Abley and Comcare (Compensation)
[2024] AATA 1204
•23 May 2024
Abley and Comcare (Compensation) [2024] AATA 1204 (23 May 2024)
Division:GENERAL DIVISION
File Number(s): 2020/4381
Re:Lynette Abley
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member L M Gallagher
Date:23 May 2024
Place:Perth
The Reviewable Decision dated 30 June 2020, which denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of fibromyalgia claimed to have been sustained in January 2016, is affirmed.
................[Sgd]..........................
Member L M Gallagher
CATCHWORDS
WORKERS’ COMPENSATION – Whether liability should be accepted under s 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) for a claim of “fibromyalgia” – whether the Applicant suffered from an “ailment” – disease – whether the ailment was contributed to, to a significant degree by the Applicant’s employment with Services Australia – whether the Tribunal can be satisfied on the balance of probabilities – whether the Applicant was already suffering from symptoms of fibromyalgia prior to suffering an accepted right shoulder condition – competing expert evidence – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 5B(1), 14, 14(1), 16, 19, 29, 39, 71
REASONS FOR DECISION
Member L M Gallagher
23 May 2024
THE APPLICATION
The Applicant seeks review of a decision of the delegate of the Respondent dated 30 June 2020, which denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of fibromyalgia claimed to have been sustained in January 2016 (the Reviewable Decision).[1]
[1] R2, T79.
ISSUE
It is not in dispute that the Applicant suffers from fibromyalgia, being an ailment as defined by s 4 of the SRC Act.[2] Therefore, the sole issue for determination is whether the Applicant’s fibromyalgia condition was contributed to, to a significant degree, by the Applicant’s employment by the Commonwealth, pursuant to s 5B(1) of the SRC Act.
[2] See, for example, R1 at [81] and Respondent’s written closing submissions dated 31 January 2022 at [2.3].
BACKGROUND
The Applicant was employed as a Customer Services Officer by Services Australia (the Department), having commenced work in 2007.[3]
[3] R2, T14, p 89.
In February 2015, Commonwealth Rehabilitation Services Australia (CRS) closed a local office in which the Applicant was working.[4] The Applicant was transferred to a Medicare office at a different location, where she was trained in Medicare work.[5]
[4] R2, T14, p 89 and T27, p 142.
[5] R2, T14, p 89 and T27, p 142.
In April 2015, the Applicant commenced work as a Customer Liaison Officer at Medicare on a full-time basis.[6]
[6] R2, T27, p 142.
On 15 June 2015, the Applicant relocated to a Medicare Service Office at a different location, to be co-located with Centrelink staff.[7]
[7] R2, T14, p 89.
Between 10 July 2015 and 24 August 2015, the Applicant took six weeks’ leave for an operation to her bladder.[8]
[8] R2, T14, p 89.
A Report of Incident or Injury form dated 15 September 2015 indicates that on 9 September 2015, the Applicant was undertaking ‘data entry’ and ‘keyboarding’ when she experienced an exacerbation of a right arm injury.[9] The Applicant is reported to have described that she sustained the injury while using a standard keyboard as a temporary replacement for a compact cherry ergonomic keyboard and separate numeric pad.[10]
[9] R2, T14, p 63.
[10] R2, T14, p 63. See also transcript, p 48 [5]-[10].
The Applicant was subsequently diagnosed with recurrence of right shoulder subacromial bursitis.[11] Throughout late 2015 to May 2016, the Applicant:[12]
(a)Was referred for and attended regular physiotherapy;
(b)Underwent an ultrasound, a cortisone injection and an MRI of her right shoulder;
(c)Underwent rehabilitation assessments and ergonomic workstation assessments;
(d)Was certified unfit for work or fit for modified or alternative duties; and
(e)Temporarily reduced her work hours to care for her husband and cope better emotionally with her work environment.[13]
[11] See medical certificate issued on 16 September 2015, by Dr Anthony Pethick, General Practitioner (GP) (R2, T5).
[12] See R2, T6, T7, T8, T10, T13, T14, T15, T16 and T85.
[13] A move away from customer contact was recommended, and on 9 November 2015 the Applicant was placed in a processing role (R2, T14, p 43).
In February 2016, the Applicant was relocated to the Department of Human Services (DHS) office at a different location to work in the Medicare Consolidated Processing Team.[14]
[14] R2, T14, p 91 and A2, p 86 read with transcript, p 40 [10]-[20].
On 30 March 2016, the Applicant lodged a claim for workers’ compensation with respect to her ‘shoulder and right arm injury’ having first noticed her symptoms on 7 September 2015.[15] The Applicant claimed to have sustained her injury following her return to work after six weeks leave because her keyboard and equipment were altered or not working.[16] The Applicant stated she used standard equipment while replacement equipment was on order and her right arm injury was ‘exacerbated.’[17]
[15] R2, T3.
[16] R2, T3, p 7.
[17] R2, T3, p 7.
A statement by Ms Nicole Walmsley (Assistant Director Workplace Health) from DHS dated 4 May 2016 recorded that:[18]
While at CRS Australia a DHS Senior Rehabilitation Case Manager contacted Ms [the Applicant] on 1/12/2011 following a return to work after surgery and a period of 3 months leave…[the Applicant] reported that ‘the flu has also brought on her chronic fatigue.’ She does not mention a history of chronic fatigue in future medical or rehabilitation assessments.
[18] R2, T14, p 44.
On 28 June 2016, a delegate of the Respondent denied liability to pay compensation pursuant to s 14 of the SRC Act in respect of the Applicant’s ‘right shoulder subacromial bursitis’ on the basis that this condition was not contributed to, to a significant degree, by the Applicant’s employment with the Department.[19]
[19] R2, T18.
On 6 August 2016, the Applicant requested the determination dated 28 June 2016 be reconsidered.[20]
[20] R2, T27.
On 7 September 2016, the determination dated 28 June 2016 was varied to accept liability pursuant to s 14 of the SRC Act in respect of the Applicant’s ‘aggravation of right shoulder subacromial bursitis’ sustained on 16 September 2015 (right shoulder condition) on the basis that this condition was contributed to, to a significant degree, by the Applicant’s employment with the Department.[21]
[21] R2, T29.
In late 2016 and early 2017, a number of progress certificates of capacity were issued in relation to the Applicant’s ‘recent diagnosis of chronic fatigue’.[22] The Applicant reported having experienced ‘severe physical and mental fatigue’ and ‘aches and pains’ since January 2016[23] and was certified unfit for work until 26 January 2017 due to this condition.[24]
[22] R2, T35, p 190.
[23] R2, T62, p 300.
[24] R2, T37, T40 and T62, p 300. The Applicant stopped working in October 2016 (see A2, p 70, read with transcript, p 40 [35]).
On 11 January 2017, the Applicant moved to Hobart.[25] The Applicant moved because her husband’s family reside their and because the climate in Western Australia exacerbated her chronic fatigue. At that time, the Applicant was of the view that her symptoms had improved in the cooler climate.[26]
[25] R2, T55, p 254.
[26] R2, T67, p 333.
At her assessment with Dr Loretta Reiter (Rheumatologist) on 21 April 2017, the Applicant reported pain symptoms in her right shoulder, right upper arm, right hip, her neck and her upper and lower back, was not sleeping well as a result and that she attributed the onset of her marked fatigue and reduced member in March 2016 to this.[27] Dr Reiter reported that the Applicant met the criteria for fibromyalgia but that there was no evidence in the literature to support the notion that this was caused by repetitive keying and mouse work and that her right shoulder bursitis was not a work-related condition.[28]
[27] R2, T49, p 235.
[28] R2, T49, p 237.
In a final medical certificate dated 6 September 2017, Dr Emma Carmichael (GP) recorded that the Applicant’s right shoulder required further treatment but that she was fit for pre-injury duties ‘from the shoulder perspective.’[29]
[29] R2, T54, p 252.
A further report by Dr Reiter dated 29 November 2017 following reassessment of the Applicant stated:[30]
[30] R2, T58, pp 269, 270, 271 and 272.
[The Applicant] meets the criteria for fibromyalgia.
…
She has had resolution of her right shoulder condition. However, she has ongoing symptoms that are due to her own constitutional, underlying condition of fibromyalgia, which is affecting her ability to function on a day to day basis and also her fitness for duty.
…
This diagnosis [of fibromyalgia] is in keeping with her GP’s diagnosis of chronic fatigue syndrome, as fibromyalgia and chronic fatigue syndrome are overlap syndromes with very similar signs and symptoms.
…
It is unlikely that her illness will resolve fully, but it is possible that in the next three months she will have an improvement in her symptoms, such that her level of functioning improves, with further treatment.
…
She will reach maximal medical improvement in three months.
On 13 December 2017, the Applicant experienced a fall, which resulted in facial bruising, a concussion, a fractured right elbow and a fractured head of radius on the left.[31] Dr Carmichael was of the view that the Applicant would be ready to return to work after 13 February 2018.[32]
[31] R2, T60, p 281 and T67, p 332.
[32] R2, T67, p 332.
On 19 January 2018, Dr Carmichael considered that the Applicant’s claim for her right shoulder injury had finalised and that she continued to suffer from symptoms of chronic fatigue.[33]
[33] R2, T67, p 333.
During the period 6 March 2018 to 21 March 2019, the Applicant was certified as unfit for work.[34]
[34] R2, T67.
On 24 July 2018, Dr Reiter considered the Applicant continued to meet the diagnostic criteria of fibromyalgia[35] and reported:[36]
[35] R2, T60, p 282.
[36] R2, T60, p 281, 283 and 285.
[The Applicant] continues to suffer with generalised pain, with it currently affecting her right shoulder girdle, right upper arm, her left and right hips, her left and right lower legs, her neck and her lower back. In addition, she has severe pervasive levels of fatigue and poor cognitive symptoms, as well as moderate levels of waking unrefreshed. She also has various other symptoms that are contributing to her symptom severity, including dry eyes, nervousness, blurred vision, numbness and tingling and a dry mouth.
…
Unfortunately, fibromyalgia is a chronic condition, but it does ‘wax and wane.’ There is evidence that certain treatment modalities may help with the symptoms and therefore allow a person to become more functional.
…
She has not tried all available treatment, so once she has tried all available treatments then I will be in a better position to comment overall in regards to her prognosis. Her illness is not likely to ever resolve fully.
…
She could be assessed for maximum medical improvement in six months if she trials all available treatment for the condition of fibromyalgia.
…
She may be fit to trial a return to work doing partial duties in six months.
Dr Juliet Tait (GP) wrote a letter dated 25 January 2019, confirming that during the several weeks prior to the appointment, the Applicant had been trialled on a number of medications to attempt to deal with her fibromyalgia and chronic fatigue syndrome, with Celebrex and Cymbalta proving ineffective or intolerable.[37] Dr Tait also wrote that the Applicant had a response to Tramadol, which she had then prescribed for her[38] and that the Applicant was unfit for work until 25 March 2019.[39]
[37] R2, T62, p 307.
[38] R2, T62, p 307.
[39] R2, T67, p 323.
Dr Reiter’s further report dated 22 March 2019 indicated that:[40]
[40] R2, T61, pp 289, 291 and 292.
She has increased generalised pain with it now affecting more areas that [sic] when I last reviewed her. She has pain affecting her right shoulder girdle, right upper arm, left lower arm, left and right buttocks, left and right upper legs, left and right lower legs, left and right jaw, her neck, as well as her lower back. In addition, she does continue to have pervasive levels of fatigue; waking unrefreshed; and poor cognitive symptoms (includes poor concentration and poor memory). She reported that she is having a conversation with her husband and often forgets mid-conversation where they were at. In addition, she has various other symptoms, much more than she had when she was last reviewed in July 2018, that includes muscle pain, muscle weakness, headaches, abdominal cramps, insomnia, depression, nausea, nervousness, blurred vision, dry mouth, itching, heartburn, oral ulcers, loss and change in taste, dry eyes, loss of appetite, sun sensitivity, easy bruising, hair loss and frequent urination.
…
The normal course of fibromyalgia is that it is indefinite and it fluctuates in intensity.
…
The effects of her illness are never likely to resolve.
…
She has reached maximum medical improvement as he had tried all available treatment.
…
There is no further treatment that I consider would improve her functional capacity, as she has tried all available treatment for fibromyalgia.
…
The employee will never be capable of resuming either full or partial duties.
On 28 June 2019, the Applicant was diagnosed with emphysema.
On 23 August 2019, the Applicant lodged a secondary claim for workers’ compensation in respect of ‘chronic fatigue/fibromyalgia,’ having first noticed her symptoms in January 2016, while at work.[41] The Applicant claimed that in her opinion, her chronic fatigue/fibromyalgia condition occurred as a result of ‘chronic pain leading to lack of sleep, leading to chronic fatigue, leading to fibromyalgia’ and relates to her claim with respect to her right shoulder condition as it is an ‘exacerbation of right arm bursitis causing pain and long-term lack of sleep.’[42]
[41] R2, T4, p 11.
[42] R2, T4, p 11.
On her claim form, the Applicant answered ‘no’ to the question ‘have you ever previously had any claims, injuries or symptoms involving this body part or a similar injury or disease.’[43]
[43] R2, T4, p 11.
Effective 21 December 2019, the Applicant retired from her employment with the Department on invalidity grounds.[44]
[44] R2, T69, p 340.
The Applicant, having moved to Queensland, attended Dr Zoltan Orovec (GP), who on 15 April 2020 noted that the Applicant’s GP in Tasmania had referred her for ‘osteopathy/ remedial massage/chiropractor/hydrotherapy, naturopathy with prescribed supplements and pain management medications.’[45] Dr Orovec gave the opinion that these referrals for management of her condition were reasonable.[46]
[45] R2, T70, p 343.
[46] R2, T70, p 343.
On 5 May 2020, the Respondent wrote to the Applicant to inform her of its intention to cease her entitlement to benefits under ss 16, 19, 29 and 39 of the SRC Act in respect of her right shoulder condition.[47] The Applicant was encouraged to provide any additional information for consideration prior to the final determination being made.[48]
[47] R2, T72, pp 353 to 361.
[48] R2, T72, p 353.
On the same date, a delegate of the Respondent denied liability to pay compensation pursuant to s 14 of the SRC Act in respect of the Applicant’s ‘chronic fatigue/fibromyalgia’ condition.[49] The delegate’s reasons for the determination included:[50]
The claimed condition is classified as a disease and to be eligible for compensation, the employee must suffer from an ailment or an aggravation of an ailment, to which her employment made a significant contribution.
…
…[T]here is no evidence to link [the Applicant’s] fibromyalgia condition to that of her compensable [right shoulder condition] for which liability was accepted.
…
…[T]here is no evidence explicitly linking the development of [the Applicant’s] fibromyalgia condition to that of her right shoulder injury, nor to any aspect of her workplace duties…[T]he available medical evidence confirmed that the right shoulder condition had resolved by mid-2017, meaning that any subsequent condition is therefore excluded from compensation…
…
Taking into account the medical evidence, I am not satisfied that [the Applicant’s] pain condition is a direct result of the compensable [right shoulder condition] suffered on 16 September 2015, or her employment in general.
[49] R2, T72, pp 351 and 362.
[50] R2, T71, pp 349 and 350.
On 31 May 2020, the Applicant requested a reconsideration of the determination dated 5 May 2020 denying liability pursuant to s 14 of the SRC Act in respect of her ‘chronic fatigue/fibromyalgia’ condition.[51]
[51] R2, T73.
On 5 June 2020, the Respondent determined the Applicant had no present entitlement to compensation s 16, 19, 29 and 39 of the SRC Act in respect of her right shoulder condition.[52]
[52] R2, T74.
On 12 June 2020, Ms Deanne Cameron (Assistant Director HR Support, Services Australia) responded to a request issued under s 71 of the SRC Act for information and documentation regarding the Applicant’s request for reconsideration dated 31 May 2020 of the determination dated 5 May 2020 denying liability pursuant to s 14 of the SRC Act in respect of her ‘chronic fatigue/fibromyalgia’ condition.[53] In her response, Ms Cameron referred to records indicating the Applicant claims to have suffered from chronic fatigue since 2011, following a hysterectomy and then developing the flu once she returned to work.[54] Ms Cameron wrote that the Applicant:[55]
[H]as not provided any medical evidence to support her statement in this section that she has ‘no doubt that the condition of Fibromyalgia could be an underlying developed [sic] from suffering long term pain and lack of sleep which in turn can only be directly attributed to the work injury & not any other cause.’ [The Applicant’s] assertion that her symptoms of Fibromyalgia ‘appeared & were diagnosed during the injury/recovery period’ is not sufficient to link the onset of this condition with [the Applicant’s] employment or her compensable bursitis condition.
[53] R2, T78.
[54] R2, T78.
[55] R2, T78.
On 30 June 2020, a delegate of the Respondent made the Reviewable Decision.[56] The delegate concurred with the finding of the delegate in the primary determination,[57] being that the Applicant’s compensable right shoulder condition did not significantly contribute to the development of her ‘chronic fatigue/fibromyalgia.’[58]
[56] R2, T79. See also [1] above.
[57] See [33] above.
[58] R2, T79, p 399.
On 21 July 2020, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the Reviewable Decision.[59] This application relates to the ‘chronic fatigue/fibromyalgia’ condition and was provided with matter number 2020/4381.
[59] R2, T1. The Applicant lodged her application in the Perth Registry of the Tribunal having moved from Hobart to Perth in July 2020 (See A9(a) and transcript, p 39 [45]).
On 22 July 2020, the Applicant requested a reconsideration of the determination dated 5 June 2020 in respect of the Applicant’s right shoulder condition.[60]
[60] R2, T80. See also R2, T81.
On 20 August 2020, the Respondent issued a reviewable decision, which affirmed the determination dated 5 June 2020 in respect of the Applicant’s right shoulder condition.[61]
[61] Section 37 T documents for application 2020/5242, ST9.
On 31 August 2020, the Applicant applied to the Tribunal for review of the reviewable decision dated 20 August 2020 in respect of the Applicant’s right shoulder condition.[62] This application was provided with matter number 2020/5242.
[62] Section 37 T documents for application 2020/5242, ST1.
The hearing
The two applications were dealt with together at a hearing held in Perth on 26 October 2021 and 27 October 2021. The Applicant was represented by Counsel, Mr Brian Nugawela. Mr Nugawela was instructed by Mr Kevin Wong from Soul Legal. The Respondent was represented by Counsel, Mr Ashley Burgess. Mr Burgess was instructed by Ms Naomi Adams, from HBA Legal. All parties appeared in person.
Following the hearing, the parties filed written closing submissions in accordance with Tribunal directions. This process concluded on 14 February 2022.
Scope of the claim
On 26 October 2021, being day one of the hearing:
(a)Application 2020/5242 was dismissed by consent pursuant to s 42A(1) of the Administrative Appeals Tribunal Act 1975 (Cth);[63] and
(b)The Applicant abandoned her claim for chronic fatigue syndrome.[64]
[63] See also transcript, p 17 at [10]-[15].
[64] Transcript, p 70 at [20].
Therefore, application 2020/4381 remains for consideration in relation to the Applicant’s claimed fibromyalgia condition.
The recusal application, hearing, decision, appeal and withdrawal of appeal
On 24 February 2022, the Applicant made an application requesting that I recuse myself from this matter on the ground of apprehended bias.
The Respondent opposed the Applicant’s recusal application.
The Tribunal issued directions to the parties to file and serve submissions in relation to the Applicant’s recusal application. Following numerous extensions of time granted to the Applicant, this process concluded on 16 February 2023.
On 22 February 2023, the recusal application was heard by way of an interlocutory hearing.
On 1 May 2023, I published a decision refusing the Applicant’s request that I recuse myself from hearing the present application (Recusal Decision).[65]
[65] See Abley and Comcare (Compensation) [2023] AATA 989 (1 May 2023).
On 29 May 2023, the Applicant applied to the Federal Court of Australia for review of the recusal decision and sought orders that:
(a)The Recusal Decision be quashed;
(b)Member Gallagher be recused from determining the present application on grounds of apprehended bias; and
(c)The Tribunal appoint a different Member to determine the present application,
and that the present application be stayed pending determination of the Applicant’s application to the Federal Court of Australia.[66]
[66] See Federal Court applications numbered WAD 119/2023 and WAD 120/2023.
On 27 September 2023, the Applicant filed its notices of withdrawal of application to the Federal Court. On the same day, the Federal Court issued orders confirming the Applicant’s applications had been discontinued.
On 2 October 2023, the Tribunal was advised of the Federal Court’s orders confirming the Applicant’s applications had been discontinued.
LEGISLATION
The Respondent’s liability to pay compensation is set out in s 14 of the SRC Act. Subsection 14(1) of the SRC Act provides that:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(Emphasis added.)
Subsection 5A of the SRC Act defines “injury” as follows:
(1) In this Act:
injury means:
(a) a disease suffered by an employee;
…
(Emphasis added.)
“Disease” is defined in s 5B of the SRC Act as follows:
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
(Emphasis added.)
EVIDENCE
The Tribunal received the following evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 4 May 2021 and filed on 6 May 2021 (A1);
(b)Applicant’s book of documents dated 7 October 2021 (A2);
(c)Applicant’s comments addressing issues raised by Respondent, undated, filed on 27 January 2021 (A3);
(d)Report of Dr Rob Will, Consultant Rheumatologist, dated 6 September 2021 (A4(a)), including:
(i)Letter of instruction to Dr Will from Soul Legal, dated 16 August 2021 (A4(b)); and
(ii)Curriculum vitae of Dr Will dated 18 September 2021, filed on 27 October 2021 (A4(c));
(e)Academic article, “A systematic review of precipitating physical and psychological traumatic events in the development of fibromyalgia,” by Yarden Yavne et al., Seminars in Arthritis and Rheumatism vol 48 (2018), 121-133 (A5);
(f)Report of Dr Jack Edelman, Rheumatologist, dated 22 February 2021 (A6(a)), including:
(i)Letter of instruction to Dr Edelman from Soul Legal, dated 8 January 2021 (A6(b));
(g)Supplementary report of Dr Edelman dated 24 March 2021 (A7(a)), including:
(i)Letter of instruction to Dr Edelman from Soul Legal, dated 10 March 2021 (A7(b));
(h)Curriculum vitae of Dr Edelman, undated, filed on 27 October 2021 (A8);
(i)Report of Dr Frank Cordova, GP, dated 15 May 2021 (A9(a)); including:
(i)Letter of instruction to Dr Cordova from Soul Legal, dated 6 May 2021 (A9(b)); and
(i)Curriculum vitae of Dr Cordova, undated, filed on 27 October 2021 (A9(c));
(j)WorkCover WA progress certificates of capacity issued by Dr Cordova and dated:
(i)10 November 2020;
(ii)7 December 2020;
(iii)1 February 2021; and
(iv)29 March 2021.
(together (A10));
(k)Respondent’s SFIC, dated and filed on 1 June 2021 (R1);
(l)Respondent’s Section 37 T documents (T1-T88, consisting of 461 pages) filed on 24 August 2020 (R2);
(m)Applicant’s records, Davey Medical Centre, various dates (extracted from Respondent’s tender bundle, pages 273 to 277 and pages 295 to 298) (R3);
(n)Supplementary Report of Dr Reiter dated 15 February 2021 (R4(a)), including:
(i)Letter of instruction to Dr Reiter from HBA Legal, dated 21 January 2021 (R4(b));
(o)Further supplementary report of Dr Reiter dated 1 July 2021 (R5(a)); including,
(i)Letter of instruction to Dr Reiter from HBA Legal, dated 22 June 2021 (R5(b));
(p)Further supplementary report of Dr Reiter dated 20 October 2021 (R6(a)); including,
(ii)Letter of instruction to Dr Reiter from HBA Legal, dated 14 October 2021 (R6(b)); and
(q)Curriculum vitae of Dr Reiter, undated, filed on 10 August 2021 (R7).
In accordance with the Tribunal’s directions, the parties filed additional documents following the hearing:
(a)Applicant’s written closing submissions (original and amended versions), both dated and filed on 7 January 2022;
(b)Respondent’s written closing submissions dated and filed on 31 January 2022; and
(c)Applicant’s written closing submissions in reply, dated and filed on 11 February 2022 (original and amended versions) and 14 February 2022 (further amended version).
The Tribunal heard oral evidence from:
(a)The Applicant;[67]
(b)Dr Will;[68]
(c)Dr Edelman;[69]
(d)Dr Cordova;[70] and
(e)Dr Reiter.[71]
[67] The Applicant gave evidence in person (transcript, pp 31 to 58) and her statements include those at A2, documents 31 to 34 (pp 76 to 114).
[68] Dr Will gave evidence in person (transcript, pp 75 to 104) and his reports and related documents appear at A4(a), A4(b)) and A4(c)).
[69] Dr Edelman gave evidence by telephone (transcript, pp 105 to 114) and his reports and related documents appear at A6(a), A6(b), A7(a), A7(b) and A8.
[70] Dr Cordova gave evidence in person (transcript, pp 125 to 129) and his reports and related documents appear at A9(a), A9(b), A9(c) and A10.
[71] Dr Reiter gave evidence by videoconference (transcript, pp 131 to 160) and her reports and related documents appear at R2, T49, T58, T60, T61, T70 (duplicate T49), R4(a), R4(b), R5(a), R5(b), R6(a), R6(b) and R7.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
Applicant’s evidence
When taken to the relevant record, the Applicant accepted that:
(a)While she does not recall, she accepts that for a period in 2011 she was suffering fatigue.[72]
(b)The reason for her visit to Dr Okechukwu Okezie (General Practitioner) on 6 February 2015 was ‘fatigue.’[73]
(c)Her continuing fatigue was the reason for her visit to Dr Okezie on 8 April 2015[74] and her blood tests later that day,[75] the report on which reads, ‘Clinical notes: Chronic fatigue, past risks.’[76]
(d)While she does not recall, she accepts the consultation records show that on with 10 April 2015, she discussed with Dr Okezie the results of the blood tests.[77]
[72] See [12] and [36] above, A3 and transcript, p 51 [30]-[40].
[73] R3 and transcript, p 48 [25]-[45] and p 49 [5].
[74] R3 and transcript, p 49 [5]-[30].
[75] R3 and transcript, p 49 [40]-[45].
[76] R3 and transcript, p 49 [45].
[77] R3, transcript, p 51 [5]-[10].
The Applicant gave evidence that the reason for her fatigue in 2015 was the national closure of the CRS, which she found ‘very tiring’,[78] in circumstances of a lengthy closure period (spanning from June 2014 to February 2015) where she was overworked and the organisation was understaffed.[79]
[78] A3, p 76 and transcript, p 47 [15]-[30] and p 52 [30]-[35].
[79] Transcript, p 52 [40]-[45] and p 53 [5]-[10].
The Applicant said that at the time she lodged her claim for chronic fatigue in 2019,[80] she did not know and could not recall that in 2015 she had suffered from fatigue for a period of many months.[81]
Medical evidence
[80] See [28] above.
[81] Transcript, p 52 [5]-[15].
Dr Rob Will, Consultant Rheumatologist
In his report dated 6 September 2021,[82] Dr Will diagnosed the Applicant with an initial onset of Occupational Overuse Pain Syndrome (RSI) of the right upper limb then spreading to more generalised pain which became total body pain (fibromyalgia) associated with chronic fatigue and brain fog. Dr Will considered the Applicant’s RSI and fibromyalgia to be a consequence of her work duties for Medicare.[83] Put another way, Dr Will stated:[84]
While there is clearly controversy surrounding trauma precipitating fibromyalgia…there are now many good studies in the literature…demonstrating that following physically traumatic events patients can develop fibromyalgia…
…
It is my view that [the Applicant’s] employment between Feb [sic] 2015 and October 2016 led to a significant degree to the development of an occupational use syndrome [85] of her right upper limb. This then led to the development of a more generalised fibromyalgia syndrome.[86]
…
…I disagree with [Dr Reiter’s] conclusion [in point 17 of her report dated 15 February 2021][87] that in [the Applicant’s] case this is simply and [sic] “intrinsic constitutional condition”…There is no evidence that [the Applicant] suffered a significant impairment[88] prior to 2015 when her symptoms began.
[82] A4(a), p 3 of report.
[83] A4(a), p 3 of report.
[84] A4(a), pp 4 and 5 of report.
[85] Being the repetitive over use of her right upper limb undertaking prolonged data entry without sufficient breaks (A4(a), p 4 of report).
[86] See also transcript, p 103 [35].
[87] See R4(a), pp 5 and 6 of report, where Dr Reiter states that the Applicant’s fibromyalgia condition has not been caused by anything specific, that it is simply an intrinsic constitutional condition, that it was not significantly contributed to by her former employment with Services Australia and did not develop as a result of symptoms from her right shoulder condition.
[88] ‘Significant impairment’ meaning “the symptoms of fibromyalgia” where the Applicant “became functionally a lot more unwell and had a lot more difficulty managing work and home duties” (Dr Will’s evidence, transcript, p 91 [30].
At the hearing, Dr Will added that in the Applicant’s case it seemed to be fairly clear that her RSI was a major trigger for the development of fibromyalgia and that there didn’t appear to be any other major psychosocial issues playing a significant role.[89]
[89] Transcript, p 87 [35].
When taken to the Applicant’s medical records from 2015,[90] Dr Will said it was possible that these presentations may have been the beginning of the Applicant’s fibromyalgia illness, where the symptomatology can wax and wane, and fluctuate in severity over a period of time,[91] but that the references to the Applicant’s reason for visit as ‘fatigue’[92] or ‘fatigue continues’[93] did not cause him to change his opinions.[94]
[90] See [61(b)], [61(c)] and [61(d)] above.
[91] Transcript, p 94 [30], p 100 [5] and p 103 [30].
[92] See [61(b)] above.
[93] See [61(b)] above.
[94] Transcript, p 99 [45] and p 100 [10].
Dr Will said that he did not refer to the Applicant’s shoulder injury in 2013 in his report because it was not something she had told him about.[95] Dr Will agreed that if he had been told of this, this may have affected his opinion,[96] although even if the Applicant had initially had a problem with her shoulder In 2013, it is unclear whether this subsided completely by April 2015.[97]
[95] Transcript, p 93 [5].
[96] Transcript, p 93 [10]-[15].
[97] Transcript, p 99 [25]-[30].
Similarly, Dr Will said that the Applicant’s bladder operation in 2015,[98] which was noted as not forming part of the history she provided to him, could have also possibly played some role in the development of the Applicant’s fibromyalgia condition,[99] although in the Applicant’s case there didn’t seem to be any major change in her symptomatology after that operation.[100]
[98] See [7] above.
[99] Transcript, p 94 [45] and p 95 [5].
[100] Transcript, p 97 [35].
During cross-examination, Dr Will agreed that it is the case that fibromyalgia can be without a cause and that current literature[101] would suggest that ‘probably about a third’ of fibromyalgia patients have an identifiable physical trauma or major psychological event as a trigger, whereas two thirds do not.[102]
[101] Meaning current as at the date of the hearing.
[102] Transcript, p 96 [35]-[40].
Dr Will also accepted the proposition that given the Applicant suffered fatigue symptoms prior to experiencing pain in her shoulder and right arm at work, it is the case that:[103]
MR BURGESS: …[R]eally we’re talking in the realm of possibilities here as to the causes; aren’t we?---
DR WILL: I agree. We’re talking about possibilities, yes.
[103] Transcript, p 96 [45] and p 97 [5].
Dr Jack Edelman, Rheumatologist
In his report dated 22 February 2021, Dr Edelman wrote:[104]
[The Applicant] injured her right shoulder and it was exacerbated in the workplace. The exacerbation of the shoulder interrupted her sleep cycle and she developed fibromyalgia. I cannot really state any more than this.
[104] A6(a), p 2 of report. Dr Edelman examined the Applicant on one occasion (transcript, p 108 [10]).
Dr Edelman’s supplementary report dated 24 March 2021 was prepared in response to a letter of instruction asking Dr Edelman to advise whether he agreed with the following proposition:[105]
If, as you have described, that [the Applicant’s] injured right shoulder was exacerbated in the workplace, the exacerbation of the shoulder interrupted her sleep cycle and she developed fibromyalgia, it can be concluded that it is likely that:
·fibromyalgia resulted from the shoulder exacerbation in the course of employment; and/or
·fibromyalgia was contributed to, to a significant degree, by her employment.
[105] A7(b).
Dr Edelman responded:[106]
…I would totally agree with your that fibromyalgia results for the shoulder exacerbation over the course of her employment and, obviously, was contributed to by [sic] a significant degree by her employment for the same reason.
The literature is difficult to piece together. However, every rheumatologist that I know accepts the fact that fibromyalgia is related to the interruption of the sleep cycle. The interruption can be caused by many factors and, in this lady’s case, her shoulder.
…
Usually, when I see a patient that fits this syndrome, they just as easily have a diagnosis of fibromyalgia.
I do not understand what “an intrinsic constitutional condition”[107] means. It would suggest that it is purely psychological and I have never found that to be the case in people with fibromyalgia[108]…
[106] A7(a).
[107] See R4(a), [64] above, R1, [60] and [83] and related fn 88 for context.
[108] At the hearing, Dr Edelman clarified that in his view and in any case, this matter would be in the realm of a psychiatrist rather than a rheumatologist (transcript, p 109 [45]).
At the hearing, Dr Edelman added:[109]
…fibromyalgia can arise from anything, anything that interrupts the sleep cycle. So, psychological stress can add to it but it’s not causing it. It’s the actual interruption to the sleep cycle. So, depends which way you [sic] want to make one and one make two. So, these people are under psychological stress but it’s their sleep cycle that’s being interrupted. So, some people under psychological stress don’t interrupt their sleep cycle, don’t develop fibromyalgia. In this lady, her shoulder was waking her up. Even though she may have had psychological stressors elsewhere, the shoulder was what was waking her up…
[109] Transcript, p 110 [15]-[20].
During cross-examination Dr Edelman elaborated on his evidence that in all diagnoses of fibromyalgia that he has seen, there is an interruption to the sleep cycle, although this is not the consensus of the medical literature:[110]
…I’m only going by what I have seen. And if you look at, depending on which rheumatologist you see, I’ve probably got to see about five or six fibromyalgia every week. So, I never go to the literature to read about it because I’m just going by the experience. And, I mean, the literature is very old because people don’t research fibromyalgia anymore…You are always going to find something different somewhere…
[110] Transcript, p 112 [35]-[45].
Dr Frank Cordova, General Practitioner
Dr Cordova confirmed that he first saw the Applicant on 10 November 2020, where he diagnosed her with right shoulder bursitis and impingement and fibromyalgia and provided her with her referral to Dr Edelman.[111]
[111] A9(a), p 3 of report and transcript, p 125 [40].
Dr Cordova offered the following explanation to his reported understanding that fibromyalgia is a constitutional condition:[112]
Some of us might have a gene for depression, but if we don’t meet certain circumstances that gene doesn’t express for you to experience depression. I believe the patient – because of my experience and because of the way she presents – she probably had a very subclinical fibromyalgia without even realising. But because of the work situations, and especially the with biopsychosocial factors, this constitutional subclinical condition workers’ compensation process became aggravated and really expressed itself to another level…
[112] A9(a), p 3 of report and transcript, pp 127 [25]-[30].
During re-examination, Dr Cordova reiterated that the factors of the Applicant’s work situation, the ‘extraneous typing’ and her involvement in the workers’ compensation process itself, ‘all bundled together’ contributed to the manifestation of the Applicant’s subclinical fibromyalgia, without which might not have become clinical.[113]
[113] Transcript, p 129 [5]-[15].
Dr Loretta Reiter, Rheumatologist
In her report dated 15 February 2021, Dr Reiter considered that the Applicant most likely had fibromyalgia in 2011[114] when she was labelled with the condition of chronic fatigue syndrome, and that her fibromyalgia was not significantly contributed to by her former employment with Services Australia.[115] Rather, Dr Reiter reported the Applicant’s fibromyalgia condition had not been caused by anything specific, is simply an intrinsic constitutional condition[116] and did not develop as a result of symptoms from her right shoulder condition.[117]
[114] Having noted from the Applicant’s medical file that the Applicant reported to have been suffering from significant fatigue at that time (R4(a), p 3 of report).
[115] R4(a), p 6 of report.
[116] R4(a), p 5 of report.
[117] R4(a), p 6 of report.
In her supplementary report dated 1 July 2021,[118] Dr Reiter stated that having reviewed Dr Edelman’s report dated 22 February 2021, she maintained her opinion that the Applicant did not develop fibromyalgia due to her right shoulder symptoms, referring to literary evidence as to how trauma does not cause fibromyalgia.[119] Dr Reiter reported that further to this, the Applicant’s sleep cycle supposedly being interrupted by a painful shoulder does not cause fibromyalgia.[120]
[118] R5(a).
[119] R5(a), p 2 of report.
[120] R5(a), pp 2 and 3 of report. See also Dr Reiter’s evidence at transcript, p 136 [35]-[40]: It’s not…essential that somebody has poor sleep, that they then have fibromyalgia. Because lots of us could probably say sometimes we don’t have a good sleep, and there are even people who suffer from insomnia who don’t develop fibromyalgia.
Dr Reiter also disagreed with Dr Cordova’s view that the Applicant’s fibromyalgia was aggravated by her employment with Services Australia, noting that Dr Cordova is not a rheumatologist or specialist physician and the Applicant’s fibromyalgia condition sits in the realm of rheumatology.[121]
[121] R5(a), p 3 of report.
Dr Reiter’s observations and opinions in her further supplementary report dated 20 October 2021 relevantly include:[122]
(a)Occupational Overuse Pain Syndrome (RSI) is a non-specific term for the presence of pain in a limb without actual pathology as a cause.
(b)The Applicant has always reported right shoulder pain, with her having a reduced range of her right shoulder range of motion when she reviewed her on 21 April 2017.[123] The Applicant did not report muscle fatigue.
(c)The Applicant has never suffered RSI.
(d)She could not identify any specific literature that supports Dr Will’s opinion that RSI can spread to more generalised pain which becomes total body pain such as fibromyalgia.
(e)Given that the Applicant reported to both Dr Will and herself that her fatigue commenced in 2016 and there is already evidence in early 2015 of her presenting with complaints of chronic fatigue to her general practitioner, it follows that her employment did not to a significant degree lead to the development of RSI to her right upper limb which then led to the development of a more generalised fibromyalgia syndrome.
(f)The presence of chronic fatigue would indicate that from April 2015,[124] the Applicant was already in the throes of fibromyalgia.[125]
[122] R6(a).
[123] See R2, T49.
[124] See transcript, p 159 [45].
[125] See also transcript, p 133 [15]-[25], p 134 [25]-[35] and p 156 [10]-[20].
At the hearing, Dr Reiter reiterated that the Applicant has had symptoms of fibromyalgia for many years before it was formally diagnosed in 2017.[126] Dr Reiter added that it did not at all surprise her given that (at para 82(f) above):[127]
(a)The Applicant might have been reporting to her physiotherapist that she had diffuse upper limb pain by December 2015;
(b)Such reporting would be part of the evolution of the Applicant’s condition; and
(c)This does not tell us anything about the causation of the Applicant’s fibromyalgia condition.
[126] Transcript, p 24 [5]).
[127] Transcript, p 159 [45] and p 160 [5].
CONSIDERATION
The issue in the present matter is whether the Applicant’s fibromyalgia condition was contributed to, to a significant degree, by the Applicant’s employment by the Commonwealth.
The Applicant’s position
The Applicant’s position is that her fibromyalgia condition was contributed to, to a significant degree, by her employment by the Commonwealth and can be summarised as follows:
(a)She suffered a work-related aggravation of her non-work-related right shoulder bursitis condition after transferring her work location in April 2015.[128]
(b)The Applicant’s work-related aggravation continued to cause her pain and long-term disrupted sleep, even after she ceased work in October 2016.[129]
(c)The chronic pain suffered from the work-related aggravation led to lack of sleep, leading to chronic fatigue, then developed into fibromyalgia.[130]
[128] The fact the Applicant suffered a work-related aggravation to her non work-related right shoulder bursitis condition is not in dispute. The Respondent accepted the aggravation as work-related and paid compensation accordingly. The Applicant ultimately agreed that the no present liability decision that was made in relation to this injury and the related application seeking review of that decision was dismissed by consent of the parties. See [44(a)] above.
[129] Applicant’s written closing submissions at [13].
[130] As set out in the Applicant’s claim form entitled “Lynette’s claim for secondary injury or disease,” R2, T4.
As the Applicant’s claim has been made on the basis that her fibromyalgia condition was secondary to her accepted shoulder aggravation suffered in 2015, her request that the Tribunal make findings on whether her work and/or her treatment in the workplace, right up to October 2016 contributed to the triggering, contraction and/or aggravation of her fibromyalgia (whether constitutional, intrinsic or work-related and whether a primary or secondary condition)[131] departs from this basis and hence will not be considered.[132]
[131] Applicant’s written closing submissions at [37]. The Applicant did not, at any point prior to the determination of her claim, seek to claim that her fibromyalgia was a primary condition.
[132] See also Respondent’s written closing submissions at [4.1] and [5.2] to [5.5] and Applicant’s written closing submissions in reply (as further amended) at [1] to [31].
In any event, the Applicant is reliant upon evidence from Dr Will, Dr Edelman and Dr Cordova in support of her position, and this evidence was premised and given on the basis that the Applicant’s work-related aggravation in 2015 was the triggering event leading to her fibromyalgia.[133]
[133] See also Respondent’s written closing submissions at [3.5] and [5.6].
The Respondent’s position
The Respondent’s position is that having regard to the totality of the evidence presented, the Tribunal cannot be satisfied, on the balance of probabilities (as distinct from possibilities),[134] that the Applicant’s fibromyalgia or aggravation of that condition was contributed to, to a significant degree, by her employment with the Commonwealth.[135]
[134] Respondent’s written closing submissions at [5.14].
[135] Respondent’s written closing submissions at [5.14].
The Respondent emphasised that its case answered the claim as put by the Applicant and her doctors, that the aggravation of the Applicant’s accepted bursitis condition after 13 April 2015 caused the Applicant to suffer from fibromyalgia.[136]
[136] Respondent’s written closing submissions at [4.1].
The Respondent relies on Dr Reiter’s opinion that the Applicant’s fibromyalgia is an intrinsic constitutional condition, which did not develop (and was not aggravated or amplified by) either as a result of her right shoulder condition or as a result of her former employment with the Department.
Weighing the evidence
Dr Cordova has been the Applicant’s treating GP since late 2020. Dr Cordova was of the view that the Applicant’s fibromyalgia was a constitutional condition, with her work situation, extraneous typing and especially her involvement in the workers’ compensation process, when taken together, contributing to the clinical manifestation of that condition.
Dr Will examined the Applicant on one occasion for the purpose of preparing his report. Dr Will gave the opinion that the Applicant developed RSI of the right upper limb, which he identified as a trauma that precipitated the development of a more generalised fibromyalgia syndrome.
The Respondent is of the view that Dr Will’s evidence presented a number of inconsistencies and was confusing and unconvincing, in relation to:[137]
(a)The date of onset of the Applicant’s RSI, which in his opinion led to her fibromyalgia, with these dates varying between his report and from answers given orally at hearing.
(b)The Applicant’s work duties and the onset of her right arm pain, again which he was of the view preceded the development of the Applicant’s fibromyalgia.
(c)The fact that his opinion was based on an incomplete history from the Applicant and that he had not been briefed with any of the summonsed records.
(d)His agreement that the Applicant’s presentations to her GP with fatigue in 2015 were relevant to determining the cause of her fibromyalgia[138] and that fibromyalgia can be without a cause.[139]
(e)His acceptance that his evidence as to the cause of the Applicant’s fibromyalgia was within the realm of possibilities rather than probabilities.[140]
[137] Respondent’s written closing submissions at [3.12] to [3.20]
[138] See [66] above.
[139] See [69] above.
[140] See [70] above.
The Applicant takes issue with the Respondent’s criticisms of Dr Will’s evidence, submitting there are no such inconsistencies regarding the date of onset of the Applicant’s RSI and noting further that the Respondent chose not to take these matters further with Dr Will at the time of the hearing.[141]
[141] Applicant’s written closing submissions in reply (as amended) at [34] to [36].
Rather, the Applicant emphasises Dr Will’s opinion that the Applicant’s work was a significant contributor to the development of her fibromyalgia.
The Applicant also notes that it is not part of her case that ‘the diagnosis of fibromyalgia has to proceed on the basis of scientific certainty.’[142]
[142] Applicant’s written closing submissions at [20(iii)].
The Tribunal reiterates that the issue before it is whether it can be satisfied, on the balance of probabilities that the Applicant’s fibromyalgia or aggravation of that condition was contributed to, to a significant degree, by her employment with the Commonwealth. That is, the balance of probabilities standard relates to causation, not diagnosis (which is not in question in any event).
Dr Edelman also examined the Applicant on one occasion for the purpose of preparing his report. Dr Edelman’s view is that patients with fibromyalgia tend to present with fatigue and an interrupted sleep cycle.
Indeed, Dr Edelman’s evidence was that the Applicant’s fibromyalgia condition was caused by an exacerbation of her shoulder injury following a transfer, which caused an interruption to her sleep, which in turn led to the development of her fibromyalgia.
While Dr Edelman accepted that psychological stress could add to fibromyalgia, he considers that it is the interruption to the sleep cycle (that, in this case, was in turn caused by the Applicant’s shoulder pain) that causes it. In this context the Applicant submitted that she considers it sufficient for present purposes that psychological stress and sleep disruption contribute to the development or aggravation of her fibromyalgia.[143]
[143] Applicant’s written closing submissions in reply (as amended) at [37].
Dr Edelman conceded that his opinion that fibromyalgia is caused by an interruption in a patient’s sleep cycle was not supported by the consensus of medical literature. Dr Edelman also noted his reliance on his experience and that the literature was very old because people don’t research fibromyalgia anymore.
Dr Reiter saw the Applicant on five occasions from 2017 to 2021 and was the only medical witness who reviewed the available documents produced under summons. This is relevant in circumstances where the Applicant failed to disclose to any of the expert witnesses that she suffered from chronic fatigue symptoms prior to suffering her right shoulder condition in September 2015, a matter which Dr Reiter was therefore reliably able to take into account.
Dr Reiter was of the opinion that while an event could hypothetically trigger a person’s fibromyalgia, this is in the sense of it ‘bringing on what’s already going to happen anyway’[144] and did not consider in the Applicant’s case that her right shoulder condition triggered her fibromyalgia.
[144] See transcript, p 133 at [10]-[15].
This is because Dr Reiter also considers that for a trigger to be relevant, it would need to occur prior to the development of symptoms and the Applicant was 'already in the throes of’ developing fibromyalgia when she presented to Dr Okezie in April 2015.
Therefore, the fact that the Applicant suffered fatigue in 2011 and presented to her GP with chronic and continuing fatigue in early 2015 – that is – the fact that the Applicant was already suffering from symptoms of fibromyalgia prior to suffering her right shoulder condition – means that in Dr Reiter’s view, logically and temporally, the Applicant’s claim that her right shoulder condition resulted in the development of her fibromyalgia condition cannot succeed.
The Tribunal also notes that in this regard, although Dr Will considered the Applicant’s RSI was a major trigger for the development of fibromyalgia, he accepted that the Applicant’s presentations to her GP with fatigue in 2015 may have been the beginning of the Applicant’s fibromyalgia illness.
Having considered the various opinions of the medical witnesses, the Tribunal prefers Dr Reiter’s evidence, for the following reasons:
(a)Dr Cordova is a GP and without specialty in rheumatology. Dr Cordova’s opinion that the Applicant’s involvement in the workers’ compensation process itself (among other things) contributed to the Applicant’s fibromyalgia does not support an argument of a significant work contribution as this process does not form part of the Applicant’s employment.
(b)Drs Will and Edelman saw the Applicant on one occasion, and for the purpose of preparing their medico-legal report. Neither doctor was provided with a complete set of medical records or a complete historical statement of the Applicant’s relevant symptoms and hence their opinions were premised on an incomplete and inaccurate history.
(c)Dr Will’s opinion, at its highest, serves only to identify the possible cause of the Applicant’s fibromyalgia. Again, the degree of satisfaction required in the present matter is the probable cause, that is whether the Tribunal can be satisfied, on the balance of probabilities that the Applicant’s fibromyalgia or aggravation of that condition was contributed to, to a significant degree, by her employment with the Commonwealth. In any event, Dr Will was of the view that the possible causes of the Applicant’s fibromyalgia were many and therefore Dr Will’s opinion does not, in the Tribunal’s view, serve to position the Applicant’s position in this regard.
(d)Dr Edelman’s view that fibromyalgia is caused by an interruption in a person’s sleep cycle was based on exclusively on his own experiences, without regard to the available literature. In any event, Drs Will and Reiter did not share in this opinion.
(e)Dr Reiter, however had the benefit of considering the Applicant’s documents produced under summons, including the Applicant’s GP records from 2015, which featured in the rationale of her opinion.
(f)Dr Reiter also had the benefit of seeing the Applicant on five occasions between 2017 and 2021.
For completeness:
(a)Even if the Tribunal had not specifically determined that it prefers Dr Reiter’s evidence over Drs Will, Edelman and Cordova, in any event, the Tribunal cannot be satisfied that there is sufficient evidence for it to otherwise conclude that the Applicant’s fibromyalgia condition was contributed to, to a significant degree, by the Applicant’s employment by the Commonwealth.
(b)The Applicant’s statement that Dr Reiter was close minded, dogmatic in her beliefs, inconsistent in her approach and the suggestion that she was biased in any respect[145] are without objective basis and do not require further consideration.
[145] Applicant’s written closing submissions in reply (as amended) at [40]-[45].
CONCLUSION
The Applicant claims that that her fibromyalgia condition was contributed to, to a significant degree, by her employment by the Commonwealth, secondary to her right shoulder condition.
The Tribunal finds that the Applicant suffered symptoms of fibromyalgia prior to suffering her right shoulder condition. Therefore, it logically follows that the Applicant’s right shoulder condition did not result in the development of her fibromyalgia condition.
Therefore, the Tribunal cannot be satisfied that the Applicant’s fibromyalgia condition or an aggravation of that condition was contributed to, to a significant degree, by the Applicant’s employment by the Commonwealth, pursuant to s 5B(1) of the SRC Act.
DECISION
The Reviewable Decision dated 30 June 2020, which denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of fibromyalgia claimed to have been sustained in January 2016, is affirmed.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
..............[Sgd].....................................
Associate
Dated: 23 May 2024
Date of hearing: 26 and 27 October 2021 Representative for the Applicant: Mr B Nugawela, instructed by Mr K Wong, Soul Legal Representative for the Respondent:
Mr A Burgess, instructed by Ms N Adams, HBA Legal
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