Judicial review of Medical Panel decision: Fulton Hogan Industries Pty Ltd v Morley

Written by on August 25, 2026

The Supreme Court of Victoria has quashed a Medical Panel opinion after finding that the Panel failed to genuinely consider evidence of a potentially significant non-work-related cause of a worker’s spinal condition.

In Fulton Hogan Industries Pty Ltd v Gregory James Morley & Ors [2026] VSC 402, the Court considered the obligation of a Medical Panel to address the mandatory factors relevant to determining whether employment was a significant contributing factor to an injury under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRCA).

The decision provides useful guidance for practitioners preparing Medical Panel submissions and considering whether a Panel’s reasoning may be susceptible to judicial review.

Background

Mr Morley commenced employment with Fulton Hogan in approximately 2002 as a multi-skilled truck driver. His work included driving heavy trucks, repeatedly climbing in and out of vehicles, loading and unloading equipment, securing loads and occasional manual handling.

From time to time, he also operated a hand-pushed sealing trolley during bitumen works. Mr Morley described this work as physically demanding because it required him to push heavy equipment while applying bitumen adjacent to kerbs and concrete channels. The Medical Panel ultimately regarded this aspect of his employment as particularly significant.

Outside his employment, Mr Morley and his wife operated a 700-acre cattle and sheep farm.

In April 2020, Mr Morley fell backwards while lifting a sheep weighing approximately 50–60 kilograms from the back of a ute. He experienced coccygeal pain and subsequent imaging identified underlying spinal abnormalities. Despite those symptoms, he continued performing his employment for several months.

In September 2020, Mr Morley worked on resurfacing the Chisholm Prison car park, which involved repeated use of the sealing trolley. He reported that significant lumbar pain developed during this work and worsened whenever he used the trolley. The Medical Panel later identified this work as the critical work-related aggravating event.

The evidence concerning what happened next became central to the judicial review.

A number of treating medical practitioners recorded histories that Mr Morley had developed acute back pain after activities including shearing sheep, crutching sheep and baling hay in November and December 2020. Mr Morley later denied performing this heavier farm work, maintaining that contractors undertook those tasks and that his treating doctors had misunderstood the history he provided.

The Medical Panel decision

Mr Morley lodged a WorkCover claim in April 2023 alleging a work-related spinal injury. The claim was rejected and proceedings were subsequently commenced in the Magistrates’ Court.

Medical questions were referred to a Medical Panel, which concluded that Mr Morley suffered a persistent aggravation of lumbar spondylosis with spondylolisthesis and disc prolapse, and that his employment between 2002 and October 2020 — particularly the September 2020 trolley work — was a significant contributing factor.

Under section 40 of WIRCA, compensation is unavailable for relevant injuries, including an aggravation of a pre-existing disease, unless employment was a significant contributing factor.

Schedule 1, clause 25 requires the decision-maker, in determining that question, to take a number of matters into account. They include:

  • the duration and nature of the worker’s employment;
  • the particular tasks performed;
  • the probable development of the injury if the employment had not taken place;
  • hereditary risks;
  • the worker’s lifestyle; and
  • the worker’s activities outside the workplace.

The judicial review

Fulton Hogan sought judicial review of the Medical Panel’s decision.

It argued that the Panel had failed to properly consider evidence contained in six separate medical records recording that Mr Morley had reported shearing and crutching sheep and baling hay shortly before requiring surgery.

Fulton Hogan submitted that the evidence was directly relevant to the mandatory consideration concerning activities outside the workplace, as well as the question of the probable development of the injury had the employment not occurred.

Mr Morley maintained that he had not performed the heavy sheep work, that contractors undertook it, that the medical practitioners had misunderstood what he told them and that his relevant symptoms had begun months earlier during the prison resurfacing project. He also argued that the Medical Panel had considered all relevant material.

The Court’s decision

Justice Ginnane accepted that Medical Panels are afforded significant judicial deference and that judicial review does not permit a Court simply to reconsider the medical merits of a Panel’s decision.

The critical question was instead whether the Panel had genuinely considered the matters Parliament required it to consider.

Although the Panel referred to the April 2020 farm incident and referred generally to Mr Morley’s farming activities, His Honour found that it had failed to engage with the evidence suggesting that Mr Morley had undertaken heavy sheep work in November 2020.

Importantly, the material was not merely buried somewhere within a large volume of medical evidence. Fulton Hogan had specifically relied upon it in written submissions and it appeared repeatedly in the medical records.

Because the evidence was directly relevant to the statutory requirement to consider activities outside the workplace, the Panel was required to genuinely consider it. Its failure to do so amounted to jurisdictional error.

The Court also upheld Fulton Hogan’s second ground concerning factual error for substantially the same reasons.

The third ground — failure to give adequate reasons — was not established. The Court was satisfied that the Panel had sufficiently explained its actual path of reasoning, notwithstanding the jurisdictional error identified elsewhere in its decision.

The Court therefore:

  • quashed the Medical Panel’s Certificate of Opinion and Opinion dated 17 April 2025; and
  • remitted the medical questions to a differently constituted Medical Panel.

Why the decision matters

One of the most useful aspects of Morley is the distinction between failing to accept evidence and failing to consider evidence.

A Medical Panel is not required to accept a competing factual or medical proposition simply because a party puts it forward. However, where evidence is materially relevant to a mandatory statutory consideration, the Panel must genuinely engage with it before reaching its conclusion.

For practitioners, the decision reinforces the importance of expressly identifying competing causal explanations and connecting them to the relevant statutory considerations in submissions to the Medical Panel.

In particular:

  • identify each relevant mandatory consideration under Schedule 1, clause 25;
  • make alternative causal explanations explicit;
  • clearly identify significant factual disputes and explain their relevance to the statutory factors; and
  • if considering judicial review, focus on whether the Panel genuinely addressed the relevant material rather than simply arguing that its medical conclusion was wrong.

Morley builds on the principles considered in Victorian WorkCover Authority v Putrus [2023] VSCA 28 and Victorian WorkCover Authority v Jamali [2023] VSCA 240. It confirms that, while judicial review is not an opportunity to reargue the medical merits, review remains available where a Medical Panel fails to consider significant material directed to matters the legislation requires it to take into account.

Posted Under: Uncategorized