Grujovska v Brand - [2022] VSC 63

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 04553

NATASHA GRUJOVSKA	Plaintiff
v
DR CAROLINE BRAND & Ors (according to the schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2022
DATE OF JUDGMENT:	18 February 2022
CASE MAY BE CITED AS:	Grujovska v Brand
MEDIUM NEUTRAL CITATION:	[2022] VSC 63

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Adequacy of reasons – Whether panel explained path of reasoning to its conclusion that worker’s complaints and symptoms are no longer materially contributed to by relevant claimed injury – Whether panel required to identify alternative cause for worker’s complaints and symptoms – Whether panel failed to apply correct test for material contribution – Whether panel erred in failing to record in its answers a finding that worker had a psychiatric pain disorder – Gruma Oceania v Baker [2014] VSCA 252 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P A Czarnota with Ms A Tate	Shine Lawyers Pty Ltd
For the First, Second, Third and Fourth Defendant	No appearance	DLA Piper Australia
For the Fifth Defendant	Mr M F Fleming QC with Ms F C Spencer	Thomson Geer Lawyers

HIS HONOUR:

A. Background

Ms Grujovska, the plaintiff, hurt her lower back in December 2016 when she was working as a baggage handler at the Melbourne Airport in the course of her employment with Bailey Personnel Pty Ltd, the fifth defendant. Ms Grujovska has applied under s 335(2)(d)(i) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) to the County Court of Victoria for leave to commence proceedings for the recovery of damages. In order to obtain that leave, she has to establish that she has a ‘serious injury’ as that term is defined in s 325(1) of the Act. She contends that the injury to her lower back has resulted in a permanent serious impairment or loss of a body function,[1] and also in a permanent severe mental or behavioural disturbance or disorder.[2] She has specified the injury or injuries relied on as an injury to the lower back, a fibromyalgia syndrome, and a secondary psychological injury.
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 325(1), para (a) of the definition of ‘serious injury’.
[2]Ibid s 325(1), para (c) of the definition of ‘serious injury’.

On 3 July 2020, the County Court, pursuant to s 274 of the Act, referred to a medical panel established under Division 2 of Part 12 of the Act (‘the Panel’) the following questions:

1.        What is the nature of the medical condition/s of the Plaintiff’s:
(a)       Lower back;
(b)       Fibromyalgia syndrome;
(c)       Mind?
2.Does 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…

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 63
Decision Date: 18 February 2022

CaseChat Overview and Summary

The matter of Grujovska v Brand was heard in the Supreme Court of Victoria. The applicant, Grujovska, sought judicial review of a decision made by a medical panel concerning the contributory factors to her symptoms and complaints, following an industrial injury. The primary focus of the dispute was whether the panel adequately explained its reasoning and applied the correct legal test in determining that the applicant's complaints and symptoms were no longer materially contributed to by the relevant injury.

The court was required to decide whether the panel sufficiently outlined its reasoning, whether the panel was obliged to identify an alternative cause for the applicant's complaints and symptoms, and whether the panel correctly applied the test for material contribution. Additionally, the court examined whether the panel erred in not recording in its findings that the applicant had a psychiatric pain disorder, which would have been pertinent to the assessment.

In delivering its judgment, the court found that the panel had adequately explained the path of its reasoning, leading to its conclusion that the applicant's complaints and symptoms were no longer materially contributed to by the claimed injury. The court held that the panel was not required to identify an alternative cause for the applicant's complaints and symptoms and that the panel had applied the correct test for material contribution. The court also found that the panel's failure to record a finding of a psychiatric pain disorder did not constitute an error that would warrant the setting aside of the decision.

The application for judicial review was dismissed, with the court finding that the panel's decision was adequately reasoned and legally sound. The applicant's complaints about the panel's failure to identify an alternative cause or to record a finding of a psychiatric pain disorder did not undermine the validity of the decision.

Orders