News and Insights

In the recent Court of Appeal case of Grukovska v Dr Caroline Brand and Ors, concerning a medical panel opinion, the court outlined the difference between a complaint about the adequacy of reasons and a complaint about the reasoning itself.

The applicant worker was employed by Bailey Personnel and assigned to work for Dnata as a baggage handler at Melbourne Airport. On 11 December 2016, the applicant sustained a back injury while manually handling a heavy bag. A WorkCover claim was accepted and entitlements were paid.

In October 2019, the worker sought to sue her employer by claiming a serious injury to her lower back, with fibromyalgia and a secondary psychological condition. In July 2020, a County Court judge referred two medical questions to a medical panel for determination. The Medical Panel then returned an opinion concluding that while the worker had initially sustained a soft tissue injury to the lower back, that injury by the time of their examination, had resolved.

The applicant worker, aggrieved by this outcome, sought review in the Supreme Court to quash the opinion. It was their case the panel’s reasons were inadequate as they failed to explain an actual path of reasoning. In essence, they said the reasons of the panel failed to explain why they accepted ongoing lumbar spine complaints and symptoms, but concluded they were no longer materially contributed to by the initial injury.

The matter proceeded before Justice Gorton who stated that on a fair reading of the opinion, it was well reasoned that the worker sustained an initial injury, but with time had resolved by their examination. The court noted the panel’s ‘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’.  It did not, at least in this case, require the Panel to identify an alternative cause of the worker’s complaints and symptoms.

The worker then sought review in the Court of Appeal. The substance of the appeal was noted to be largely those arguments advanced below.  Essentially, the Panel was obliged to sufficiently 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 Court found against the applicant worker and dismissed the appeal. In doing so they noted, as stated in many previous authorities:

• • a medical panel is an administrative tribunal whose members are not lawyers;
  • it is an expert tribunal and not a judicial body;
  • 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 how the reasons are expressed;
  • a panel is not required to give reasons of the kind which would be required by a tribunal carrying out an adjudicative function;

In applying these principles to the present case, the Court stated:

• • the applicant sought to complain about the panel’s reasoning, rather than the adequacy of the panel’s reasons
  • a fair reading of the panel’s reasons showed they accepted the applicant sustained a work-related soft tissue injury to the lower back in December 2016, associated with some complaints and symptoms, that the soft tissue injury resolved over 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
  • The panel explained this 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.

This is another example of the dangers of over-scrutinising medical panel reasons to identify errors from the way they are expressed.