Grujovska v Brand
[2022] VSC 63
•18 February 2022
| 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 the Plaintiff throughout the course of her employment with the Firstnamed Defendant, including in the work incident on or about 11 December 2016?
The phrase ‘fibromyalgia syndrome’ is capable of being used in different ways.[3] Here, it was used as a description of an organic condition of the nervous system. I can say this because some of the doctors who had seen Ms Grujovska had diagnosed that condition and made it clear that they were referring to an organic condition. That said, it seems that her mother had a similar condition, and, on the medical opinions provided to the Panel, there was a divergence of views not just as to whether she had the condition but also, if she did, whether it was a condition that resulted from the original back injury.
[3]Mutual Cleaning and Maintenance v Stamboulakis (2007) 15 VR 649, 651–2 [3]–[7] (Maxwell P); Sidiqi v Kotsios [2021] VSCA 187, [24] (Beach, Kaye and Osborn JJA).
The Panel, consisting of a rheumatologist, a neurosurgeon, a general practitioner and a psychiatrist,[4] examined Ms Grujovska in September 2020, and by an opinion certified on 21 October 2020 answered the first question as follows:
[4]These doctors were the first to fourth defendants. In accordance with Queen v The Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, they advised the Court that they did not wish to appear or to be represented at the hearing, unless costs were sought against them, and that they would submit to such orders as were made.
Answer [to question 1]:
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.
It answered the second question as follows:
Answer [to question 2]:
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] 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
[c][5] 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.
[5]There is a typographical error in the Certificate of Opinion. The Certificate has answers to (a), (b) and (d), rather than (a), (b) and (c). In these reasons I have treated the (d) as if it were a (c).
The reasons demonstrate that the Panel performed what seems to have been a thorough physical examination of Ms Grujovska. Ms Grujovska presented with a normal gait, the ability to stand and walk on her heels and toes, no symptoms of complex regional pain syndrome, a normal range of motion in her lumbar spine, and with normal tone, power and reflexes. The Panel referred to the radiology performed, which included an x-ray, a CT scan, two MRI scans and a bone scan, which were reported as being either normal or as failing to identify any changes of clinical significance. The Panel said that it found no signs of ongoing organic injury. It expressly considered, but rejected, the diagnosis of an (organic) fibromyalgia syndrome. Then, in the course of its reasons, the Panel said the following:
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 3½ 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 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.
The answers, and the reasons provided with them, reveal that the Panel concluded that Ms Grujovska had suffered a work-related soft tissue injury to her lower back in the incident in December 2016, that the soft-tissue injury had since resolved, and that Ms Grujovska did not presently have fibromyalgia syndrome.
Ms Grujovska has now applied to this Court under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 for an order in the nature of certiorari quashing the opinion of the Panel and an order remitting the questions to a differently constituted medical panel.
B.Did the Panel err by failing adequately to explain why it formed the view that Ms Grujovska’s complaints and symptoms were not materially contributed to by the initial injury?
Ms Grujovska first 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. She did not challenge the Panel’s reasons in so far 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. Rather, she submitted 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.
In my view, however, this submission proceeds on a false premise. It assumes that the Panel concluded that Ms Grujovska’s ‘complaints and symptoms’, at the time of its examination, were sequelae of the original soft tissue injury. There is, perhaps, some lack of precision in the Panel’s answers and reasons. The inclusion of the phrase ‘relevant to the claimed injuries’ at the end of the answer to question 1 is, perhaps, capable of being read as indicating that the reference to the ‘non specific lumbar spine complaints and symptoms’ must be ‘relevant’ to the claimed back injury and this must carry with it the notion that they are sequelae of it. Similarly, the inclusion of the words ‘resulted from’ in the answer to question 2(a), perhaps, is capable of being read as indicating that there remained a causal connection between the complaints and symptoms and the initial back injury. But I do not consider that that would be a fair reading.
The Panel is not a court but is a body of expert doctors and its reasons must be read accordingly and not scrutinised over-zealously by seeking to discern whether some inadequacy may be gleaned from the way the reasons are expressed or otherwise from loose language.[6] The first question asked of the Panel was simple: ‘what is the nature of the medical condition/s of the plaintiff’s lower back?’ That phrasing does not indicate that any condition referred to in the answer must be a sequela of the original injury. I read the inclusion of the phrase ‘relevant to the claimed injuries’ in the answer as, effectively, a redundant addition indicating that the Panel’s answers have been directed solely at Ms Grujovska’s lower back, claimed fibromyalgia syndrome, and her mind. Similarly, the phrase ‘resulted from, but is no longer materially contributed to [by] the lower back injury’ does not indicate that the current complaints and symptoms remain sequelae of the December 2016 back injury. It indicates instead only that the Panel accepted that the back injury had been, previously, a cause of lumbar spine complaints and symptoms. The use of the past tense ‘resulted’, coupled with the present tense ‘is no longer’, supports this conclusion.
[6]Gruma Oceania v Baker [2014] VSCA 252, [29] (Neave, Santamaria, Kyrou JJA).
In my view, this interpretation of the answers is not only the preferable view of the answers read alone in context, but is compelled by the passages set out in the reasons quoted in para 6 above. I read the Panel’s reasons as revealing a reasoning process whereby the Panel concluded that:
(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.
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.[7] But, at least in the circumstances of this case, that did not require the Panel to identify an alternate cause.
C.Did the Panel fail to record in its answers a finding apparent from its reasons that Ms Grujovska had a psychiatric pain disorder?
[7]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).
Ms Grujovska also submitted that the Panel’s reasons show that it had concluded that her complaints and symptoms were psychiatric in origin, and that there was thus a ‘disconnect’ between the reasons and the answers to questions 1(c) and 2(c), because those answers made no reference to that finding.
The submission that the Panel concluded that Ms Grujovska’s complaints and symptoms were psychiatric in origin was based in part on its failure to identify an organic cause of those complaints and symptoms, but principally on the following passage in its reasons:
The Panel noted the reports of Associate Professor Saji Damodaran dated 23 November 2018 and 1 December 2018. Associate Professor Damodaran diagnosed Ms Grujovska to be suffering from an adjustment disorder with anxiety and depressed mood in the context of chronic pain disorder associated with a general medical condition and possible psychological factors. The Panel agreed with Associate Professor Damodaran’s diagnosis.
Again, I do not accept the premise of this argument. When read in context, this passage indicates the Panel’s agreement with Associate Professor Damodaran’s opinion that Ms Grujovska was suffering from an adjustment disorder, but does not indicate that the Panel thought that Ms Grujovska had a (psychiatric) chronic pain disorder. This is because:
(a) Associate Professor Damodaran did not, in fact, diagnose a psychiatric chronic pain disorder. In his first report, he noted, and by implication accepted, that Ms Grujovska had fibromyalgia, in the context of that being an organic condition. Then, when asked whether Ms Grujovska had ‘a diagnosable psychiatric condition’, he did not refer to any pain disorder, but said:
Based on the available information I am of the opinion that Ms Grujovska is suffering from a diagnosable psychiatric condition, namely anxiety disorder with mixed anxiety and depressed mood …
In context, therefore, the ‘chronic pain disorder’ referred to by Associate Professor Damodaran was a reference to the diagnosis made by others, and accepted by him, of fibromyalgia, rather than to any psychiatric pain condition; and
(b) The fact that immediately below the passage set out in para 15 above, the Panel said:
The Panel noted the report of consultant psychiatrist Dr Gregor Schutz dated 18 May 2020. Dr Schutz diagnosed Ms Grujovska to be suffering from a mild to moderate adjustment disorder with mixed anxiety in the context of pain. Dr Schutz also diagnosed Ms Grujovska to be suffering from a pre-existing premenstrual dysphoric disorder or an adjustment disorder with depressed mood. The Panel agreed with Dr Schutz’s diagnosis.
As is apparent, Dr Schutz did not conclude that Ms Grujovska had a psychiatric chronic pain disorder. The diagnosis common to both Associate Professor Damodaran and Dr Schutz was the diagnosis of a current adjustment disorder, and that is the diagnosis given in answer to questions 1(c) and 2(c). That common diagnosis is the diagnosis with which the Panel agreed.
Further, the answers in fact given to questions 1(c) and 2(c) made no reference to a chronic pain disorder. One starts with the proposition that the opinion formed is that which is given in the answer. There would have to be a clear disconnect between the reasons and the answer to conclude that the answer mistakenly failed to record a relevant diagnosis. In my view, there was no such disconnect here.
D. Error in the determination of material contributing factor
Ms Grujovska also contended that the reasons established that the Panel had failed correctly to apply the ‘material contributing factor’ test. Again, however, this proceeded on what I consider to have been a misconception that the Panel had found that Mr Grujovska’s complaints and symptoms were still sequelae of the original injury, but that the original injury was nonetheless not now a ‘materially contributing factor’ to them. For the reasons set out above, as I read the reasons, the Panel was not saying that the complaints and symptoms with which Ms Grujovska presented to it were sequelae of the December 2016 injury. Accordingly, there is no basis to conclude from the reasons that the Panel misapplied the relevant legal test.
E. Disposition
The application will be dismissed.
I will hear the parties on the question of costs.
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SCHEDULE OF PARTIES
S ECI 2020 04553
| NATASHA GRUJOVSKA | Plaintiff |
| -and- | |
| DR CAROLINE BRAND | First defendant |
| -and- | |
| ASSOCIATE PROFESSOR MICHAEL MURPHY | Second defendant |
| -and- | |
| DR SALLYANN MIDDLETON | Third defendant |
| -and- | |
| ASSOCIATE PROFESSOR ABDUL KHALID | Fourth defendant |
| -and- | |
| BAILEY PERSONNEL PTY LTD | Fifth defendant |
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