Carlisle and Comcare (Compensation)
[2019] AATA 4058
•3 October 2019
Carlisle and Comcare (Compensation) [2019] AATA 4058 (3 October 2019)
Division:GENERAL DIVISION
File Number: 2017/1893
Re:Kevin Carlisle
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member Richard West
Date:3 October 2019
Place:Melbourne
The Tribunal affirms the decision of the Senior Review Officer of the Respondent dated 15 February 2017 to affirm the determination of the Comcare Delegate dated 3 November 2016, to deny liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the Applicant’s fibromyalgia.
.....[sgd]............................................
Member Richard West
Catchwords
COMPENSATION – fibromyalgia – compensation for permanent impairment and non-economic loss – Comcare Guide does not apply to fibromyalgia – AMA5 – fibromyalgia is a chronic pain condition for the purpose of Principle 12 – exclusion of fibromyalgia from assessment under AMA5 – assessment of degree of impairment under ss 24(5) not possible – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)Cases
Adams v Tax Agents’ Board, Re (1977) 12 ALR 239
Brice v Comcare, Re [2007] AATA 1476
Broadhurst v Comcare (2010) 189 FCR 561
Comcare v Broadhurst (2011) 192 FCR 497
Comcare v Wuth, Re (2018) 159 ALD 1
Costello and Secretary, Department of Transport, Re (1979) 2 ALD 934
Riley and Comcare, Re (2011) 124 ALD 225
Roxas and Comcare, Re [2012] AATA 747Secondary Materials
Linda Cocchiarella and Gunnar B.J. Andersson, American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed, 2001)Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1, 2011)
REASONS FOR DECISION
Member Richard West
3 October 2019
BACKGROUND
The Applicant was born in September 1959.
In July 2000 he joined the Australian Protective Service, later the Australian Federal Police (AFP).
In September 2000 he was deployed to a Counter Terrorism First Response role and suffered post-traumatic stress disorder (PTSD) following a deployment to the Woomera Detention Centre, for which he took unpaid leave. He returned to duty with the AFP in February 2002.
On 14 May 2007 while on duty with the AFP, the Applicant twisted his right knee as he alighted from his patrol vehicle. He subsequently suffered a secondary psychological condition.
On 10 August 2007 the Respondent accepted liability for internal derangement of knee (right)[1].
[1] T5.
In April 2009 Dr Breedon opined that the Applicant had had a poor outcome from right knee arthroscopy surgery and had residual knee pain and stiffness causing stiff antalgic gait and abnormal posture/stance. He opined that the Applicant’s back pain may have been caused by strain to his lower back from his persistent abnormal antalgic gait and stance, both of which were directly related to his chronic knee pain.
On 24 April 2009 the Respondent accepted liability for lumbar sprain (unspecified) as secondary to the compensable knee condition[2].
[2] ST10.
On 1 September 2011, the Respondent accepted liability for adjustment reaction with depressed reaction as a result of the Applicant’s internal derangement of the knee (right) and lumbar sprain[3]. On 7 February 2012, the Respondent varied the determination dated 1 September 2011 to accept secondary compensable conditions of chronic pain syndrome, adjustment reaction with depressive reaction and aggravation of post-traumatic stress disorder[4].
[3] T13
[4] T15.
On 5 November 2012, the Tribunal issued a decision finding that the Applicant suffered chronic pain disorder, major depressive disorder, adjustment disorder with depressed mood, and related PTSD (which was aggravated by his compensable right knee and lower back injuries)[5].
[5] T22.
On 30 May 2013, Dr D Apostolopoulos, Rheumatology Registrar with Southern Health, reported that the Applicant had: ‘clinical features consistent with fibromyalgia and other central sensitisation syndromes and this seems to have initially begun in the setting of significant psychological and physical stressors.’ [6]
[6] T24.
On 22 January 2014, the Respondent issued a determination accepting liability for a secondary condition of myalgia and myositis, which was later amended from myalgia and myositis to fibromyalgia[7]. On 8 April 2014, the Respondent affirmed that it accepted liability for fibromyalgia[8].
[7] T42.
[8] T46.
On 12 August 2016, the Respondent issued a determination awarding the Applicant a 15% permanent impairment for major depressive disorder[9]. On 13 September 2016, the Respondent issued a reconsideration decision, varying the determination dated 12 August 2016 to allow a 25% permanent impairment in respect of major depressive disorder[10].
[9] ST11.
[10] ST12.
In September 2016, the Applicant lodged a permanent impairment claim for fibromyalgia[11]. On 3 November 2016, the Respondent issued a determination denying liability[12]. On 15 February 2017, the Respondent issued a reconsideration decision affirming the determination dated 3 November 2016 on the basis that the Applicant was assessed as suffering from an impairment of 3% under the American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed, 2001) (AMA Guide) (i.e. less than the 10% threshold required by s 24(7) of the SRC Act)[13].
[11] T81.
[12] T88.
[13] T103.
MATTER FOR REVIEW
The matter for review by the Tribunal pursuant to section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) is the decision of the Senior Review Officer of the Respondent dated 15 February 2017 to affirm the determination of the Comcare Delegate dated 3 November 2016, to deny liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in respect of the Applicant’s fibromyalgia.
EVIDENCE
In conducting the review the Tribunal has had regard to:
(a)each of the documents produced to the Tribunal by the Respondent pursuant to sections 37 and 38AA of the AAT Act (the T-Documents);
(b)the oral evidence of:
(i)the Applicant;
(ii)Associate Professor Lynden Roberts;
(iii)Associate Professor Romas; and
(iv)Dr Tony Michael Kostos;
(c)the following documents tendered by the Applicant:
(i)Applicant’s opening statement (Exhibit A1);
(ii)Report of Associate Professor Lynden Roberts dated 11 August 2017 (Exhibit A2);
(iii)Report of Associate Professor Romas dated 20 July 2018 (Exhibit A3);
(iv)Clinical note of Dr Vahid Master (Exhibit A4);
(v)Seminar Report (Exhibit A5);
(vi)Report of Dr LeMarshall dated 17 June 2013 (Exhibit A6);
(vii)Email correspondence between the Applicant and the Respondent’s Representative (Exhibit A7);
(viii)Report of Dr Michael Gingold dated 16 June 2014 (Exhibit A8);
(ix)Bundle of articles (Exhibit A9);
(x)Report of Dr Nigel Strauss dated 6 July 2002 (Exhibit A10);
(xi)ICD Listing for Fibromyalgia (Exhibit A11);
(xii)Report of Dr Sarah Nguyen dated 22 September 2009 (Exhibit A12); and
(d)the following documents tendered by the Respondent:
(i)email dated 5 June 2016 from the Applicant to the Respondent and attached application and supporting documents (Exhibit R1);
(ii)Applicant’s written notation to the report of Dr Tony Michael Kostos dated 2 March 2018 (Exhibit R2); and
(iii)Report of Dr Tony Michael Kostos dated 2 March 2018 (Exhibit R3).
ANALYSIS
Impairment
It is well-established that the Applicant suffers from fibromyalgia. On 8 April 2014 the Respondent affirmed that it accepted liability for fibromyalgia. Professor Roberts stated in his report of 20 September 2016[14] that there is no doubt that the Applicant has fibromyalgia. Dr Kostos opined that the Applicant ‘has a chronic pain syndrome which would fall into the fibromyalgia spectrum of conditions’. Professor Romas diagnosed fibromyalgia on 20 July 2018.
[14] T88.
Section 24(1) of the SRC Act provides that, where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury[15]. The factors to be considered in assessing whether an impairment is permanent are set out in section 24(2) of the SRC Act.
Is the Applicant’s Impairment Permanent?
Section 24(2) of the SRC Act provides that, for the purpose of determining whether an impairment is permanent, regard is to be had to; the duration of the impairment, the likelihood of improvement in the employee’s condition, whether the employee has undertaken all reasonable rehabilitative treatment and any other relevant matters.
The Applicant’s fibromyalgia condition is of long standing. It was diagnosed by Dr D Apostolopoulos, Rheumatology Registrar with Southern Health, in May 2013 and by Dr D Lewis in November 2013.
Professor Roberts stated in his report of 20 September 2016, that the Applicant was suffering from fibromyalgia with resulting impairments in the nature of fatigue, headaches, digestive problems, lower extremity impairment (affected gait, weakness and instability), bilateral upper extremity impairments (loss of digital dexterity and restricted lifting), fluctuating memory and sexual dysfunction. He said that the Applicant had a prolonged period (years) of best-evidence treatment for his condition, which included the range of available medications, regular low-graded, low-impact aerobic exercise and stress management strategies[16]. He opined that the Applicant’s condition had not changed for many years and it was unlikely to change in the foreseeable future.
[16] See also the report of Dr Gingold dated 16 June 2014 – Exhibit A8, and Dr Lemarshall dated 17 June 2013 – Exhibit A6.
The Applicant confirmed in his evidence that Professor Robert’s assessment of his condition was accurate;[17] and that his symptoms as reported by Professor Roberts continued to persist.
[17] Transcript p. 17.44-18.01.
Dr Kostos, who disputed that the cause of the Applicant’s fibromyalgia was work-related, nevertheless effectively conceded that it was a permanent condition. He stated that in his opinion the Applicant ‘is untreatable’. Under cross-examination Dr Kostos was reluctant, perhaps unreasonably so, to concede that the Applicant’s condition is permanent. When pressed he did say: ‘Well, it may be permanent but, as I said, in the absence of any tissue damage, we can’t say that it’s permanent’[18]. Dr Kostos also acknowledged that the Applicant had been treated for the condition but the treatment had not improved the condition.
[18] Transcript p.182.25.
Professor Romas diagnosed the Applicant as suffering from a chronic pain syndrome which he classified as fibromyalgia. He found that the condition caused the Applicant to suffer impairments in the nature of chronic non-specific fatigue, episodic migraines, upper extremity non-specific pain and erectile dysfunction. He concluded that ‘the prognosis of his medical conditions is that they will persist’[19]. He also noted that the Applicant had a lower back dysfunction and persistent right knee pain due to unresolved soft tissue injuries.
[19] Exhibit A3.
On the basis of the evidence, and having regard to the factors set out in section 24(2) of the SRC Act, the Tribunal finds that, from 15 February 2017 and continuing, the Applicant has a permanent impairment with symptoms including chronic non-specific fatigue, episodic migraines, upper extremity non-specific pain and erectile dysfunction as a result of an injury, namely fibromyalgia, to which his employment contributed to a significant degree.
The amount of compensation to be paid in respect of a permanent impairment is a percentage of the maximum amount as equals the degree of impairment (expressed as a percentage) determined under s 24(5) of the SRC Act.
Assessment of Degree of Impairment
Section 24(5) of the SRC Act provides that Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide. The approved Guide is currently the Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 (Comcare Guide). The Comcare Guide effectively incorporates the AMA Guide[20] as an alternative method of assessment.
[20] Comcare v Broadhurst (2011) 192 FCR 497, 512 established that it is the fifth edition of the AMA Guide that is incorporated into the Comcare Guide by Principle 12 of the Comcare Guide.
Comcare Guide
The Comcare Guide sets out, in Part 1, guidelines for the assessment of the degree of permanent impairment resulting from injuries to various bodily parts and systems. The tables identify various symptoms of injury to the bodily systems and rates their level of impairment. Fibromyalgia and other chronic pain conditions are not listed and there are no tables relevant to the conditions themselves.
Professor Roberts acknowledged in his report of 20 September 2016[21] that neither the Comcare Guide nor the AMA Guide list fibromyalgia as a condition. He conceded in his oral evidence that the Comcare Guide does not provide for the assessment of fibromyalgia[22]. In his report of 11 August 2017, he stated that:
Fibromyalgia is not dealt with in Guide 2.1 [the Comcare Guide] or AMA 5 Guide [the AMA Guide] for reasons known only to the writers but presumably relate to these Guides being out of date (AMA 5 published 17 years ago and Guide 2.1 is based on AMA 5), as well as the principle on which these guides are based being to use objective rather than subjective data to measure impairment.[23]
[21] T83 pg 407.
[22] Transcript 84.30.
[23] Exhibit A2
Nevertheless, Professor Roberts purported to assess the degree of the Applicant’s impairment by reference to the Comcare Guide. He stated that:
It would be arbitrary and capricious to not assess an impairment for a compensable medical condition merely because medical knowledge has advanced prior to the guides being updated. In these circumstances, the usual and reasonable approach to assess the worker’s WPI is to assign impairments for each of the affected body systems and combine [them][24].
[24] T83 at p.408
Professor Roberts clarified his approach in his oral evidence. He stated that he made an assessment of the degree of the Applicant’s impairment because he had formed the view that the Guides obliged him to make an assessment. He said, in relation to his assessment of the Applicant’s pain condition:
…I was doing my best to provide an impairment assessment for a condition that's really not dealt with in either guide and to do that I've tried to find the most analogous example of where an ADL is significantly impaired and a table that would best fit with that...[25]
[25] Transcript 84.28
When asked whether, if he hadn’t formed the view that the guides required him to make an assessment, he would have provided any assessment, he replied: ‘It wouldn't have been possible, no’.
Professor Roberts’ overall assessment that the Applicant had a whole person impairment of 59% was based on an aggregation of a number of factors using the combined values of various tables. He assessed fatigue at 10% by reference to Table 8.5, which relates to chronic hepatitis and parenchymal liver disease. He assessed headaches at 20% under Table 13.1 of Part 2 of the Comcare Guide, which applies to claims by members of the Australian Defence Force in relation to injuries which occurred during defence service before 1 July 2004[26]. He assigned a 20% impairment for lower extremity impairment by reference to Table 9.7. He assigned a further 20% impairment for upper extremity impairment by reference to Table 9.14 which may be used for the assessment of upper extremity impairment arising from spinal cord damage. He also added 10% impairment for dysfunction of the reproductive system without reference to any specific table. The Applicant was not diagnosed with any of the conditions relevant to the Tables used by Professor Roberts. In essence Professor Roberts arrived at his assessment, not by applying the Comcare Guide, but rather by identifying analogous ratings for the symptoms of the Applicant’s fibromyalgia in certain Tables in the Comcare Guide. He stated, in his supplementary report of 11 August 2017,[27] his view that when a table does not exist that is relevant for rating the specific bodily system; the table that is closest to rating the impairment should be used.
[26] Comcare Guide at page IX
[27] Exhibit A2.
The Tribunal appreciates that Professor Roberts was concerned that the Applicant not be denied compensation for his impairment because of the failure of the Comcare Guide to provide a means of assessing the degree of his impairment, but his approach ignores the statutory requirements of sections 24(5) and 28(4) of the SRC Act. The SRC Act does not permit a medical assessor to develop their own method of assessment. The SRC Act specifically states that an impairment must be assessed using the provisions of the approved guides. The Comcare Guide is structured on the basis of specific bodily systems and relies on the use of objective evidence. Fibromyalgia, of its nature, is not amenable to objective assessment. It is characterised by the existence of pain without an underlying pathology.
In addition, in his report of 11 August 2017, Professor Roberts incorporates the principles of clinical judgement referred to in Chapter 1.5 of the AMA Guide to justify his approach to the Comcare Guide to assess the Applicant’s impairment. Principle 12 clearly states that the AMA Guide is only to be used if the employee’s impairment is of a kind that cannot be assessed in accordance with Part 1 of the Comcare Guide. Thus the principles in Chapter 1.5 of the AMA Guide are principles to be applied when assessing under the AMA Guide, and are not applicable to the Comcare Guide. In addition, resort to clinical judgement in the absence of objective and scientifically based data is to be considered having regard to the statement in Chapter 1.5 that:
Subjective concerns, including fatigue, difficulty in concentrating, and pain, when not accompanied by demonstrable clinical signs or other independent, measurable abnormalities, are generally not given separate impairment ratings.
In his report of 20 July 2018,[28] Professor Romas assessed the Applicant’s impairment in accordance with both the Comcare Guide and the AMA Guide, although he did not make clear how or why each of the Guides was to apply in relation to each of the conditions he identified. Professor Romas attributed a 10% whole person impairment to the Applicant’s right knee condition under Table 9.7 of the Comcare Guide, an 8% whole person impairment in respect of an organic injury of the lumbar spine under Table 9.17 of the Comcare Guide and a 10% whole person impairment attributable to migraine headaches under Table 13.1 of Part 2 of the Comcare Guide (which applies to Defence-related claims). He declined to give an assessment for fatigue, upper extremity symptoms or reproductive dysfunction because of the absence of organic factors.
[28] Exhibit A3.
Professor Romas did not assess the degree of impairment resulting from the Applicant’s fibromyalgia. He focussed his assessment on the organic conditions of the Applicant’s right knee, lumbar spine and migraine conditions, not the impairment resulting from the non-organic nature of fibromyalgia. For this reason the Tribunal does not accept Professor Romas’ assessment.
The Tribunal notes the decision in Re Brice v Comcare,[29] in which the Tribunal assessed the degree of the Applicant’s impairment from fibromyalgia using Table 5.1 of the Comcare Guide. Table 5.1 deals with psychiatric conditions. The Tribunal noted in Brice that fibromyalgia is a difficult condition to categorise as it has both psychiatric and physiological components. The Tribunal in that case was satisfied that Table 5.1 provided the best means to ascribe an impairment rating in the circumstances. In Brice, the Tribunal seems to have been influenced in its assessment by its conclusion that fibromyalgia was a sequelae to a psychological condition, namely stress and anxiety.
[29] [2007] AATA 1476.
In this case the Tribunal is not persuaded to adopt the approach taken in Brice. For reasons discussed at paragraphs [42]–[47] below, the Tribunal is not satisfied that fibromyalgia is a psychiatric condition or that Table 5.1 is appropriate for the assessment of the condition. The notes to Table 5.1 refer to psychoses, neuroses, personality disorders and other diagnosable conditions. It requires diagnoses to be made at optimum medication when the condition is reasonably stable. Each level of assessment is based on the need for supervision and assistance of a prescribed kind and by a suitable person, being a person with necessary qualifications, experience and skills, including medical practitioners, nursing staff and clinical psychologists. There is no medical evidence presented in this case that supports a conclusion that fibromyalgia can be assessed under Table 5.1. In fact, neither Professor Roberts nor Professor Romas referred to Table 5.1 in their assessments of the Applicant’s condition under the Comcare Guide. Professor Roberts acknowledged that fibromyalgia is not a condition dealt with under any of the Tables. His assessment was made by identifying conditions analogous to the symptoms of the Applicant’s condition.
The Tribunal is satisfied[30] that the Applicant’s impairment cannot be assessed using the Comcare Guide and it rejects the assessments of Professor Roberts and Professor Romas.
[30] See also Downes J in Comcare v Broadhurst (2011) 192 FCR 497, 502.
AMA Guide
Principle 12 of the Principles for Assessment in Part 1 of the Comcare Guide states that ‘in the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of this guide, the assessment is to be made under the’ AMA Guide. However, Principle 12 goes on to state that an assessment is not to be made using the AMA Guide for, amongst other things, mental and behavioural impairments (psychiatric conditions) and chronic pain conditions, except in the case of migraine or tension headaches.
Is fibromyalgia a mental or behavioural impairment?
Each of the medical expert witnesses recognised that there are psychological aspects involved with chronic pain and that the causes of fibromyalgia and its treatment are the subject of evolving medical opinion.
Professor Romas gave evidence that fibromyalgia is a rheumatic condition and not a psychiatric condition.
He was directly asked:
...the World Health Organisation categorises fibromyalgia as a rheumatic condition, it’s the most recognised authority for classifying diseases and it lists it under the ICD10 as M79.7. Firstly, would you agree with that and would you categorise fibromyalgia as a rheumatic condition or a psychiatric condition?
Professor Romas responded:
Well, there is a diversity of opinion about this. It is - most of the research - most of the descriptions and research and even the medical label of fibromyalgia has come out of the rheumatology literature and so rheumatology owns, if you like, the diagnostic label “fibromyalgia” and that has been the case since, you know, the 70s - 1970 and it still owns the label “fibromyalgia and you are correct, the ICD designation and there’s no question that it’s a rheumatic condition in that it presents with musculoskeletal symptoms and musculoskeletal disability as well as other symptoms[31].
[31] Transcript 94.12.
Dr Kostos was asked: ‘What do you say about what you believe fibromyalgia to be?’ He replied:
Well, I don’t think that it would be generally mainstream thought that fibromyalgia is a pure psychiatric condition. What I tend to say is that it’s related to psychological and social factors. There’s certain personality traits we see in patients with fibromyalgia, particularly obsessive personality traits. It also relates to previous life experiences, attitudes and beliefs and how people cope with anxiety and stress. Now, some of them - you know, there are psychological factors in some of the issues that I’ve raised but some aren’t.
He was then asked: ‘And the ones that aren’t, that are not psychological issues, which parts of the descriptor you just provided would fall in to the---’
He responded: ‘---Well, you certainly can’t say that your inherited personality traits are psychologically based - psychiatrically based[32].’
[32] Transcript 176.12.
Professor Roberts explained in some detail in his evidence that there is a difference of opinion among medical specialists regarding the nature of fibromyalgia. He summed up his opinion as follows: ‘I think it’d be fair to say that there is some debate about the best diagnostic label of fibromyalgia, however I personally would categorise it as a rheumatic condition rather than a psychiatric condition[33].’
[33] Transcript 67.45.
While the Tribunal accepts that there are psychological aspects to the condition, it is not satisfied on the evidence that fibromyalgia is a mental or behavioural impairment.
Is fibromyalgia a chronic pain condition?
The expression ‘chronic pain conditions’ is used in Principle 12 as a general descriptive term. This is evident from the use of the plural conditions, rather than the singular condition. It is also consistent with the other excluded conditions in Principle 12 namely, mental and behavioural impairments, impairments of the visual system and hearing impairment. Each are general descriptors rather than a reference to a specific condition. Used in this general sense the term chronic pain condition applies to various conditions characterised by the experience of chronic pain.
The weight of medical evidence in this case clearly indicates that fibromyalgia is a chronic pain condition.
Professor Romas was asked the direct question: ‘So you could, in a general sense, be happy to describe fibromyalgia as a chronic pain condition?’ He replied: ‘Absolutely.[34]’
[34] Transcript 112.15.
Dr Kostos, in his report of 2 March 2018,[35] stated that fibromyalgia ‘is one type of chronic pain syndrome. A chronic pain condition is simply a descriptive term’.
[35] Exhibit R3.
In his report of 4 November 2013 Dr Lewis[36] stated that the Applicant has a chronic pain problem which is best defined as a central sensitisation pain disorder. Fibromyalgia is a sub-set of this diagnostic category of central sensitisation. This statement effectively includes fibromyalgia in the general description of a chronic pain problem.
[36] T31 at p.123
Professor Roberts gave evidence that chronic pain and fibromyalgia are separate entities and that current classification systems have fibromyalgia named separately[37]. However, his evidence was somewhat equivocal. When asked how contentious is the view of other rheumatologists who have classed fibromyalgia as a subspecies of the chronic pain syndrome, or syndromes, he replied:
…so whatever classification system you come up with you have to deal with the fact that fibromyalgia appears to - to be a kind of unique group of symptoms in the way it presents, and it’s a fairly common problem that we see, so we have to have a - a name for whatever that entity is. And so whether you put that under a heading of chronic pain or not, it seems to me that’s been difficult for the classification people to - to kind of work out. All I can do really is look at the way it’s been classified by, you know, our international expert colleagues, and sort of follow - follow their lead, if you like. I don’t have any particular strong feelings about whether it falls, as I would say fairly arbitrarily, under a kind of a label of chronic pain, or it sits, you know, somewhere separately to that. It just seems to me that - that it is its own entity and it’s got to be put somewhere[38].
[37] See T88 at p.408.
[38] Transcript 73.05.
Professor Roberts acknowledged that 5 to 10 years ago, when the relevant parts of the Guides were first compiled[39], it was more commonly accepted that fibromyalgia was part of chronic pain conditions[40].
[39] The second edition which applied in relation to claims under ss 24, 25 and 27 was effective on and from 1 March 2006.
[40] Transcript 86.46.
Having regard to this evidence, the Tribunal is satisfied that fibromyalgia is a chronic pain condition within the meaning of Principle 12.
Application of the AMA Guide
On a plain reading of Principle 12 the exclusion of chronic pain conditions from assessment under the AMA Guide prevents the Tribunal from making an assessment of the degree of the Applicant’s impairment under the AMA Guide.
However, Downes J in Comcare v Broadhurst[41] said:
The precise provision of cl 12 is that “[a]n assessment is not to be made using the [AMA guide] for... chronic pain conditions...”. Subject to examining the provisions of AMA5, that provision may only preclude the use of that part of the AMA guide which addresses chronic pain as a condition. AMA5 contains a chapter relating to Pain, including chronic pain. It is to be noted that the Comcare Guide does not contain any provision for the assessment of chronic pain as such. The Comcare Guide deals separately with different body systems such as the Cardiovascular System and the Musculoskeletal System and guides the assessment of impairment by reference to these systems rather than by reference to symptoms. There are provisions dealing with pain, such as Complex Regional Pain Syndromes, but there is no separate section dealing only with pain. AMA5, on the other hand, has a Chapter entitled Pain. It contains protocols, figures and tables for the assessment of pain. However, the Chapter emphasises that it should not be used “to rate pain-related impairment for any condition that can be adequately rated on the basis of the body and organ impairment rating systems given in other chapters of the Guides” (page 571). Other parts of the Chapter repeat this restriction.
In these circumstances I do not doubt that the prohibition of the use of the AMA guide in cases of chronic pain conditions, consistently with the absence of such a means of assessment in the AMA Guide and with the restriction on the use of such a means in the AMA guide, simply operates to preclude the use of the Chapter of the AMA guide entitled Pain. Such a construction is wholly consistent with the words of cl 12 and with an intention, which can be imputed to it, that it should not leave chronic pain conditions without any identified means of assessment.
[41] (2011) 192 FCR 497, 502, 503.
This aspect of the decision of Downes J is properly to be regarded as obiter, that is, a mere observation. His Honour’s views of Principle 12 were not adopted by the majority in the case[42] who stated:
Whatever merit the argument advanced on behalf of Comcare may ultimately have, in the circumstances of the present case it is an argument which it is respectfully considered should first be resolved by the Tribunal. The application of the exclusion in Principle 12 in respect to “chronic pain” will depend upon how that phrase has been employed in the Comcare Guide and that meaning may well involve mixed questions of both fact and law. Even if the argument may ultimately be found not to depend upon any question of fact, it is an argument in respect to which this Court would be considerably assisted by the conclusions of the Tribunal.
It may further be noted that no question of law in respect to the Tribunal’s consideration as to “chronic pain” was raised in the Notice of Appeal from the decision of the Tribunal or in any Notice of Appeal from the decision of the primary Judge[43].
[42] Tracey and Flick JJ.
[43] See pg 514.
In considering the view of Downes J, the Tribunal notes the qualified wording of the following sentence: ‘Subject to examining the provisions of AMA5, that provision may only preclude the use of that part of the AMA guide which addresses chronic pain as a condition’ (emphasis added).
This statement appears to indicate that His Honour was expressing a qualified view. The Tribunal notes that the issue had not been raised as a question of law in any of the appeal notices.
In addition, His Honour’s statement that ‘…an intention, which can be imputed to it, that it should not leave chronic pain conditions without any identified means of assessment’ (emphasis added), is difficult to reconcile with the wording of Principle 12. The statement suggests that a specific exclusion for chronic pain conditions in Principle 12 could give rise to an imputation that Principle 12 is intended not to exclude such conditions from assessment. On its face, Principle 12 purports to completely exclude chronic pain conditions from assessment under the AMA Guide (an ‘assessment is not to be made’).
Notwithstanding the plain wording of Principle 12, the Applicant argued that the Tribunal is compelled to make an assessment of the degree of the Applicant’s impairment under the AMA Guide. Otherwise, he will be denied his right to compensation under section 24(1) The Applicant cited the following passage from the Tribunal’s decision in Re Roxas and Comcare[44]
If recourse cannot be had to the AMA Guides because of the application of Principle 12, where is Ms Roxasleft? Some means must be found because, subject to s 24(7), the respondent is liable to compensate her for her permanent impairment. The fact that neither guide provides a means by which to assess percentage impairment cannot alter the requirements or operation of the SRC Act: Broadhurst per Buchanan J at [16].
[44] [2012] AATA 747 at [117].
The decision of Buchanan J in Broadhurst[45] did not concern the exclusion in Principle 12. In summary, the court in that case concluded that Table 9.17 of the Comcare Guide, by providing only fixed percentages of 8% and 13%, did not allow for an evaluation of the degree of an impairment between 8 and 13%. In those circumstances, the court said the Applicant’s impairment could not be assessed under the Comcare Guide but that resort could be had to the AMA Guide.
[45] Broadhurst v Comcare (2010) 189 FCR 561.
The Tribunal in Roxas also had regard to the agreed approach endorsed by the Federal Court in hearing an appeal from the earlier Tribunal decision in Re Riley and Comcare[46]. In that case the impairment was the generalised condition of sexual dysfunction for which there was no applicable table under either the Comcare Guide or the AMA Guide. On appeal the parties accepted, and the Court approved, an approach whereby the degree of impairment was to be assessed by medical experts using their clinical judgement under Chapter 1 of the AMA Guide[47].
[46] (2011) 124 ALD 225.
[47] Discussed at [108] of Roxas.
It is important to note that, like Broadhurst, Riley was not concerned with the operation of the exclusion for chronic pain conditions in Principle 12 of the Comcare Guide. In both of those cases the degree of impairment could be assessed by the direct application of the Guides. In Broadhurst, the assessment was made under tables in the AMA Guide, the Tribunal having found that the Comcare Guide did not enable an assessment. In Riley, the Court accepted that the assessment could be made using clinical judgement under Chapter 1 of the AMA Guide, having found that the tables in both Guides did not enable an assessment. In the present case, the issue is whether the exclusion in Principle 12 prevents the application of the AMA Guide completely for fibromyalgia.
In Broadhurst, Buchanan J seemed to indicate that the Tribunal may ignore the requirements of s 24(4), that the amount of compensation be assessed on the basis of the degree of impairment determined under s 24(5) and therefore in accordance with the Guides. He stated[48]:
Regrettably, the Comcare Guide has usually not been amended in response to any judicial finding of deficiency or lack of fidelity to the SRC Act. Resolution of any inconsistencies between the provisions of the Comcare Guide and the requirements of the SRC Act therefore has to be accomplished by recognising that the Comcare Guide cannot alter the requirements or operation of the SRC Act. It must, if it is possible to do so, be given a construction that is consistent with a proper construction of the SRC Act. If that is not possible it must, to the extent necessary, be treated as unauthorised.
[48] Broadhurst v Comcare (2010) 189 FCR 561, 565.
The Tribunal should not lightly treat a legislative instrument as being unauthorised. While the Courts have traditionally exercised their judicial power to declare delegated legislation invalid (or unauthorised), there has been reluctance on the part of administrative bodies to do so[49]. The Tribunal noted in Re Costello and Secretary, Department of Transport[50]:
…this Tribunal can give no binding and authoritative decision on such a question (cf Huddart Parker Pty Ltd v Moorhead [1909] HCA 36; (1909) 8 CLR 330 at p357 per Griffith CJ). If it be the case that the Tribunal has the competence nevertheless, to form an opinion on the validity of the Air Navigation Orders, the formation of that opinion is (to adopt the language of the President in Adams' Case…) "merely a means which the administrative body may adopt in moulding its conduct to accord with the law". Before this Tribunal, as an administrative body, could determine to mould its conduct by treating delegated legislation as invalid, there would, in our view, need to be the most compelling grounds to justify it in so doing.
[49] Adams v Tax Agents Board (1977) 12 ALR 239.
[50] (1979) 2 ALD 934, 939.
The first consideration is whether the Comcare Guide can be given a construction that is consistent with a proper construction of the SRC Act.
The Tribunal is not satisfied that the exclusion in Principle 12 ‘alters the requirements or operation of the Act’ as claimed in Roxas. While section 24(1) of the SRC Act does provide that the Respondent is liable to pay compensation if the Applicant is permanently impaired as a result of an injury, the liability to pay compensation is not absolute. It is subject to qualifications in the Act. First, the level of compensation is subject to a maximum amount as determined from time to time. Secondly, section 24(7)(b) provides that compensation is not payable if the degree of impairment (other than hearing loss) is below 10%. Thirdly, the amount of compensation in each case is as assessed under s 24(4). This assessment requires the Respondent to determine the degree of impairment resulting from the injury. The SRC Act empowers the Respondent to prepare the Guide which is then to be approved by the Minister and to be enforceable as a legislative instrument. Sections 28(4) and 24(5) require the Respondent (and in these proceedings the Tribunal) to determine the degree of impairment under the provisions of the Guide. As was noted by the Full Federal Court in Re Comcare v Wuth, the use of the term ‘shall’ in s 28(4) of the SRC Act ‘makes it clear that applying the relevant provisions of an approved Guide is a mandatory obligation imposed upon Comcare and the Tribunal’[51].
[51] (2018) 159 ALD 1, 24 per Perry J.
The underlying principle of assessment under the Comcare and AMA Guides is that the degree of impairment be assessed on the basis of measurable and objective criteria. Chronic pain conditions are, by their nature, unable to be objectively assessed and measured. This provides a rational justification for the exclusion of such conditions from assessment under the Guides, and as a consequence from a determined amount of compensation for permanent impairment. This outcome is not inconsistent with section 28(5) of the SRC Act which specifically provides that the methods for determining the percentage of impairment under the Guides may result in an assessment of 0%.
It is the Tribunal’s view that the exclusion of chronic pain conditions in Principle 12 demonstrates a clear intention that the AMA Guide not be used for the purpose of assessing the degree of impairment of chronic pain conditions. This includes fibromyalgia. This construction is not inconsistent with the proper construction of the SRC Act. There is no indication in the SRC Act that every person who has a permanent impairment arising out of their employment is entitled to receive an amount of compensation for that impairment or for non-economic loss. Specific provisions of the SRC Act (sections 24(7) and 28(5)) separately contemplate assessments which result in zero compensation. The SRC Act allows Comcare to set criteria for assessment. The exclusion of an assessment for fibromyalgia is consistent with the overall thrust of the Guides, which apply measurable and objective assessment methodologies, which are not applicable to chronic pain conditions.
Even if the Tribunal was able to have regard to the AMA Guide to assess the degree of the Applicant’s impairment, the AMA Guide does not allow for the assessment of the Applicant’s fibromyalgia.
The AMA Guide does deal with ‘Pain’ in Chapter 18, but section 18.3b of the AMA Guide states as follows:
…physicians disagree sharply about whether individuals with chronic pain should be construed as having conditions with definite, albeit obscure, biologic underpinnings. The alternative is to describe these people as having CPS, psychogenic pain syndromes, or some other term implying that their pain cannot be associated with a well-accepted biologic abnormality. For purposes of this chapter, the pain of individuals with ambiguous or controversial pain syndromes is considered unratable….the distinctions between well-recognized conditions and ambiguous or controversial ones is subtle, so that no definitive list of ambiguous or controversial conditions can be given. The examining physician can, however, identify ambiguous or controversial syndromes by asking the following questions:
1.Do the individual’s symptoms and/or physical findings match any known medical condition?
2.Is the individual’s presentation typical of the diagnosed condition?
3.Is the diagnosed condition one that is widely accepted by physicians as having a well-defined pathophysiologic basis?
If the answer to all three of the above questions is yes, the examiner should consider the individual’s pain-related impairment to be ratable and should proceed according to the rating protocol described in Section 18.3d. If the answer to any of the above three questions is no, the examiner should consider the individual’s pain-related impairment to be unratable.
In answering these three questions in the Applicant’s case, the answer to the first question is clearly ‘Yes’. He suffers from fibromyalgia. As to the second question, the consensus of the medical evidence is that the Applicant’s condition is typical of the diagnosed condition, although probably at the extreme end of the range of symptoms. As to the third question, it cannot be said; on the basis of the medical evidence in this case that fibromyalgia is widely accepted by physicians as having a well-defined pathophysiologic basis. Without recounting all of the medical opinion presented in this case, the Tribunal is not satisfied that fibromyalgia is associated with any specific disease or injury. There is widespread disagreement as to whether the condition can arise as a result of trauma. Opinions differ on the degree to which the condition is due to psychological, social or physiological factors. On this basis, the Tribunal concludes that the correct answer to question 3 is ‘No’. Accordingly, the Guide requires that the ‘examiner should consider the individual’s pain-related impairment to be unratable.’
This conclusion is consistent with the opinion of Dr Kostos. When asked to assess the Applicant’s pain-related impairment under Chapter 18 of the AMA Guide, he said bluntly that ‘given the limitations I have already stated I consider [the Applicant’s] condition unrateable’.[52]
[52] Exhibit R3.
The AMA Guide also states in section 1.5 of Chapter 1 that:
Given the range, evolution, and discovery of new medical conditions, the Guides cannot provide an impairment rating for all impairments. Also, since some medical syndromes are poorly understood and are manifested only by subjective symptoms, impairment ratings are not provided for those conditions. The Guides nonetheless provide a framework for evaluating new or complex conditions. Most adult conditions with measurable impairments can be evaluated under the Guides. In situations where impairment ratings are not provided, the Guides suggests that physicians use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.
In Re Comcare v Wuth[53], the court stated that, in:
“suggest[ing]” that physicians use clinical judgment, it is plain from the context that the text is not suggesting that others might use clinical judgment, but is rather a suggestion to physicians as to how they might undertake the necessary comparison in situations where no impairment ratings are provided. As such, as Comcare submits, the AMA5 permitted only a physician to use clinical judgment, and did not permit the decision-maker independently in the absence of any expert evidence to compare the unlisted condition with an allegedly similar impairment that was measurable.
[53] Re Comcare v Wuth (2018) 159 ALD 1, 24 per Perry J, with whom Siopis J agreed.
The assessments of both Professor Roberts and Professor Romas were made by reference to the Comcare Guide and not the AMA Guide. Neither witness undertook the essential exercise of ‘comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.’ Professor Roberts gave evidence that fibromyalgia does not lend itself to objective assessment and there was no evidence of any measurable impairment in the sense of an objectively measurable condition. In addition, Professor Roberts was clear in his evidence that he was not able to assess the Applicant’s condition using either the Comcare Guide or the AMA Guide. Professor Romas did not actually assess the degree of impairment resulting from the Applicant’s fibromyalgia. He focussed his assessment on the Applicant’s organic conditions and declined to give an assessment for some symptoms for which there was an absence of organic factors. Dr Kostos stated in his report of 2 March 2018[54] that he was unable to assess the degree of impairment of the Applicant’s fibromyalgia.
[54] Exhibit R3
On the basis of this medical evidence, the Tribunal is satisfied, even if Principle 12 does not exclude it from consideration, that the Applicant’s fibromyalgia is not a ‘measurable impairment’ that can be evaluated under the AMA Guide.
CONCLUSION
The Tribunal finds that the Applicant suffers from fibromyalgia; which is an injury which has resulted in a permanent impairment. Accordingly, under section 24(1) the Respondent is liable to pay compensation to the Applicant of an amount determined in accordance with the SRC Act.
However, the Tribunal finds that the degree of the Applicant’s impairment cannot be determined under the provisions of the Guide as required by section 24(5). It is a mandatory requirement of the SRC Act that the degree of impairment be made under the relevant provisions of the Guide – section 28(4). In the absence of an assessment of the degree of impairment, the Tribunal is not able to assess the amount of compensation payable to the Applicant under section 24(4).
Similarly, the calculation of the amount of compensation to be paid for non-economic loss under section 27(2) is based on the degree of impairment determined under section 24.
Accordingly, the Tribunal has no alternative but to find that the Applicant is not entitled to any amount of compensation under section 24 or under section 27 of the SRC Act in respect of the permanent impairment resulting from his condition of fibromyalgia.
DECISION
On this basis, the Tribunal affirms the decision under review.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for the decision herein of Member Richard West .....[sgd]................................................
Associate
Dated: 3 October 2019
Dates of hearing:
21-22 May 2019 & 20 June 2019
Applicant: Self-Represented
Advocate for the Applicant: Ms Kathleen Carlisle Solicitors for the Respondent: Moray & Agnew Lawyers
Mr Lazarus DobelskyCounsel for the Respondent: Mr Joe Lenczner
[15] Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under s 24 of the SRC Act, Comcare is liable to pay additional compensation for non‑economic loss in accordance with s 27 of the SRC Act.
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