pattern as well as prior pain problems associated with menstruation which can be seen in people with fibromyalgia syndrome but Ms Grujovska did not provide a current history consistent with the hallmark widespread pain associated with fibromyalgia and the Panel found no physical signs consistent with this diagnosis.
The Panel concluded that the initial mechanism of injury and lumbar spine symptoms were consistent with a soft tissue injury of the lumbar spine. However, the Panel also concluded that the subsequent progress over a period of three and a half years, including persistent non-specific pain and symptoms and lack of response to appropriate physical and pharmacological interventions, in the setting of normal lumbar spine examination findings and lack of medical imaging evidence of significant structural disturbance, indicate that any soft tissue injury has resolved.
As the Panel concluded that Ms Grujovska’s soft tissue injury to the lower back on 11 December 2016 has now resolved the Panel therefore concluded that the Plaintiff’s soft tissue injury of the lower back (now resolved) resulted from and was but is no longer materially contributed to by the alleged injury to the lower back.
Having expressed that conclusion, the panel referred to three opinions expressed in letters and medical reports contained in the referral documents, saying that it disagreed with two of these opinions,[4] but agreed with the third opinion[5] that:
based on the evidence from the treating doctors, the negative outcomes in respect of copious radiological investigations (X-rays, CT, MRI and nuclear bone scans) ... there is no longer a physical injury to which employment has been a cause.
[4]Expressed by Dr Lionel Schachna, a treating rheumatologist; and Dr Robyn Horsley, an occupational physician.
[5]Expressed by Dr Gary Davison.
Finally, under the heading, ‘Psychiatric analysis and opinion’, the panel set out its conclusions in respect of the applicant’s claimed psychiatric injury. Again, having regard to the issues presently in dispute between the parties, it is not necessary for us to set out any of that material.
The judge’s reasons
In noting that the applicant submitted that the panel’s reasons were inadequate because they failed to explain the actual path of reasoning by which it arrived at its opinion, the judge observed that the applicant ‘did not challenge the panel’s reasons insofar as they explained why the panel had concluded that Ms Grujovska had recovered from the soft tissue injury she suffered at work in December 2016’.[6] The judge recorded the submission made by the applicant that:
[A] fair reading of the Panel’s reasons demonstrates that the Panel accepted that Ms Grujovska had ongoing lumbar spine complaints and symptoms that were ‘relevant’ to the claimed lower back injury. Ms Grujovska then submitted that the Panel’s reasons were deficient because they did not ‘explain why her ongoing “non-specific lumbar spine complaints and symptoms” – sequelae arising from the compensable, resolved soft tissue injury – are themselves no longer materially contributed to by the original injury’. She submitted that ‘clearly, “complaints and symptoms” are not a condition but sequelae’. She submitted that this deficiency in the reasons was an error of law because it did not permit the Court to determine whether or not the Panel had correctly applied the concept of ‘material contributing factor’ when determining whether the present complaints and symptoms were materially contributed to by the original soft tissue injury.[7]
[6]Reasons, [9].
[7]Ibid.
The judge said that the applicant’s submission, however, proceeded on the false premise that the panel had concluded that the applicant’s ‘complaints and symptoms’, at the time of its examination, were sequelae of the original soft tissue injury.[8] The judge accepted that there was some ‘lack of precision’ in the panel’s answers and reasons — saying that it was possible to read the answer to question 2(a) as suggesting that there remained a causal connection between the applicant’s initial back injury and her complaints and symptoms at the time of the panel’s examination of her.[9]
[8]Ibid [10].
[9]Ibid.
The judge concluded that, fairly reading, the panel’s opinion was that the applicant had suffered an initial back injury in the course of her employment which was a cause of ‘lumbar spine complaints and symptoms’, but that, by the time of the panel’s examination of the applicant, her work-related injury had resolved. The judge described the panel’s reasons as ‘revealing a reasoning process’, whereby the panel concluded:
(a)Ms Grujovska suffered a work-related soft tissue injury to her lower back in December 2016, which was associated with some complaints and symptoms;
(b)that soft tissue injury had resolved with the passage of time;
(c)that soft tissue injury had not resulted in a fibromyalgia syndrome; and
(d)the current complaints that Ms Grujovska has relating to her lower back did not result from (in the sense that they are not materially contributed to, or sequelae of) that initial, work-related injury.[10]
[10]Ibid [12].
The judge concluded his analysis for rejecting the applicant’s complaint about the adequacy of the panel’s reasons as follows:
It is true that the Panel has not explained what it is that is causing Ms Grujovska’s current symptoms, assuming that the Panel accepted them as genuine. But that was not its role; its role in answering the second question was simply to opine on whether the ‘conditions’ that it found existed at the time of its examination resulted from or were materially contributed to by the initial back injury. Having concluded that the complaints and symptoms that existed at the time of its examination were not materially contributed to by the work-related injury, it was obliged to explain why it formed that view in sufficient detail to enable a court to see whether that opinion involved an error of law. But, at least in the circumstances of this case, that did not require the Panel to identify an alternate cause.[11]
[11]Ibid [13].
Applicant’s submissions in this Court
In essence, on this application, the applicant repeated the submissions she made to the primary judge. The applicant accepted that the panel provided adequate reasons which set out its path of reasoning as to why ‘the mild soft tissue lower back injury had resolved, and why (given it had resolved) the soft tissue injury was no longer materially contributed to by the [work-related] incident’. The applicant contended, however, that this was not the ‘medical condition’ found in answer to question 1, which was a physical diagnosis of ‘non-specific lumbar spine complaints and symptoms’. It was then submitted that the panel accepted the veracity of the applicant’s complaints of persisting pain, by concluding that she was suffering ‘symptoms’, and not merely making ‘complaints’.
The applicant submitted that there was an important distinction between an original medical condition (in this case, a soft tissue lower back injury) and a ‘current medical condition, found by a medical panel to exist at the date of its examination’ (in this case, non-specific lumbar spine complaints and symptoms in the setting of a resolved soft tissue injury). The applicant submitted that the distinction was important:
… because original medical conditions can resolve with treatment or time, but symptoms of pain can remain. Fractures can heal. Tendons can be repaired. Soft tissue injuries can resolve. But, where complaints and symptoms of pain and dysfunction et cetera originally arise from said injuries, and those complaints and symptoms persist despite the resolution of the original injuries, it is logical and accords with common sense to infer, in the absence of clear reasons to the contrary, that persisting symptoms continue to be materially contributed to by the original injury.
The applicant submitted that the panel’s reasons failed to reveal why the panel concluded that the applicant suffered ‘non-specific lumbar spine complaints and symptoms’ which resulted from her work, but were no longer materially contributed to by that work. The applicant contended that if the present ‘non-specific lumbar spine complaints and symptoms’ were no longer materially contributed to by the applicant’s work, something must have ‘broken the causal chain’. The applicant accepted that the panel was not obliged to identify an alternate cause for the current ‘complaints and symptoms’, but said that the panel was obliged to explain why the applicant’s work was no longer a cause of those complaints and symptoms, or why her work was no longer contributing in a more than de minimus manner. The panel’s reasons ‘fail[ed] to set this out’, and were thus inadequate.
Reasons: legal principles
As has been said before, a medical panel is an administrative tribunal whose members are not lawyers:[12] it is an expert tribunal, and not a judicial body.[13] Its reasons are entitled to a beneficial construction, in the sense that they should not be scrutinised over-zealously by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[14]
[12]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 (Neave, Santamaria and Kyrou JJA) (‘Gruma’).
[13]Maimonis v Bourke [2019] VSCA 302, [51] (Ferguson CJ, Beach and Ashley JJA) (‘Maimonis’).
[14]Gruma [2014] VSCA 252; Maimonis [2019] VSCA 302, [51(3)]. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2.
In Wingfoot Australia Partners Pty Ltd v Kocak,[15] the High Court held that, consistently with the nature of its function, a medical panel must explain the path of reasoning by which it has arrived at its opinion. The reasons must enable a court to assess whether the panel’s opinion involved an error of law. A panel is not required to give reasons of the kind which would be required by a tribunal carrying out an adjudicative function. In Dundar v Bas,[16] this Court summarised the relevant principles governing the assessment of the adequacy of a medical panel’s reasons as follows:
First, the standard is that required by Wingfoot. A statement of reasons must be sufficient to explain the Panel’s path of reasoning, and to enable a court to see whether the Panel’s opinion involved any error of law.
Second, the standard of reasons required of a medical panel is not to be equated with the standard of reasons that would be required of a judge giving reasons for a final judgment after the trial of an action in a court.
Third, as a corollary —
a Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.
Fourth, the function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise.
Fifth, a panel’s reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review. …[17]
[15](2013) 252 CLR 480 (French CJ, Crennan, Bell, Gageler and Keane JJ) (‘Wingfoot’).
[16][2019] VSCA 315 (Beach, McLeish and Ashley JJ).
[17]Ibid [47]–[51] (Beach, McLeish and Ashley JJA) (citations omitted). See also Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45 (Maxwell P and Cavanough AJA); Gruma [2014] VSCA 252; Maimonis [2019] VSCA 302, [51]. See also Sidiqi v Kotsios [2021] VSCA 187, [64] (Beach, Kaye and Osborn JJA).
Consideration
The applicant’s submissions involve an analysis of the panel’s reasons of the kind that has consistently been eschewed by the authorities dealing with complaints made about the adequacy of the reasons of administrative tribunals. Specifically, by a close examination of the wording of the applicant’s answers to the medical questions and the panel’s reasons, the applicant seeks to complain about the panel’s reasoning, rather than the adequacy of the panel’s reasons.[18]
[18]As to the distinction between a complaint about the adequacy of reasons and reasoning, see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 281-2 (McHugh JA); Jordan v Kotsios [2022] VSC 332, [24] (Cavanough J).
Construing the panel’s reasons beneficially, in the sense of not over-zealously in an attempt to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed, it is plain that the panel formed the opinion that the injury the applicant suffered in the course of her employment in 2016 had resolved by the time the panel medically examined the applicant in September 2020. It formed this view because, in its expert opinion, the natural history of the applicant’s injury was one which involved a complete resolution of the injury ‘within the timeframe of over three and a half years’ which had passed since the occurrence of the work injury. The panel were fortified in their opinion by the applicant’s presentation on examination (having a normal range of lumbar spine movement without evidence of radiculopathy). Additionally, the panel went on to explain that the applicant’s ‘noted postural lumbar spine increased lordosis associated with an overweight body habitus’ was something ‘which may predispose to non-specific lumbar spine discomfort’.
We agree with the judge that a fair reading of the panel’s reasons show that the panel accepted that the applicant suffered a work-related soft tissue injury to her lower back in December 2016, which was associated with some complaints and symptoms; that soft tissue injury resolved with the passage of time; and the applicant’s current complaints did not result from (in the sense that they were not materially contributed to) by the applicant’s initial work-related injury.[19] The applicant’s attempt to construe the panel’s reasons as suggesting that the applicant’s complaints and symptoms at the time of the panel’s examination were sequelae of the original soft tissue injury must be rejected.
[19]Reasons, [12].
Moreover, the submission that it is ‘logical and accords with common sense’ to infer that continuing complaints and symptoms must be linked to an initial injury in the absence of some intervening event or reason, amounts to no more than a submission that the panel should have engaged in a different reasoning process from that which is set out in some detail in the panel’s reasons. The panel explained by reference to the history taken from the applicant, its findings on examination and its expertise, why the applicant’s work was a cause of the applicant’s original injury, but was no longer materially contributing to the complaints and symptoms from which the applicant was suffering at the time of the medical panel’s examination. Although it was not necessary for it to do so, the panel went on to posit a possible reason for the applicant’s continuing complaints and symptoms — namely, the applicant’s increased lordosis associated with an overweight body habitus.
It follows from the above that, contrary to the applicant’s submissions, the judge did not err in concluding that the reasons of the medical panel adequately explained the path of reasoning by which it arrived at its opinion unfavourable to the applicant. The applicant’s proposed ground of appeal must thus be rejected.
Conclusion
The applicant’s proposed appeal has no real prospect of success. Accordingly, leave to appeal must be refused.[20]
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[20]See s 14C of the Supreme Court Act 1986.
SCHEDULE OF PARTIES
NATASHA GRUJOVSKA Applicant and DR CAROLINE BRAND First Respondent ASSOCIATE PROFESSOR MICHAEL MURPHY Second Respondent DR SALLYANN MIDDLETON Third Respondent ASSOCIATE PROFESSOR ABDUL KHALID Fourth Respondent BAILEY PERSONNEL PTY LTD Fifth Respondent
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10
0