Cosgrove-Kaye and Comcare (Compensation)

[2019] AATA 1238

Cosgrove-Kaye and Comcare (Compensation) [2019] AATA 1238 (7 June 2019)

Division:                  GENERAL DIVISION

File Number(s):      2017/2186; 2017/5765; 2017/5501

Re:Somone Cosgrove-Kaye

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President John Sosso

Date:7 June 2019

Place:Canberra

The Tribunal:

(a)       sets aside the reviewable decisions 2017/2186, 2017/5501 and 2017/5765;

(b)remits these decisions to Comcare for appropriate action in accordance with this decision;

(c)allows the Applicant 28 days from the date of this decision to make any application for costs.

........................................................................

Deputy President John Sosso

Catchwords

COMPENSATION – claimed conditions of fibromyalgia and conversion disorder – whether claimed conditions an injury or disease – where Respondent decides no present liability for medical treatment and incapacity – whether Applicant’s employment contributed, to a significant degree, to the onset of the Applicant’s conditions – credibility of witnesses considered – decisions under review set aside and remitted

Legislation

Safety, Rehabilitation and Compensation Act 1988
Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007

Cases

Abrahams v Comcare [2006] FCA 1829
Australian Postal Corporation v Lucas (1991) 33 FCR 101
Canute v Comcare (2006) 226 CLR 535
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Commonwealth v Smith (1989) 12 ALD 224
Federal Broom Co. Pty. Ltd v Semlitch [1964] HCA 34
Havnen and Comcare [2010] AATA 535
Howes v Comcare [2016] FCA 1521
Keenan and Comcare [2009] AATA 884
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Lees v Comcare [1999] FCA 753
Martin v TAL Life Ltd [2015] VCC 921
McNamara and Comcare [2018] AATA 3688
Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641; 156 ALD 584
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Prain v Comcare [2017] FCAFC 143
Renouf and Comcare [2004] AATA 525
Rose and Comcare [2017] AATA 790
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
Ward v Corrimal-Baalgownie Collieries Pty Ltd (1938) 61 CLR 120
Zahr v TAL Life Limited [2014] NSWSC 358

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

REASONS FOR DECISION

Deputy President John Sosso

7 June 2019

INTRODUCTION

1. Ms Somone Cosgrove-Kaye (“the Applicant”) seeks review of three reviewable decisions of Comcare:

   (a)2017/2186: The decision of 7 April 2017 found there was no present liability under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of fibromyalgia and conversion disorder – Exhibit 1 T270 pp. 929 – 934; and

   (b)2017/5501 and 2017/5765: On 4 September 2017 Comcare, on a reconsideration of its own motion, varied two earlier determinations (of 12 October 2016 and 1 March 2017 – Exhibit 2 ST3 p. 1329 and ST4 p. 1331). Comcare determined that there was no present entitlement to incapacity payments beyond 1 March 2017 – Exhibit 2 ST7 pp. 1339 – 1341.

2. The Applicant was born in 1972 and at the time of Hearing was 46 years of age – Exhibit 1 T3 p. 9. The Applicant commenced employment with the Commonwealth Treasury in February 1991 – Exhibit 1 T3 p. 16; Exhibit 3 para 3.

3. In August 1998, the Applicant took maternity leave for the birth of her first child, and returned to duties in May 1999 working 24 hours per week – Exhibit 3 para 4.

4. Further maternity leave was taken from December 2001. The Applicant returned to work in March 2003 and again was working 24 hours per week – Exhibit 3 paras 5 – 6.

5. In early 2004 the Applicant’s Office Manager retired and a replacement from outside the public service was recruited. The new Office Manager’s lack of public service experience and managerial style caused stress and friction, with some staff leaving. The Applicant stated that this resulted in her having to take on extra responsibilities, including training new staff – Exhibit 3 paras 9 – 11.

6. By mid-2004 the Applicant was placed on higher duties at the APS 5 level, but was required to increase her working hours to 29 hours per week. However, in reality, the Applicant stated that she was being contacted for work related duties throughout the week – Exhibit 3 paras 12 – 13.

7. In mid-2005 the Office Manager took maternity leave and the Applicant acted in her role at the APS 6 level for 29 hours per week. However, the Office Manager’s duties were not modified, and the Applicant explained her situation as follows – Exhibit 3 para 15:

   “I was endeavouring to work a full time workload on part time hours. No contingencies or support plans were put in place to enable me to do this role on part time hours. At the time the role was even more challenging than normal as there were quite a number of inexperienced staff in the team who required training before they would become productive members of the Team. I was also dealing with the damage done by the previous manager to team cohesion and morale during her stint as Manager of the area. I was endeavouring to improve morale within the Unit as a whole.”

8. One of the “new starters” was Megan who had acrimonious relations with other staff. The Applicant stated that Megan was hard to manage and took up a disproportionate amount of her time. Megan started to yell and scream at the Applicant, and the failure to resolve her issues resulted in the Applicant believing that it was undermining her authority as the Acting Office Manager. In April 2006 it was determined to formally notify Megan that her probationary appointment would not be extended, however before it could be delivered she resigned. After Megan’s departure the Applicant and her Manager were called up to see one of the Executive Directors who insinuated that the situation had been handled poorly. This insinuation upset the Applicant – Exhibit 3 paras 16 – 22.

9. By early 2006 the Applicant’s right arm below the elbow became sore and she also felt stressed and was physically ill. Subsequently, at the suggestion of her Manager, the Applicant sought medical advice – Exhibit 3 paras 23 – 24.

10. The Applicant was a regular patient at the Isabella Plains Medical Centre. The summonsed records of that Centre indicate that the Applicant was examined by Dr Alfred Low on 15 August 2006 who prepared documentation in support of a Workers’ Compensation Claim – Exhibit 6 pp. 44 – 45.

11. On 20 August 2006, the Applicant lodged a Claim for Workers’ Compensation in which she sought compensation in respect of occupational overuse of the right elbow, forearm, wrist and hand – Exhibit 1 T3 pp. 10, 15. This “injury” had been “gradual” with “not one particular incident”. The Applicant stated that she had a generally “busy job, quite a lot of computer work on a daily basis” – Exhibit 1 T3 p. 12.  The symptoms were first noticed on or around 15 June 2006 and the Applicant first sought medical treatment on 15 August 2006 – Exhibit 1 T3 p 10.

12. Dr Themina Rahim (from 2010 Dr Rahim is referred to as “Rauf-Rahim”) provided a medical report to Comcare which is dated 15 September 2006. In that report, Dr Rahim diagnosed the Applicant as suffering from right tennis elbow secondary to occupational overuse. Further, Dr Rahim opined that the condition could be related to frequent right elbow use and may have been aggravated by regular use of a computer mouse and not sitting in a proper posture – Exhibit 1 T9 pp. 34 – 35.

13. Consequently, on 28 September 2006 Comcare accepted liability for “[S]ynovitis and tenosynovitis (right) and lateral epicondylitis (right).” – Exhibit 1 T12 pp. 38 – 40.

14. During this time the Applicant was attending the Southern Canberra Physiotherapy & Sports Injury Clinic where she was treated by Mr Julian Russell-Jones. The Applicant received massage therapy, electrotherapy and exercises, together with mobilisation of her low cervical spine. In a letter to Dr Rahim of 21 September 2006, Mr Russell-Jones observed – Exhibit 1 T11 p. 37:

    “I do wonder whether there is a neurogenic component to her pain and whether some low dose tricyclics or antidepressants may be indicated to help lessen the neural component of her pain. I think she would also benefit from a general fitness plan.”

15. The Applicant then underwent a graduated return to work and commenced a rehabilitation plan on 18 August 2006. In a report dated 6 December 2006 by her rehabilitation provider (Ms A McIlveen, Occupational Therapist), it was noted that the Applicant was receiving one physiotherapy session per week and was taking anti-inflammatory and anti-depressant medication as well as Panadeine Forte. Ms McIlveen made the following observations – Exhibit 1 T16 p. 64:

    “Ms Cosgrove -Kaye is stressed at the present time due to pressures in the workplace and current understaffing in her section. Despite continual support from senior staff members Ms Cosgrove-Kaye is faced with the challenge of completing a heavy workload within limited time due to her current medical restrictions. She is also concerned about the welfare of her staff, as she is not there to assist as much as previously and feels that she is not fulfilling her role as their supervisor.”

16. Dr Garth Eaton, Occupational Physician, examined the Applicant on 4 July 2007 and noted that she “had a severe flare-up of her depression and her pain and discomfort continue” – Exhibit 1 T33 p. 97. The Applicant was also examined by two psychologists, Vicki Coghlan and Rachel Venn, who in a report to Comcare of 9 July 2007, noted that the Applicant “presented with a depressed and anxious mood with associated irritability and reduced capacity to tolerate stressors and frustration.” It was also observed that the Applicant had “unrealistically high standards” that were linked to “inflexible ‘all or nothing’ thinking patterns.” Further, it was noted that the Applicant believed she had no control over her pain, had lost confidence in herself, found change confronting and struggled with modifying her behaviour. It was also observed that due to the Applicant’s “entrenched dichotomous thinking” she found it hard to accept her pain problem and adapt to it rather than struggle against it – Exhibit 1 T34 p. 98.

17. Dr Rahim referred the Applicant to Dr Judith May who, in a report to Comcare dated 9 August 2007, diagnosed her with “cervical posture syndrome, bilateral flexor and extensor epicondylosis…complicated by a complex regional pain syndrome.” Dr May was of the opinion that prolonged computer use, especially the use of the mouse, contributed to the Applicant’s condition together with poor posture. Further, Dr May did “not feel that Mrs Cosgrove-Kaye is exaggerating her symptoms. I found her genuine.” Finally, Dr May opined that the Applicant had a very poor prognosis “due to the chronicity and degree of her symptoms now approximately one year following the initial injury.” Exhibit 1 T38 pp. 109 – 112.

18. The Applicant was examined by Dr Peter Stevenson, Consultant Physician, on 6 December 2007. In a lengthy and detailed report, Dr Stevenson concluded that the Applicant’s pain was related “somewhat more to the emotional distress of the workplace, rather than to unusual task demand.” Dr Stevenson opined that the Applicant’s condition seemed due to “psychological matters rather than physical” – Exhibit 1 T44 p. 128.

19. The Applicant was next referred to Dr William Glaser, Consultant Psychiatrist. In his report of 27 December 2007, Dr Glaser made the following diagnosis – Exhibit 1 T45 p. 146:

    “From a psychiatric point of view, she is suffering from an adjustment disorder with anxiety and depressed mood. Her current symptoms include feelings of frustration and anxiety, sleep disturbance, some lack of self-confidence, subjective memory and concentration difficulties and some genuine bewilderment regarding her current condition and the lengthy time which it has taken to resolve.”

20. Dr Glaser opined that the Applicant had no underlying or pre-existing psychiatric condition and that it was “both a reaction to her ongoing pain and disability and also a response to some psychological stresses which she experienced at the time of the development of her physical problems (e.g. unfavourable interactions with the new manager, having to cope with the distress of fellow staff members at the time).” – Exhibit 1 T45 p. 147. Accordingly, Dr Glaser advised that the Applicant’s employment with the Treasury did contribute to the cause, aggravation and acceleration of her condition.

21. Based principally on the report of Dr Glaser, Comcare on 30 January 2008 accepted liability for the Applicant’s secondary condition of adjustment reaction with mixed emotional features – Exhibit 1 T50 pp. 164 – 165.

22. In June 2009 the Applicant started experiencing “funny turns” – Exhibit 1 T77 p. 220. The first episode occurred when the Applicant was attending a “Pink” concert in Sydney. She collapsed before the concert started. The Applicant described the episode as follows – Exhibit 3 para 35:

    “I was on the floor area of the venue and I started to feel off. I moved to one side and lent on a wall. I was feeling a little dizzy. I remember a security person coming to speak to me and telling me that I couldn’t lean on the wall. The next memory I have is of waking up in the first aid room. I can recall coming to and passing out whilst in that room. A friend went with me to the hospital. There was no definitive diagnosis. The doctors speculated that I might be suffering from dehydration or some sort of infection. I returned to Canberra the next day and collapsed at home that evening.”

23. Although the Applicant states that the frequency of the episodes increased significantly, she continued working, but on 25 November 2009 she collapsed at work – Exhibit 3 para 40.

24. The Applicant was referred to Dr Walter Abhayaratna, a Cardiologist who performed a number of tests. In addition the Applicant was also examined by Dr Raymond Schwartz, Neurologist, who, in a report dated 30 November 2009, noted that she had experienced 25 episodes over the past few months. Dr Schwartz observed that the episodes were characterised by loss of consciousness with “a ‘postictal’ episode of drowsiness and headache which may persist for many days.” The onset of these episodes coincided with the cessation of psychological counselling. Dr Schwartz made the following diagnosis – Exhibit 1 T77 p. 220:

    “…consideration needs to be given to complex partial seizures although presentation is atypical. I wonder whether there may be a primary psychogenic cause of Somone’s symptom complex. I feel that Somone would benefit from an EEG and sleep deprived EEG. I note an apparently normal MRI scan of the brain and MRA but feel that she should have coronal view of the temporal lobes if this has not been done thus far…”

25. The Applicant was subsequently examined by Dr Andrew Hughes, Neurologist. In a report dated 17 December 2009, Dr Hughes noted that the Applicant had a witnessed Syncope episode with a normal pulse but high blood pressure. He went on to observe that both the MRI of the brain and EEG were normal, which tended to exclude a diagnosis of temporal lobe epilepsy. Dr Hughes observed that he would try to arrange a sleep deprived EEG or a prolonged video EEG monitoring in attempt to “capture” one of the episodes – Exhibit 1 T78 p. 222.

26. Subsequently an episode was recorded whilst the Applicant was undergoing EEG monitoring. In a report dated 11 January 2010, Dr Hughes noted that the EEG did not show any epileptiform activity which clearly excluded epilepsy as a cause. Dr Hughes observed – Exhibit 1 T79 p. 223:

    “…I think there is a significant chance that this is psychological in nature and this may be [sic] well be a conversion disorder. I note that Dr Schwartz also thought that this was a significant probability as well.”

27. In an Initial Needs Assessment Report dated 17 March 2010 it was noted that the Applicant claimed that she was then having several episodes of collapse each day which were then followed by headaches – Exhibit 1 T82 p. 236. Dr Keith Chan in a report dated 22 March 2010 also reported that these “episodes of altered consciousness would occur many times a day and on several occasions even led to falls on the ground” – Exhibit 1 T83 p. 238. This pattern continued throughout 2010, and on 29 June and 26 July 2010, Ms Julie Thompson, Rehabilitation Consultant, reported that the Applicant claimed she experienced episodes of “falling down” three to five times per day – Exhibit 1 T90 p. 258, T93 p. 264, T111 p. 321. On 7 September and 28 September 2010, the Applicant informed, respectively, Drs Leon Le Leu and Zoltan Zsadanyi that she was experiencing four to five episodes each day – Exhibit 1 T108 p. 300, T109 p. 310.

28. In February 2010 the Applicant commenced being treated by Dr Lev Fridgant, Psychiatrist. In a report dated 17 May 2010, Dr Fridgant diagnosed the Applicant as suffering from a conversion disorder which was directly related to the stress in her work environment, in particular “conflict with another employee, work places’ management of her complaint and condition, apparently excessive and unmanageable demands on her performance. In addition there appears to be an issue of unresolved conflict over a complaint by a person in her charge, which appears not be substantiated by further enquiries. I understand the person has resigned from the Public Service…” – Exhibit 1 T86 pp. 244 – 245.

29. On 1 July 2010, Ms Sandra McMillan, Comcare Delegate, relying on the report of Dr Fridgant, determined to extend liability under s 14 to “Conversion Disorder”. This was regarded as a better diagnosis than that of adjustment reaction with mixed emotional features. As “conversion disorder” was not included in the version of International Classification of Diseases and Injuries then used by Comcare, Ms McMillan, in consultation with Dr Fridgant, classified the condition as “Generalized anxiety disorder” – Exhibit 1 T91 p. 261.

30. In the second half of 2010 the Applicant was treated by Dr San Wong, Rheumatologist. Dr Wong referred the Applicant for diagnostic imaging of her right hand and wrist. The MRI report of Dr Nicholas Kenning of 9 September 2010 disclosed no “evidence of synovitis or tenosynovitis. No fracture or soft tissue abnormality is identified.” – Exhibit 1 T100 p. 277.

31. In his report of 20 September 2010 to Dr Rauf-Rahim, Dr Wong made the following observations – Exhibit 1 T102 p. 279:

    “Clinically she continues to have multiple trigger points on palpation. I do suspect that she has fibromyalgia with fatigue pain. I have asked her to continue with fibromyalgia management, which is Lyrica, antidepressant and analgesia. I do think that her problem with pain will be persistent and pervasive. She needs her sleep to be managed a little bit better and if this is a persistent problem, she might have to consider trying another sleep tablet. I have also asked her to continue with the Psychiatrist’s treatment and continuing with physiotherapy. Unfortunately her major problem is conversion disorder. This has been the biggest concern as she had a fainting episode, which can occur anytime.”

32. Comcare referred the Applicant to Dr Zsadanyi for a psychiatric assessment. In his report of 10 October 2010, he concluded that the most likely diagnosis was conversion disorder, and that this was related to the work stress she had experienced. Dr Zsadanyi concluded by recommending that the Applicant should be medically retired and was incapable of working either in an office or at home – Exhibit 1 T108 pp. 303 – 304.

33. The Applicant was also examined by Dr Leon Le Leu, Occupational Physician, who, in his report of 21 October 2010 concluded that she had “a constellation of symptoms, both physical and mental, which do not fit any particular pattern from the physical viewpoint. Some of her symptoms seem quite anomalous and even bizarre.” – Exhibit 1 T109 p. 315. Dr Le Leu was also of the opinion that the Applicant should be medically retired.

1. Comcare next referred the Applicant for a psychiatric assessment by Dr Anthony Sheehan. Dr Sheehan examined the Applicant on 15 April 2011 and provided a report dated 21 April 2011 – Exhibit 1 T136 pp. 385 – 395. Dr Sheehan opined that the Applicant presented with a history and symptoms consistent with a diagnosis of conversion disorder which developed secondary to work-related stress and her chronic pain symptoms. Further, Dr Sheehan reported that the condition was related to work-based factors and appeared permanent and likely to continue indefinitely – Exhibit 1 T136 pp. 392 – 393.

2. Comcare also referred the Applicant to Professor Les Barnsley, Consultant Rheumatologist, who assessed her on 4 May 2011. Professor Barnsley made the following diagnosis – Exhibit 1 T142 p. 435 - 436:

   “I consider this lady has a complex interaction between significant anxiety and depression and conversion reaction that has resulted in multiple collapses that would appear to be quite significantly disabling. In addition, she has a chronic widespread pain problem that particularly affects her upper body, but she does have some positive features of tender points in the lower quadrants as well… I consider, given the duration of the symptoms of a refractory nature that she has experienced to date, it is more likely than not that she will have ongoing problems with fibromyalgia. I consider that it is likely to continue indefinitely. It is impossible to say with any confidence when this impairment became permanent, but I consider it more likely than not to have been in the period around 2008.”

3. Professor Barnsley opined that the Applicant’s condition was related to work-based factors and considered that stress contributed significantly to the development of her depression. Additionally, he reported that the development of pain in the Applicant’s arm was associated with work-based factors, notably the lack of control over the time of work and an inability to complete all of her duties – Exhibit 1 T142 p. 436.

4. Finally, Professor Barnsley opined that the Applicant “does meet the criteria for having an objectively identified orthopaedic or neurological condition if one accepts that the tender points of fibromyalgia are indicative of neurological dysfunction, that is, dysfunction within the pain system.” – Exhibit 1 T142 p. 437.

5. On 12 May 2011 Comcare accepted liability to pay compensation to the Applicant for permanent impairment for generalised anxiety disorder/conversion disorder in the sum of $57,723.09 – Exhibit 1 T143 pp. 445 – 448.

6. Around this time, Comcare sought further reports from Professor Barnsley, Dr Zsadanyi and Dr Le Leu.

7. Professor Barnsley reiterated, inter alia, in his supplementary report of 2 June 2011 that the Applicant met the criteria for a diagnosis of fibromyalgia - Exhibit 1 T147 p. 456.

8. Comcare then referred the Applicant to Dr Zsadanyi for psychiatric re-assessment which was effected on 31 May 2011. In his report of 16 June 2011 Dr Zsadanyi again diagnosed the Applicant as having symptoms consistent with a conversion disorder and again noted that she was experiencing regular episodes which were continuing to impact on all aspects of her life. Dr Zsadanyi opined that a reasonable option for the Applicant was trying to work from home two hours per day, three days per week. This recommendation was made in the context of the Applicant expressing frustration and being bored at home and not being able to work. However, Dr Zsadanyi advised against the Applicant working away from home due to the risk of fainting episodes. He referred to the physical risks of the Applicant’s collapsing episodes and noted that she was unable to drive herself and could not cook without someone being around – Exhibit 1 T148 pp. 461 – 462.

9. Comcare also requested a reassessment of the Applicant by Dr Le Leu. In his report of 23 June 2011, he opined that the Applicant’s condition had not changed since his first assessment. He noted that there had been no discernible progress in the Applicant’s condition. Dr Le Leu agreed with Dr Zsadanyi that the Applicant was “certainly not fit to work in the workplace” and noted that the “main risks associated with these episodes are the same as anyone falling i.e. head injury, single fractures or multiple fractures, soft tissue injuries.” He noted that the risk decreased if the Applicant worked from home, but cautioned that the risk “would not become zero”. Overall, Dr Le Leu expressed doubts about a return to work because of the risk of injury from the onset of episodes, and referred to further compensation claims if the Applicant was injured while working at home – Exhibit 1 T150 pp. 485 – 487.

10. On 27 June 2011, Comcare determined that the Applicant was suffering from a chronic pain syndrome – fibromyalgia which condition was directly related to the workplace injury of 15 August 2006 – Exhibit 1 T152 pp 491 - 496. In reaching this conclusion the Comcare Delegate relied, in particular, on the conclusions reached in the original and supplementary reports of Professor Barnsley (Exhibit 1 T142 pp. 430 – 438, T147 pp. 455 – 466), the report of Dr Sheehan of 21 April 2011 (Exhibit 1 T136 pp. 385 – 395),  the report of Dr Chan of 22 March 2010 (Exhibit 1 T83 pp. 238 – 239), and the letters and reports of Dr San Wong of 20 September 2010 (Exhibit 1 T102 p. 279) and 18 February 2011 (Exhibit 1 T123 p. 362).

11. Relying principally on the supplementary report of Professor Barnsley, Comcare determined on 4 July 2011 that the Applicant suffering from a 10% degree of permanent impairment for chronic pain fibromyalgia – Exhibit 1 T153 pp. 494 – 497. It can be noted that the determination was varied on 4 October 2011 increasing the amount of compensation (Exhibit 1 T162 pp. 520 – 525), and was further varied in favour of the Applicant by a consent determination of the Tribunal of 2 December 2011 – Exhibit 1 T171 pp. 549 – 550.

12. Comcare next sought an updated opinion from Dr Fridgant. In particular, Comcare sought Dr Fridgant’s view of whether the Applicant’s condition could be a result of malingering, and in that regard referred to comments made by Dr Robert Fisher, Psychiatrist, in his report of 12 January 2011.

13. Dr Fridgant in his report of 13 July 2011 maintained that the Applicant fulfilled the diagnostic criteria for conversion disorder. He noted that intensity, frequency and severity of the symptoms were gradually diminishing, but they continued to exist. Dr Fridgant, then reported that he had spoken to Dr Fisher and he was “left in no doubt that neither he or I consider these diagnoses either possible or likely, but merely ‘possible’. The malingering diagnosis implies a specific production of symptoms for financial or emotional gain. There is no evidence of this occurring in Ms Cosgrove-Kaye.”- Exhibit 1 T154 pp. 498 – 499. The report of Dr Fisher is discussed below.

14. Comcare also sought a further report from Dr Sheehan. Again, the focus of the request was to ascertain whether Dr Sheehan’s diagnosis had altered having been supplied with the report of Dr Fisher. Dr Sheehan opined in his report of 2 August 2011 that on the balance of probabilities, and on the basis of available medical information, the Applicant’s diagnosis was that of conversion disorder. Dr Sheehan also pointed out that Dr Fisher had merely outlined various possibilities, including malingering, without any discussion of the possibilities – Exhibit 1 T156 pp. 503 – 505.

15. As indicated by Dr Fridgant, the Applicant’s condition improved somewhat by mid-2011. In Progress Reports dated 29 August, 9 November and 18 November 2011, her Rehabilitation Consultant, Ms Julie Thompson, reported that the Applicant stated she had some days without faints/falls but continued to have background headaches, nausea and vomiting together with pains in her arms and face – Exhibit 1 T158 p. 513, T165 p. 532, T168 p. 540. Similar observations were made by Dr Wong, who, in a letter to Dr Rauf-Rahim of 14 November 2011, noted that the Applicant informed him that the last fall she had was a week ago, but she was still suffering from a “lot of myofascial pain and headache” – Exhibit 1 T167 p. 538.

16. By 19 January 2012 Dr Fridgant, in a letter to Dr Rauf-Rahim, reported that the Applicant had experienced a period of 8 to 9 weeks without an episode and was able to resume driving. Dr Fridgant was supportive of a trial return to work – Exhibit 1 T175 p. 561. Similar supportive reports of a trial working from home arrangement were made by Dr Le Leu (report of 3 April 2012 - Exhibit 1 T179 pp. 568 – 578) and Dr Zsadanyi (report of 10 April 2012 - Exhibit 1 T180 pp. 579 – 584). It should be noted that the reports of Drs Le Leu and Zsadanyi followed the Applicant’s participation in an integrated s 36 assessment.

17. The Applicant commenced on a structured and graduated return to work program on 17 May 2012 – Exhibit 1 T184 p. 593. She commenced working two hours, three days a week: Monday, Wednesday and Thursday. The Applicant was given ad hoc work to do without major deadlines.

18. In August 2012 Comcare requested a further s 36 integrated assessment by Drs Le Leu and Zsadanyi to ascertain the Applicant’s then rehabilitation progress and to determine whether it was safe to increase her hours – Exhibit 1 T190.1 pp. 619 – 620 and Exhibit 1 T191.1 pp. 627 - 628.

19. Dr Le Leu recommended in a report dated 14 September 2012 that an increase in her working hours would increase the frequency of the risks faced by the Applicant. Dr Le Leu recommended continuing the Applicant on two hours, three days per week for at least the next six months – Exhibit 1 T190 p. 617. This recommendation was supported by Dr Zsadanyi in a report also dated 14 September 2012 – Exhibit 1 T191 p. 625.

20. A new return to work plan was implemented for the period 30 June 2012 until 30 March 2013. A report of 19 January 2013 by Ms Julie Thompson, Rehabilitation Consultant, noted that the Applicant continued to report episodes of fainting/falling, and that these seemed to be exacerbated by fatigue or tiredness. The Applicant informed Ms Thompson that this tiredness arose from all forms of activity and did not confirm to any particular pattern which would enable her to predict and avoid specific activities. The Applicant also reported constant facial and arm pain together with headaches and nausea. At that time, the Applicant was attending fortnightly consultations with Dr Fridgant and Ms Carmel O’Sullivan, Psychologist, was having regular massage and physiotherapy and attending supervised exercises in the pool and gym – Exhibit 1 T197 pp. 647 – 649. A follow-up report of 26 March 2013 also noted that the Applicant was continuing to suffer from fainting and failing episodes and that on a good week she may only experience one, whereas on a bad week she might suffer several – Exhibit 1 T205 p. 686.

21. Unfortunately, the Applicant had an episode in January 2013 where she hit her head when she fell over resulting in her taking a week off work. The episode occurred at a time when the Applicant experienced increased anxiety due to her supervisor leaving. Although the Applicant reported to feeling stressed, conversely she informed Dr Zsadanyi that she also had a “sense of belonging” and enjoyed the social aspects of being at work. Both Dr Zsadanyi and Dr Le Leu who reassessed the Applicant in March 2013 opined that she continued to suffer from a conversion disorder and that she should continue on her existing return to work program without any increase in hours or duties – Exhibit 1 T203 pp. 667 – 674 and Exhibit 1 T204 pp. 675 – 685. Dr Le Leu, however, also recommended that the Applicant cease her massage therapy and physiotherapy treatments as “she will undoubtedly become dependent on such treatment if she has not already become so.” – Exhibit 1 T204 p. 682.

22. Comcare next referred the Applicant to Associate Professor Wayne Reid, Clinical Neuropsychologist, for a neuropsychological assessment which was carried out on 21 May 2013. In his report of 29 May 2013, Associate Professor Reid opined that she exhibited symptoms consistent with Major Depression and Somatisation Disorder but could find no evidence of acquired cognitive impairment to affect her capacity to function in her then current work role. Associate Professor Reid found no evidence that the Applicant was exaggerating her symptoms. He made the following observations – Exhibit 1 T209 p. 706:

    “This was carefully examined using objective assessment of symptom exaggeration. The symptoms she displays are consistent with her diagnosis of Somatisation Disorder and Depression.”

23. Associate Professor Reid also opined that the Applicant’s ongoing management with her treating psychiatrist and clinical psychologist were appropriate management strategies, and could not suggest any alternative treatment – Exhibit 1 T209 p. 706.

24. Finally, Associate Professor Reid opined, in response to a question whether all medical treatment given was reasonable for the Applicant’s conversion disorder, that all the investigations were appropriate in excluding an underlying organic basis for her symptoms and then directing management to her psychological state – Exhibit 1 T209 p. 707.

25. Comcare next referred the Applicant to Dr Dwight Dowda, Occupational Physician, who carried out an assessment on 23 May 2013. Dr Dowda noted that since December 2007 the Applicant had been the subject of 15 independent medical assessments with MLCOA, and had also been the subject of numerous medical reports and assessments by her treating doctors. After setting out the diagnoses in the various medical reports Dr Dowda observed that there was a consensus that the Applicant had a conversion disorder. Dr Dowda observed that the large number of medical assessments of the Applicant indicated there was a chronic issue with respect to her psychiatric condition but also chronic pain which had been diagnosed as fibromyalgia. He found nothing to suggest the Applicant was voluntarily exaggerating her symptoms or displaying symptoms inconsistent with the claimed condition – Exhibit 1 T210 pp. 724 – 725.

26. Dr Dowda, however, noted that the Applicant had originally been diagnosed with synovitis, tenosynovitis and lateral epicondylitis. He opined that these are acute conditions “which are now not present. Her picture of arm pain and more generalised pain involving the upper torso, face, neck and back is probably more reasonably described as chronic pain syndrome with the specific diagnosis given of fibromyalgia given by [the] rheumatologist.” – Exhibit 1 T210 p. 724.

27. In response to a question whether the Applicant would benefit from further examinations with a specific specialist regarding her conditions, Dr Dowda gave this very direct, and not surprising, response – Exhibit 1 T210 p. 726:

    “I do not think that there is any indication for further specialist examinations.

    Comcare has already requested 15 independent examinations conducted by specialists from MLCOA as well as the various medical examinations carried out by other independent/treating doctors that have given, I believe, a reasonably clear indication over a long period of time of what Ms Cosgrove-Kaye’s situation is.”

28. In a supplementary report dated 26 July 2013 Dr Dowda repeated his diagnosis that the Applicant was no longer suffering from synovitis, tenosynovitis or epicondylitis and then observed – Exhibit 1 T216 p. 749:

    “Given the absence of objective findings that would suggest a focal pathology which might be responsive to various passive therapies including massage therapy and noting my earlier comments that she manifests a chronic pain syndrome, the passive therapy of massage offers no more in that setting than a ‘feel-good’ experience whereby there may be some relief of the symptoms of chronic pain but there is no direct relationship between a specific pathology being addressed by massage therapy and cure of a specific pathology.”

29. Relying principally on the above diagnosis of Dr Dowda, and also having regard to the negative diagnosis of Dr Le Leu in his report of 20 March 2013 on the benefit of ongoing physical treatment, Comcare issued a determination on 31 October 2013 that the Applicant was no longer suffering from the effects of the accepted condition of right synovitis and tenosynovitis and right lateral epicondylitis sustained on 15 August 2006 – Exhibit 1 T223 pp. 772 – 774. As a consequence of this determination, Comcare ceased paying for the Applicant’s massage therapy and physiotherapy treatments.

30. The Applicant was offered, and accepted, a Voluntary Redundancy, with a cessation of employment effective as at 14 November 2013 – Exhibit 1 T227 pp. 784 – 785.

31. Comcare sought updated reports in 2014 from Dr Fridgant (28 May 2014, Exhibit 1 T242 pp. 824 – 828) and Dr Tehmina Rauf-Rahim (15 July 2014, Exhibit 1 T245 pp. 834 – 836). In both instances the Doctors re-iterated the opinions they had previously expressed.

32. The seminal event in this matter did not occur until November 2016 when Comcare referred the Applicant to Dr P Vecchio, Rheumatologist, for medical assessment and report. Dr Vecchio provided a lengthy report dated 22 November 2016 – Exhibit 1 T259 pp. 890 – 905.

33. It is helpful to first refer to Dr Vecchio’s summary and assessment – Exhibit 1 T259 p. 895:

    “Mrs Cosgrove-Kaye has many issues, most of which are outside my specialty area and are primarily psychogenic in nature and origin, according to specialists in the field.

    Widespread bodily pain, in the absence of findings other than tenderness, is consistent with the syndrome of fibromyalgia, which in my opinion is entirely due to constitution, summed experience and not solely linked with employment. Some would classify fibromyalgia as a somatoform disorder, an expressed list of physical-sounding symptoms secondary to psychological experience or pathology.

    Fibromyalgia is the result of the interaction of a person’s background, interpretation of stress and constitutional amplification. It is contemporarily considered not to be a reasonable cause for disoccupation.

    They [sic] voiced psychosocial difficulties at the origin of the symptom experience need to be evaluated by those qualified in psychiatry.

    The diagnosis of conversion reaction is purely one for experienced psychiatrists and not in the realm of Rheumatology.

    Therefore, I will restrict my answers to my speciality (bodily pain) and expertise and not comment on the fainting episodes or the conversion reaction, which is a psychiatric diagnosis, nor any other psychiatric issues.”

34. Dr Vecchio then answered a series of questions posed by Comcare. The first question was the condition the Applicant then suffered. Dr Vecchio’s response was as follows – Exhibit 1 T259 p. 896:

    “Fibromyalgia, a constitutional condition.

    This is due to hyperinterpretation of normal stimuli, pressure and pain. The only physical findings are tenderness in various areas in the absence of any objective examination findings that would otherwise explain the sensitivity, such as signs of inflammation, which are always absent.

    It is unlikely to disoccupy Mrs Cosgrove-Kaye.”

35. The next question posed was whether the Applicant sustained a generalised disorder and chronic pain syndrome as a result of the 15 August 2006 incident. The response of Dr Vecchio was as follows – Exhibit 1 T259 p. 896:

    “I am unable to comment on the generalised anxiety disorder.

    In my opinion, the current symptoms of pain and diagnosis of chronic pain syndrome are not due to her work and not a consequence of the employment tasks and demands reported to have occurred in 2006 and beyond.

    There may have been stressful associations which may magnify constitutional pain, cause sleep disturbance and anxiety, but these demands do not cause chronic pain, and definitely not the cause of pain experienced a decade later.”

36. Dr Vecchio went on to opine that the Applicant’s chronic pain syndrome (which he labelled as fibromyalgia) was not due to the Applicant’s work. It was not probable that the Applicant’s musculoskeletal symptoms were associated with, or secondary to, work demands, stress and tasks. In Dr Vecchio’s opinion none of the Applicant’s pain issues were related to her employment. In short, Dr Vecchio opined, that the Applicant’s “fibromyalgia” was not due to her employment – Exhibit 1 T259 p. 897.

1. Dr Vecchio was unable to comment on the Applicant’s claimed conversion disorder, which he acknowledged seemed to be the explanation for the somatic fainting episodes. However, he went on to observe that fibromyalgia is constitutional and unrelated to employment and is not a conversion disorder. Fibromyalgia would have existed independent of the Applicant’s employment and is due to many factors integral to personal make-up. Further, Dr Vecchio opined that the Applicant was likely to express the same symptoms indefinitely – Exhibit 1 T259 pp. 897 – 899.

2. Whilst Dr Vecchio was of the view that the Applicant could perform “pre-injury” working hours associated with administration and related tasks and duties, this was predicated purely on a diagnosis of fibromyalgia. Dr Vecchio acknowledged that the conversion disorder and psychosocial issues were more likely to interfere with the Applicant’s ability to return to the workforce, and that fibromyalgia was not the Applicant’s dominant complaint. Reference was made to the Applicant’s fainting episodes and issues of mood disturbance – Exhibit 1 T259 pp. 901 – 902.

3. Two other observations of Dr Vecchio are of interest.

4. First, in response to questions about whether the Applicant was voluntarily exaggerating her symptoms, consciously guarding restrictions of movement, displaying symptoms inconsistent with the claimed conditions and demonstrating a range of movement during passive observation which were not replicated during clinical examination, Dr Vecchio answered in the negative on each occasion. In addition he stated: “This lady was highly cooperative during the entire examination” – Exhibit 1 T259 p. 904.

5. Second, Dr Vecchio downplayed the significance of fibromyalgia condition for the Applicant’s present state of health – Exhibit 1 T259 p. 904:

   “As I discussed, the fibromyalgia is a constitutional condition but has likely been overly stated as a cause of her disability. In my opinion it is unrelated to the issues discussed from 2006 which may well have caused psychosocial, psychological and psychiatric manifestations, and the fainting (conversion) issues. Separate opinion is necessary.”

6. On 25 January 2017 Comcare wrote to the Applicant in relation to the accepted conditions of “generalised anxiety disorder” and “chronic pain syndrome”. Reference was made to the report of Dr Vecchio and the Comcare Delegate stated that in her opinion the weight of current medical evidence supported the view that there was no relationship between the accepted conditions and the Applicant’s previous employment with the Treasury. An opportunity was given to the Applicant to present further medical evidence supporting her claim for compensation – Exhibit 1 T260 p. 912.

7. Dr Wong provided the Comcare Delegate with a report dated 26 February 2017. Dr Wong opined that the Applicant did have a diagnosis of fibromyalgia with chronic pain syndrome. He also referred to the Applicant’s conversion disorder and observed that as that disorder became more disabling, it has been the sole reason for her not being able to safely work in an office environment.

8. Dr Wong, however, gave a much more nuanced explanation of the aetiology of fibromyalgia. He made the following observations – Exhibit 1 T264 pp. 916 – 917:

   “…The pathogenesis of fibromyalgia is really still unknown and unclear. To date the diagnosis is more clinical with exclusion of other diagnosis as there is no major structural pathology nor biochemical diagnostic test. It is considered to be a disorder of pain regulation, often related to central sensitisation although some suggestion of peripheral mechanism has been postulated. There are wide potential association that has been linked with fibromyalgia including (although not exclusive causation by itself) genetic factors, environmental factors, sleep abnormalities, neurhormonal imbalance (hyperactivity of stress response) and perhaps peripheral pain mechanism related.

   As the aetiology of the condition is not clear and perhaps multifactorial, I think it is going to be hard in general to prove or disprove what is the actual cause of the fibromyalgia in an individual. The stressful situation, sleep disturbance and emotional stress are known to link with the symptom and aggravation of this, hence are a possible trigger at the time for Mrs Cosgrove-Kaye who might has been a susceptible individual. She mentioned that the symptoms has started during this period around 2006.”

9. Dr Rauf-Rahim also supplied a supportive report to Comcare in which she re-iterated her opinion that the Applicant’s original accepted conditions had not resolved and again stated her opinion that they were attributable to her stressful work situation and subsequent workplace trauma – Exhibit 1 T265 pp. 918 – 919.

10. Dr Fridgant provided a report dated 28 February 2017 in which he agreed with Dr Vecchio’s fibromyalgia diagnosis (even though it is not his specialty) and said – Exhibit 1 T266 p. 921:

    “In my professional opinion, as a consultant psychiatrist, I agree that the Fibromyalgia diagnosis does not directly relate to the original claim and therefore this aspect/component of Ms Cosgrove-Kaye’s suffering may well be reconsidered and ‘rolled out’ from her compensable condition. I have no issue at all with this consideration.”

11. Dr Fridgant then quoted Dr Vecchio’s disclaimer of not being qualified to comment on the Applicant’s conversion disorder as this was a psychiatric diagnosis. He then went on to note – Exhibit 1 T266 p. 921:

    “What follows in these pages is a clear and appropriate statement that Fibromyalgia no longer relates to Ms Cosgrove-Kaye’s claim or injury leading to a compensation case. On the other hand, an assumption has been made about the totality of her impairment, including Generalised Anxiety Disorder and Conversion Disorder which has somehow been ‘extinguished’ as a diagnostic entity, without any reference or information from the appropriately qualified specialist psychiatrist. This is a procedural error and requires immediate correction and retraction…

    I cannot find any current medical evidence which supports the view that my patient no longer suffers from any psychiatric conditions subsequent upon her injury at work…

    I found that she continues to be experiencing ongoing symptoms of Generalised Anxiety Disorder, Conversion Syndrome and ongoing difficulties with fainting…

    In my professional opinion Ms Cosgrove-Kaye continues to suffer from an accepted psychiatric condition, related in a weighty, indirect manner to her original claim…none of her disabilities appear to have diminished or disappeared since the writing of the previous comprehensive review…

    In my view the conditions which lead to acceptance of the claim…continue to exist and continue to be present in the severity and extent which precludes her from earning an income.”

12. It should be noted that Comcare was presented with three medical reports, two of which were from specialists in the field of rheumatology and psychiatry. In the case of Dr Wong, his opinion undercut the conclusions of Dr Vecchio. In the case of Dr Fridgant, he maintained the accepted view until then that the Applicant had a work-related psychiatric condition. In short, at the time Comcare made its initial Determination, it had before it no medical evidence that the Applicant’s psychiatric condition had resolved. Further, Dr Vecchio made it abundantly clear that he could not give an opinion on the Applicant’s conversion disorder as it was not his field of expertise. Accordingly, the concern expressed by Dr Fridgant was properly raised and soundly based.

13. Despite these reports, the Comcare Delegate in a determination of 2 March 2017, relying entirely on Dr Vecchio’s report, found that the Applicant was no longer suffering from claimed conditions of chronic pain syndrome and generalised anxiety and that, accordingly, effective from 2 March 2017 medical expenses under s 16 and incapacity payments under s 19 would no longer be paid – Exhibit 1 T267 pp. 923 – 924.

14. The legal representatives of the Applicant wrote to Comcare on 7 March 2017 seeking a reconsideration of the determination. It was submitted that the analysis in the determination was “virtually non-existent” and that there had been no consideration of the information provided in the multitude of earlier medical reports. It was also contended that the Delegate was in error because she had preferred the opinion of a rheumatologist over the opinion of a treating psychiatrist when what was at issue was two psychiatric conditions – Exhibit 1 T269 p. 927.

15. Whilst the contention that the initial Determination was devoid of sound reasoning was undoubtedly correct, the proposition that preference was given to the view of a rheumatologist over a psychiatrist was somewhat misplaced. This is so for two reasons. First, the condition of fibromyalgia is within the field of rheumatological science, and Dr Vecchio was entirely qualified to express an opinion. Second, Dr Fridgant, the treating psychiatrist, actually agreed with the diagnosis of Dr Vecchio, whereas the Applicant’s rheumatologist, Dr Wong, did not.

16. However, it is clear that when the Comcare Delegate made her decision she did not have any psychiatric evidence before her which contradicted the multitude of psychiatric reports in support of the Applicant. This was a serious omission and calls into question the medical and evidentiary basis for the totality of the determination that was made.

17. The legal representatives of the Applicant enclosed with the reconsideration request a short report prepared by Ms Carmel O’Sullivan, the Applicant’s psychologist for a number of years. Ms O’Sullivan made the following observations – Exhibit 1 T268 p. 926:

    “Since that injury her functioning has been compromised and her Anxiety Disorder has continued to affect her day to day functioning. I concur with Dr Lev Fridgant’s assertion that her current state is a continuation of that original injury. I also note that despite her commendable and significant efforts to recover her functionality, (eg. reducing her level of stress, implementing strategies designed for managing her condition, practicing mindfulness, CBT, etc) she has ongoing symptoms.”

18. On 7 April 2017, on reconsideration of the original Determination of 2 March 2017, Comcare affirmed that Determination. Unlike the original Determination, the reviewable decision contains references to many of the previous medical reports and contains detailed reasoning for the conclusions reached. It is appropriate the full reasons of the Delegate be set out – Exhibit 1 T270 pp. 932 – 933:

    “In relation to your condition of fibromyalgia, Dr Vecchio opined your fibromyalgia was constitutional and unrelated to your employment. Dr Wong informed that there was a wide potential association that has been linked with fibromyalgia including (although not exclusive causation by itself) genetic factors, environmental factors, sleep abnormalities, neurohormonal imbalance (hyperactivity of stress response) and perhaps peripheral pain mechanism. Dr Fridgant agreed your fibromyalgia was unrelated to your original claim and could be rolled out from your claim.

    In relation to your condition of Conversion Disorder, I note the first episode occurred in June 2006 while at a concert. I further note Dr Fridgant expressed the view that the factors associated with this relationship between work related stress and your condition were the conflict with another employee, workplace management of your complaints and apparently excessive and unmanageable demands on your performance. Dr Fridgant also considered there appeared to be an issue of unresolved conflict over a complaint by a person in your charge which appeared not to have been substantiated by further enquiries.

    I note your claim was for a physical injury caused by an excessive workload. Dr Fridgant has opined your condition developed as a result of work related stress including demands on your performance, conflict with another employee in the workplace, management’s response to your complaints and a complaint by an officer in your charge. As your initial claim was for a physical injury caused by excessive computer work, I consider the relationship between your work related stress and Conversion Disorder was not appropriately investigated.

    I note the relevance of Telstra Corporation Ltd v Hannaford to this reconsideration. As the Full Court of the Federal Court explained in Telstra Corporation Ltd v Hannaford, the Administrative Appeals Tribunal (when reviewing a decision that further compensation is not payable under sections 16 and 19 of the SRC Act) can ‘make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision…under section 14 of the SRC Act to accept liability. The same concept applies to Comcare in issuing or reviewing a determination.

    I am not satisfied on the evidence before me that your accepted conditions of fibromyalgia and Conversion Disorder arose out of, or were substantiated in the course of your employment.

    Therefore, I find you have not [sic] present entitlement to compensation for medical expenses and incapacity payments under sections 16 and 19 of the SRC Act.”

19. Apart from the reviewable decision of 7 April 2017, the Tribunal also has before it a reviewable decision of 4 September 2017 which varied two earlier Determinations (12 October 2016 and 1 March 2017 – Exhibit 2 ST 3 p. 1329 – 1330 and ST4 pp. 1331 – 1332). The earlier Determinations had determined that the Applicant was entitled to compensation for incapacity payments at a weekly rate of $1,007.39 for the respective periods of 13 October 2016 – 8 March 2017 and 9 March 2017 – 17 May 2017.

20. On its own motion, Comcare reconsidered the earlier Determinations and determined that from 2 March 2017 Comcare had no present liability for incapacity payments. Insofar as payments had been made beyond 1 March 2017, this had resulted in an overpayment of $11,081.29 – Exhibit 2 ST7 and ST8 pp. 1339 – 1343.

21. As Mr Clark pointed out, the resolution of the reviewable decisions of 7 April 2017 will automatically resolve the reviewable decision of 4 September 2017. Accordingly, the remainder of this determination will focus on the reviewable decision of 7 April 2017.

    MEDICAL REPORTS PREPARED AFTER THE REVIEWABLE DECISION OF 7 APRIL 2017

    Introduction

22. The Tribunal was presented with five reports that were prepared after the reviewable decision of 7 April 2017 was delivered, namely:

    (a)Mr George Haralambous, Clinical and Forensic Psychologist, 1 September 2017, Exhibit 14;

    (b)Dr William Knox, Psychiatrist, 7 September 2017, Exhibit 12;

    (c)Dr Christopher Cocks, General Adult and Forensic Psychiatrist, 25 September 2017, Exhibit 13;

    (d)Professor David Champion, Rheumatologist, 13 November 2017, Exhibit 15; and

    (e)Dr Vecchio, 2 August 2018 – Exhibit 20.

23. Each of these reports, and, in particular, that of Mr Haralambous, who was relied on by Comcare, are set out below.

    Mr George Haralambous – Clinical and forensic psychologist

    The report of Mr Haralambous of 1 September 2017

24. Mr Haralambous assessed the Applicant on 3 August 2017 and provided a 43 page report dated 1 September 2017 – Exhibit 14. The assessment was of 220 minutes duration and incorporated an interview of 125 minutes, administration of the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) lasting 45 minutes, administration of the Structured Inventory of Malingered Symptomatology (SIMS) of 10 minutes, and, finally the Test of Memory Malingering (TOMM) requiring 15 minutes. There was also a break of approximately 25 minutes.

25. The report of Mr Haralambous is extremely detailed and contains extensive references to academic research. At pages 3 – 7, he accurately sets out the history of the claim and between pages 7 and 12 sets out the Applicant’s treatment history, reported symptoms and functional abilities and relevant premorbid and personal history.

26. Of interest is the section headed “Review of the Accompanying Documents” which is located between pages 13 and 27. In this section Mr Haralambous outlines his critique of the various medical and employment reports which are set out earlier.

27. In some instances Mr Haralambous is critical of the diagnoses provided by some of the medical experts. With respect to the report of Dr Glaser of 27 December 2007, Mr Haralambous made the following observations – Exhibit 14 p. 15:

    “Dr Glaser states that Ms Cosgrove-Kaye’s condition is both a reaction to her ongoing pain and disability and also a response to psychological stressors which she experienced at the time of development of her physical problems, for example, unfavourable interactions with a new manager and having to cope with the distress of fellow staff members. However, Dr Glaser does not account for the absence of objective, identifiable medical pathology in relation to the ongoing reports of physical pain and physical disability as, for example, is indicated in the report dated 6 December 2007 of Dr Peter Stevenson, Consultant Physician, referred to above, and he does not appear to consider likely non-work related stressors which appear to have been included, but are not necessarily limited to, the stressors of parenting two very young children for an anxious and worrying individual with ‘perfectionistic personality traits’.”

28. Mr Haralambous was also critical of the views expressed by Dr Fridgant in his report of 17 May 2010. A theme that runs through much of Mr Haralambous’ report is the danger of relying on the self-reporting of symptoms and events. The following extract (with footnotes omitted) is indicative of this criticism – Exhibit 14 pp. 16 – 18:

    “Dr Fridgant hence appears to have been of the opinion that Ms Cosgrove-Kaye’s symptoms are likely to have remitted with removal from the workplace. However, Dr Fridgant does not appear to consider any predisposing or other contributing factors, he does not appear to consider the earlier observations of ‘work-related stress’ arising out of ‘entrenched beliefs about self-sacrifice’, an inclination ‘to avoid conflict’ and consequent tendency to be overly compliant, ‘overly high expectations of herself and rigid beliefs that she must avoid letting anyone down’ which ‘has been to the detriment of a balanced lifestyle’, and ‘unrealistically high standards which are linked to inflexible ‘all or nothing’ thinking patterns’ that ‘has led her to push herself inappropriately’ and to adopt a ‘boom and bust’ approach to activity…Moreover, although Dr Fridgant states that he has based his opinion on Ms Cosgrove-Kaye’s self-report, on ‘the series of events narrated to me during the initial assessment’, his assessment approach assumes adequate levels of self-insight that is widely regarded as limited in genuine cases of Conversion Disorder, and his opinion is based upon self-report despite a large body of research and professional literature that demonstrates;

    ·the susceptibility to errors of judgment and lack of reliability of opinions pertaining to psychological functioning when the opinions are based solely on a claimant’s self-report,

    ·the ease with which a wide range of psychological disorders can be misrepresented,

    ·that compensation is related to increased reports of pain and/or psychological dysfunction and decreased treatment efficacy,

    ·that reports of chronic pain and psychological dysfunction are often distorted and misrepresented,

    ·that even well-intentioned and experienced mental health practitioners can be easily misled, and

    ·that psychometric instruments have proven efficacy in establishing the validity of cognitive and psychological complaints and limitations [citations omitted].”

29. Similar criticisms were made of the 19 October 2010 report of Dr Zsadanyi (p. 19), and the 21 April 2011 report of Dr Sheehan (p. 21).

30. Mr Haralambous was also critical of aspects of the 29 May 2013 report of Professor Reid – Exhibit 14 p. 24:

    “Associate Professor Reid states with regard to the findings on the Pain Patient Profile (PPP) that Ms Cosgrove-Kaye endorsed significant levels of depression, anxiety, and somatic over-concern. He states that further detailed assessment of her personality, psychological state, and test taking attitude with the Personality Assessment Inventory (PAI) did not reveal any evidence of exaggeration of symptoms, but suggests that she is somatically preoccupied and reports symptoms consistent with a depressive experience, with thoughts of worthlessness, hopelessness, and personal failure. Associate Professor Reid concludes that, overall, the findings from the PAI are consistent with a DSM-IV diagnosis of Major Depressive Disorder, that Ms Cosgrove-Kaye also presents with symptoms consistent with a Somatisation Disorder, that he found no evidence of acquired cognitive impairment, and no evidence that Ms Cosgrove-Kaye was exaggerating her symptoms. However, the PPP does not contain any embedded measures to assess the validity of endorsed complaints and, although the PAI contains embedded validity measures, these, as indicated above, are not considered sufficiently comprehensive or sufficiently sensitive to exclude the possibility of symptom misrepresentation, especially in a case where the symptoms are not consistent with objectively verifiable pathology.”

1. Mr Haralambous dealt at some length with the psychological test results. He first outlined the MMPI-2 findings.

2. Mr Haralambous noted that the Applicant’s scores on scales that measure the tendency to convey an impression of excessive self-virtue and to portray oneself in an excessively positive light were not significantly elevated – Exhibit 14 p. 29.

3. However, Mr Haralambous went on to observe that – Exhibit 14 pp. 29 – 31 (footnotes omitted):

   “over-reporting of psychological dysfunction is suggested in the present case with the endorsement of a larger than average number of items pertaining to a wide range of experiences and manifestations of psychological disturbance that are rarely endorsed together…This level of infrequent responding may also be found amongst individuals with genuine, severe psychological difficulties who report credible symptoms, and Ms Cosgrove-Kaye did not endorse a large number of symptoms that have quasi or pseudo psychotic composition that are rarely described by individuals with even severe psychopathology of a psychotic nature…Possible over-reporting of somatic symptoms is nonetheless indicated in the present case with endorsement of a larger than average number of somatic symptoms that are rarely described by individuals with genuine medical problems…while over-reporting of cognitive disturbance is also indicated in the present case with the endorsement of an unusual combination of symptoms associated with non-credible reporting of cognitive complaints…. Furthermore, above 99.99% of adult females, Ms Cosgrove-Kaye endorsed, in a careful and non-random manner that appears deliberate, an unusual combination of symptoms associated with non-credible reporting of psychological, somatic and cognitive complaints that is more typically associated with symptom exaggeration and inauthentic accounts of psychological impairment amongst compensation-seeking individuals…Scores of this level on the FBS scale would not be expected and are unusual in genuine cases of psychological pathology, and generally cannot be accounted for by genuine psychological, cognitive, or somatic dysfunction, but are more often associated with the presence of external incentives…”

4. Despite this negative analysis, Mr Haralambous went on to note that the Applicant’s MMPI-2 scores were what one would expect of a person experiencing a conversion disorder, and also of a person diagnosed with a somatoform disorder, anxiety disorder and/or depressive disorder. Genuine persons with this profile may also show signs of depression, sleep disturbance, perplexity, despondency, feelings of hopelessness, pessimism, fatigue, have low energy and low sex drive – Exhibit 14 p. 31.

5. Mr Haralambous noted that the Applicant’s scores “endorsed” elevated levels of depression that warrant consideration of a major depressive disorder and generalised anxiety disorder– Exhibit 14 pp. 32 – 33.

6. The Applicant’s SIMS score was above the recommended cut-off score for the identification of exaggeration and/or embellishment of psychological symptomatology and suspected malingering – Exhibit 14 p. 34.

7. Conversely, the Applicant’s TOMM results were “unremarkable and not further interpretable” – Exhibit 14 p. 35.

8. After outlining the Applicants maladaptive personality traits, Mr Haralambous opined – Exhibit 14 p. 36:

   “The consequent manifestations of Conversion Disorder, which assume unconscious mental processes rather than conscious intent and/or conscious manipulation, appear to have arisen during the time of her employment with the Department of Treasury. However, for a number of reasons that are outlined below, it is in my opinion not objectively, firmly or unequivocally established that there is an actual relationship between the circumstances of Ms Cosgrove-Kaye’s employment and the onset of symptoms that she complains of, and the circumstances of Ms Cosgrove-Kaye’s employment do not in my opinion fully account for her purported symptom experiences for over 10 years to date.”

9. Mr Haralambous opined (Exhibit 14 pp. 36 – 37) that there was only a temporal connection between the Applicant’s employment and the complaints of widespread pain, and that at that time the Applicant was struggling with parenting two children as well as experiencing financial problems. Moreover, there was no clear relationship between the onset of syncopal like episodes in June 2009 and any actual, specific incidents or specific circumstances of her employment. Further the syncopal like episodes fluctuate in frequency and intensity irrespective of any actual identifiable stressors. Mr Haralambous observed – Exhibit 14 p. 37:

   “This suggests that the symptom experiences are internally mediated, and governed by internal, psychological processes that appear to bear little if any actual relationship to actual external, work-related events…the purported manifestations of Conversion Disorder appear to be following a course and trajectory that is unrelated to exposure to workplace stressors.”

10. Further, Mr Haralambous observed that the Applicant presented with manifestations of a generalised anxiety disorder which in her case appeared to be a pre-existing condition associated with behavioural inhibition, neuroticism, harm avoidance, parental overprotection during childhood and a genetic predisposition – Exhibit 14 p. 38.

11. Based on the psychometric scoring, Mr Haralambous could not “confidently exclude the possibility that the purported conversion symptoms in the current case are intentionally produced and/or feigned. The findings appear more consistent with conscious and deliberate exaggeration of psychological disturbance and/or exaggeration or embellishment of the negative circumstances from which the claim arises” – Exhibit 14 p. 39.

    Is Mr Haralambous a credible witness?

12. Mr Anforth, on behalf of the Applicant, submitted that Mr Haralambous is not a credible witness – Applicant’s Submissions (AS) para 12. It was submitted that Mr Haralambous displayed during his testimony the same combative and partisan attitude for which he was criticised by Anderson J in Martin v TAL Life Ltd [2015] VCC 921 (Martin) – Exhibit 21.

13. I have read the Martin decision and considered the observations of Anderson J. His Honour outlined how Mr Haralambous had conducted the MMPI-2, TOMM, as well as the Word Memory and the Rey Item Memory Tests. Without straying into unnecessary detail, Anderson J made the following observations (at [64]):

    “64. Mr Haralambous was a poor witness. He was argumentative and combative and would not concede the least point without initial obfuscation and pedantry. In his reports, Mr Haralambous was critical of the views expressed by the treating doctors and examining psychiatrists. He also said that ‘Dr Joffe appears to have transgressed the boundaries of his professional expertise’…

    71. … Although Mr Haralambous expressed his familiarity with the experts code of conduct, his performance as a witness was not, in my view, what should be expected of an expert witness.

    72. Mr Haralambous appeared to believe that as a consequence of the tests he had conducted, the statements by Mr Martin to his treating doctors and examining psychiatrists, could be altogether discounted and did not provide ‘objective or evidence-based measures of psychological functioning’.

    73. When Mr Haralambous was asked by Mr Gleeson whether he accepted that his ‘conclusion is that Mr Martin suffers from no mental illness’, Mr Haralambous responded, ‘my conclusion is that Mr Martin does not present with objectively verifiable manifestations of diagnosable pathology’.”

14. His Honour then quoted from another report prepared by Mr Haralambous where he claimed that Mr Martin was exaggerating and embellishing his symptoms for the purpose of advancing his insurance claim.  Anderson J rejected this “diagnosis” on the basis of the written and oral evidence before the Court.

15. Mr Anforth submitted (AS para 14) that Mr Haralambous was repetitively evasive in answering questions that had to be “reput” to him, has no medical qualifications and no training other than that undertaken as part of his psychology qualifications (AS para 20), was a regular expert witness for Comcare (AS para 24) and his report contained voluminous proforma footnotes and text which “he trots out” when giving evidence. Finally, Mr Anforth (AS para 25) called upon “the Tribunal to ‘name and shame’ Mr Haralambous in the manner as Anderson J in Martin.”

16. It is the case that Mr Haralambous gave, at times, verbose and “rigid” answers to questions put by Mr Anforth. Likewise, Mr Haralambous was critical of contrary views expressed by medical experts and was unwilling to concede almost anything. On more than one occasion the Tribunal had to intervene to encourage Mr Haralambous to answer questions that were asked of him by Mr Anforth. In short, the Tribunal was not impressed by the manner in which Mr Haralambous gave evidence.

17. However, the Tribunal also formed the view that Mr Haralambous firmly believed in the contents of his report and the conclusions found therein. Whilst his evidence was marked by an inability to concede his conclusions may be wrong, he was not evasive nor, with respect, pedantic.

18. Mr Anforth, quite properly, drew the Tribunal’s attention to the critical remarks of Anderson J, but my attention was also drawn to the judgment of Pembroke J of the New South Wales Supreme Court in Zahr v TAL Life Limited [2014] NSWSC 358 (Zahr) which was handed down a year before Martin.

19. Pembroke J made the following observations about the evidence of Mr Haralambous which is markedly at odds with the conclusions reached by Anderson J (at [10]):

    “Mr Haralambous was impressive, impartial and, I thought, fair. He has had thirty years of experience in the assessment of psychological and neuropsychological disorders and is a member of the College of Clinical Psychologists and the College of Forensic Psychologists of the Australian Psychological Society.”

20. Pembroke J then set out the psychometric assessment of Mr Zahr conducted by Haralambous, which included the MMPI-2 test, and concluded by observing (at [16]):

    “I should add that Mr Haralambous did not rely exclusively on an objective evaluation. His opinion as to whether a claimant such as the plaintiff is a reliable historian, is also derived in part from his interview with the patient and his consideration of the reports of other practitioners. So it was with the plaintiff. He added that he did not agree that the treating psychiatrist had a more significant place in the assessment of the claimant’s history and attributes. And he expressed the view that although treating psychiatrists are skilled clinicians, they do not always take the opportunity of asking informed interrogative questions.”

21. Pembroke J favoured the conclusions reached by Mr Haralambous over those of Mr Zahr’s treating psychiatrist, and said (at [31]):

    “It will now be clear that I have reached the conclusion that the plaintiff is malingering. Like Mr Haralambous, but unlike Dr Smith, I do not accept his evidence and do not regard him as a reliable witness. In addition, to all the usual means of assessing a witness’s credibility, I have had the unique advantage in this case of considering the results of the neuropsychological testing undertaken by Mr Haralambous. I accept the validity of his testing procedures and the conclusions that he reached. The results were consistent, unambiguous and compelling. There was no deviation from the common thread. Mr Haralambous’ central conclusion was that his findings do not ‘support the claim that Mr Zahr is genuinely incapacitated, on a psychological level, in a way that would prevent his return to full-time employment.”

22. As Mr Anforth has squarely put the issue of the credibility of Mr Haralambous’ report and testimony before the Tribunal, it is necessary to make the following observations.

23. First, Mr Anforth raised the issue in his written submissions and during his cross-examination of Mr Haralambous (Transcript (Tr.) p. 116) that he is a regular witness for Comcare but has never been called as a witness in the Tribunal for an applicant.

24. The absence of a history of giving evidence of an applicant’s claim is not, by itself, a matter that damages the credit of a witness. There was no suggestion of any substantiated conflict of interest or other financial consideration that would cause the Tribunal to doubt the honesty and integrity of Mr Haralambous.

25. Second, Mr Anforth correctly pointed out that sections of the report of Mr Haralambous were generic, and had been used in other reports. It was unfortunate that Mr Haralambous when questioned on this matter became unnecessarily evasive and defensive. There was nothing inherently wrong or remarkable with Mr Haralambous’ report. It did contain a generic section, but insofar as he was referring to academic literature and findings made therein, this was understandable. The important point is that his report was lengthy and comprehensive and did deal discretely and appropriately with the circumstances of the Applicant’s interview, testing and the conclusions drawn therefrom.

26. Mr Anforth then challenged the qualifications and training of Mr Haralambous. This challenge was comprehensively rebutted by Mr Clark in his Outlines of Submissions on behalf of the Respondent (OSR para 57). As with Pembroke J in Zahr, the Tribunal has no reason to doubt the experience, training and qualifications of Mr Haralambous.

27. The Tribunal, however, does not place inordinate weight on the psychometric testing undertaken by Mr Haralambous. Such testing is a useful tool and provides assistance to a tribunal of fact in some circumstances. However, it would be a mistake to assign undue weight to such testing. One of the errors with the evidence of Mr Haralambous was his dismissive attitude to the clinical opinions of the psychiatrists who had examined the Applicant over a number of years.

28. It is unnecessary to wade into the troubled waters of the jurisprudence of the expertise of psychologists to make a diagnosis. There will be occasions when the conclusions reached by a suitably trained psychologist will be preferred over the clinical judgment of a psychiatrist. This was the situation in Zahr. However, a tribunal of fact presented with a plethora of psychiatrist diagnoses by suitably trained psychiatrists against a report of a psychologist, would in the normal course have to be satisfied that there was something seriously amiss before preferring the findings of a psychologist. This could occur, for example, if the tribunal of fact finds that an applicant has lied to the psychiatrists or hidden from them key information. In short, if it was determined that the psychiatrists relied primarily on the self-reporting of an applicant, and those self-reports are wrong, exaggerated or incomplete, the diagnoses made would be undermined. This issue is dealt with further below

29. To sum up, the oral evidence of Mr Haralambous was less than ideal. Some of the criticisms made by Mr Anforth accurately describe what occurred when Mr Haralambous gave evidence. However, the Tribunal has no reason to doubt either the professional qualifications or experience of Mr Haralambous, or the truthfulness of his testimony. The Tribunal has no sound reason to doubt his credibility as a witness.

    Dr William Knox – Consultant psychiatrist

30. Dr Knox assessed the Applicant on 7 September 2017 and prepared a report of the same date – Exhibit 12. Dr Knox was asked to provide a report by the legal representatives of the Applicant.

31. Dr Knox first noted (Exhibit 12 p. 2) that the Applicant’s case was relatively complicated in respect of the actual nature of her health problems along with the difficulty of trying to understand the aetiology of her condition and the role of her previous employment in her health and disability.

32. Dr Knox referred to the “thoughtful” report of Mr Haralambous, and conceded that there was “some truth to his contentions”. However, Dr Knox did challenge Mr Haralambous on one point – Exhibit 12 pp. 2 – 3:

    “His suggestion that since Ms Cosgrove-Kaye has not been at work now for several years there can be no basis for involving work-experiences in her current health, clearly overlooks the fundamental fact that human beings have memory, and much of their experience and behaviour is shaped by the past. In this case there has been set in place a serious and complex psychological injury that has been present for many years, and is likely to continue for the rest of this woman’s life. Her injured identity has not changed since she left the workplace, and Mr Haralambous has not presented any evidence that it has.”

33. Dr Knox opined (Exhibit 2 p. 3) that the most significant triggers for the Applicant’s poor health, in the context of her very conscientious personality, was her interaction with her “difficult” manager who went on maternity leave, and problems with a new staff member who yelled and screamed at people. Dr Knox dealt with the Applicant’s personality issues as follows -Exhibit 12 p. 3:

    “it is important to understand that your client has a very conscientious personality style where partly arising out of her family environment, but for reasons ultimately unknown, she has always felt that she needs to be responsible for other people and put her own interest to one side in helping others including family and work colleagues.”

34. Noting that it was difficult to justify psychiatric aetiology in complicated cases like the Applicant’s, nonetheless Dr Knox opined that the Applicant’s arm and later more generalised upper body pain, arose not just from her physical workload but also as a result of the conflict with the new staff member. The Applicant told Dr Knox that “her reputation had been damaged in the face of these events.” Dr Knox then opined – Exhibit 12 p. 4:

    “My strong suggestion is that your client’s pain, ultimately likely a Somatoform Disorder (see DSM 5), emerged in a very challenging workplace situation for your client. Both physical and psychological factors have been at work.”

35. Dr Knox next dealt with the Applicant’s conversion disorder – Exhibit 12 p. 5:

    “Conversion Disorder is another form of Somatoform Disorder, and it is not surprising that a person developing an Occupational Overuse Syndrome might also manifest another form of psychological distress expressing itself physically. (Mr Haralambous has conflated the OOS/Somatic Symptom Disorder and Conversion Disorder – while they are both Somatoform Disorders they are distinct in DSM-5.)…

    She was not simply collapsing for an organic reason. This is again strong evidence that there were psychological stressors at work in this matter. Your client began to have more frequent attacks of reduced consciousness and physical collapse. These events were occurring as much as 10 times a day…

    Your client continued to have pain in her upper limbs and upper body. She also often had severe headache following these events.”

36. Next, Dr Knox turned to the report of Dr Vecchio wherein he had diagnosed the Applicant as suffering from a non-work related fibromyalgia condition – Exhibit 12 pp. 6 – 7:

    “Dr Vecchio has not offered any convincing evidence as to the disconnection between the condition and the workplace. Dr Vecchio himself concedes that he is not qualified to offer an expert opinion on any psychological factors in this case; of which there clearly are several.

    Not being able to include psychological issues in his diagnosis throws doubt on his purely phenomenological diagnosis of Fibromyalgia, although this woman’s pain and weakness conditions are a part of a far more complex syndrome beyond what is usually seen with Fibromyalgia, I contend. I think it is widely accepted within Medicine that Fibromyalgia is a very grey and poorly understood diagnosis in respect of its aetiology. It is insufficient to draw aetiological conclusions and other conclusions from simply a diagnosis of Fibromyalgia in the face of chronic pain and some other physical symptoms.

    Your client continues to have regular episodes of altered consciousness daily, hardly explicable with a diagnosis of Fibromyalgia…

    This woman’s Occupational Overuse Syndrome emerged in the context of this set of psychological symptoms, strongly suggesting that the two matters are related.”

1. It is unfortunate that this matter became side-tracked into an almost esoteric debate about competing medical theories. It is the case that Courts and Tribunals have over time, and on numerous occasions, recognised the validity of a diagnosis of chronic pain syndrome, whether it be regional or more widespread. Mr Anforth referred to my determination in McNamara and Comcare [2018] AATA 3688 as one example of this. However, he also referred to numerous decisions of the Supreme Courts of New South Wales, Victoria, Queensland and South Australia where chronic pain disorders have been accepted as compensable injuries – AS para 39.

2. It is also the case, as Logan J pointed out in Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641; 156 ALD 584, that pain per se is not an impairment (at[47]/594). However, his Honour then went on to observe that pain in some circumstances can constitute an aggravation of a pre-existing injury – [48]/595. It also follows that the onset of pain flowing from a workplace incident can itself become a compensable condition in its own right. Provided the pain results in an impairment and that the chain of causation from the onset of such impairment leads back to the workplace, then it can be a compensable condition in its own right.

3. As Mr Clark pointed out in his written submissions (OSR para 25), while Professor Champion is a highly regarded expert in pain medicine, and is the author of a number of learned articles on the subject, he holds a minority view amongst his medical colleagues. This became clear when I asked Professor Champion the following questions – Tr. 12.11.2018 pp. 144 – 145:

   “DEPUTY PRESIDENT: Can I ask a question, Doctor? You are a rheumatologist aren’t you? --- Primarily, yes, your Honour…

   I should have said Professor, and Professor, amongst your rheumatologist colleagues, would you be in the minority in your views on pain medicine? --- Well, I think I’m respected I ---

   I am sure you are. But, from what you are saying, there appears to be widespread resistance amongst some of your colleagues to some of the theses you are propounding? --- I don’t know that it’s active resistance, it’s a kind of passive, not doing anything about it, not thinking about it. But I was recently honoured in making a presentation 50 years after my first, by the Australian Rheumatology Association and so that’s all fine. It’s just that they’re slow learners.

   Are you the medical equivalent of the Little Engine that Could? --- Yes, I might be.”

4. Subsequently, Mr Clark also sought information on the acceptance of Professor Champion’s theses by his fellow rheumatologists – Tr. 12.11.2018 p. 151:

   “It was put to you by the Deputy President that your views may fall within a minority of general medical thinking at the time. What do you say to that? --- They’re not my views. They’re the views of the body of pain medicine. And it’s fair to say that in rheumatology, that would be a minority view still, through lack of understanding and knowledge. In the wider medical community, it would still be a minority view, because, as I explained to the Deputy President, it’s a relatively new field, and moving steadily forward with evidence, and extending more widely, ever-increasing numbers of people specialising and working in the field of pain medicine. But there’s a long way to go.”

5. Professor Champion was somewhat dismissive of the diagnoses of the other medical experts who examined and assessed the Applicant. This was due in no small part to the fact that only Professor Champion expounded his particular pain medicine theories. The Tribunal has no reason to doubt either the firmness and sincerity of Professor Champion’s belief in his pain sensitisation theories or the fact that this body of thought is propounded by a large number of experts in the pain medicine field. It may well be that in time the pain sensitisation theories propounded by Professor Champion, and other experts, will be accepted by the majority of their colleagues. This would not be the first time that an innovative and evolving theory, or theories, becomes accepted over time. In fact, in the field of psychiatric and neurological conditions it is commonplace. The diagnosis and treatment of persons suffering from Post-Traumatic Stress Disorder is a good example of this.

6. Nonetheless, the Tribunal, when presented with competing diagnoses should, unless there were good reasons to the contrary, prefer the diagnoses of those experts who represent the current and accepted strands of medical opinion. It would not be, unless there were good reasons advanced, a sound approach to embrace the views of a witness whose diagnosis stands alone and whose theories are not accepted by the majority of his or her area of speciality. The Tribunal agrees with Dr Vecchio’s observation that Professor Champion’s views on central pain sensitisation are a “reasonable but still unproved hypothesis for the situation we call fibromyalgia” – Tr. 12.11.2018 p. 162.

7. The Tribunal, therefore, accepts that the preferable diagnosis of the Applicant’s first condition is fibromyalgia.

8. During his examination-in-chief, Dr Vecchio made the following observations about fibromyalgia – Tr. 12.11.2018 p. 161:

   “there is a wide ranging debate as to what kind of condition is fibromyalgia? Is it a collection of painful points, is it a disease entity, is it a disease of the nervous system, it can be thought to be a musculoskeletal disease.”

9. Having highlighted the different strands of thought on this condition, Dr Vecchio then propounded his own theories – Tr. 12.11.2018 p. 161:

   “So the diathesis to me means that it’s a state of being, it’s a constitutional phenomenon, it’s something in the way that the body is wired up to be.”

10. Having regard to the evidence of Dr Vecchio, and considering the other medical reports on the Applicant’s fibromyalgia condition, it readily flows that the Applicant is suffering a disease, and the disease provisions of the Act apply.

11. Mr Clark submitted (OSR para 13) that the earliest reference to any diagnosis of fibromyalgia appeared in the 10 May 2011 report of Dr Barnsley – Exhibit 1 T142 p. 435. In fact, the Applicant was diagnosed as suffering from fibromyalgia by Dr Stevenson in his report of 6 December 2007 – Exhibit 1 T44 pp. 122 – 132. Dr Stevenson made the following diagnosis – Exhibit 1 T44 p. 126:

    “There seems no any specific pathology. There appears little evidence of purported previous diagnoses. There is non-specific pain in the upper half of the body, virtually of fibromyalgia pattern. Fibromyalgia is a pain amplification syndrome, determined predominantly by psychosocial factors and may be the best description.

    There was initial right elbow pain, but currently specific testing for epicondylitis is negative. ‘Complex regional pain syndrome’ appears inappropriate. It is a rare condition which requires objective neurovascular abnormalities for diagnosis. No objective neurovascular signs are present and none seen reliably recorded….

    There is obviously very considerable emotional distress and psychological illness. The importance of psychosocial factors in non-specific arm and neck pain is well established in the medical literature.

    Persons who are distressed and depressed have a very high incidence of medically inexplicable pain. It is more likely that Ms Cosgrove-Kaye’s pain relates to the perceived stressors of her employment, than to physical demand which sounds fairly modest.”

12. Further, the Applicant’s treating rheumatologist, Dr Wong, had been treating her for fibromyalgia since, at least, 2010. In his report to Dr Rauf-Rahim of 20 September 2010, Dr Wong observed – Exhibit 1 T102 p. 279:

    “Clinically she continues to have multiple trigger points on palpation. I do suspect that she has fibromyalgia with fatigue pain. I have asked her to continue with fibromyalgia management, which is Lyrica, antidepressant and analgesia. I do think that her problem with pain will be persistent and pervasive.”

13. Dr Wong repeated this pessimistic assessment of the prospects of any long term improvement in the Applicant’s pain condition in a report to Dr Rauf-Rahim dated 18 February 2011 – Exhibit 1 T123 p. 362.

14. The Tribunal accepts, nonetheless, the correctness of Mr Clark’s submission that the Applicant was diagnosed as suffering from fibromyalgia after 13 April 2007, being the assent date of the Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007, and consequently the significant degree test of workplace contribution applies.

15. Turning next to the report of Professor Barnsley of 10 May 2011, it is obvious that he was in no doubt that the Applicant’s first condition fell squarely within the label of fibromyalgia. First, Professor Barnsley opined – Exhibit 1 T142 p. 435:

    “the most contemporary assessments by Dr Wong…conclude that she has a chronic pain problem and I would agree that the investigations to date do not support a significant inflammatory problem…all assessors have commented on her having significant pain and this has attracted various rubrics but I believe that simply put, she has chronic regional pain syndrome (this is not a complex regional pain syndrome). Clinically, today I felt there was evidence of widespread fibromyalgic tender points and I believe that the diagnosis of chronic widespread pain or fibromyalgia is appropriate.”

16. It will be seen that Professor Barnsley used interchangeably the labels “chronic regional pain syndrome”, “chronic widespread pain” and “fibromyalgia”.

17. Next, Professor Barnsley opined that it was more likely than not that the Applicant would have ongoing problems with fibromyalgia and that “it is likely to continue indefinitely”. Further, he opined that it was more likely than not that the condition became permanent in 2008 – Exhibit 1 T142 p. 436.

18. Critically, Professor Barnsley opined that the Applicant’s fibromyalgia was likely to be related to work-based factors and opined – Exhibit 1 T142 p. 436:

    “Psychological stress has been identified as an independent risk factor for the development of chronic widespread pain and accepting the arguments put forward by the psychiatrists who have performed assessments of Ms Cosgrove-Kaye, I consider that work stress contributed significantly to the development of her depression. Also, the development of pain in the arm has also been shown to be associated with work-based factors, most notably a lack of control over the time of work and an inability to get all the duties done that are required of the individual.”

19. Professor Barnsley opined that he did not find any important contribution from anything outside her work-related illness and then concluded – Exhibit 1 T142 p. 437:

    “I consider that she does meet the criteria for having an objectively identified orthopaedic or neurological condition if one accepts that the tender points for fibromyalgia are indicative of neurological dysfunction, that is dysfunction within the pain system.”

20. Accordingly, until Dr Vecchio’s first report, there was a substantial body of rheumatological opinion that the Applicant was suffering from a work-related condition which was labelled “fibromyalgia”.

21. The only substantial point of difference with Dr Vecchio was not the label placed on the condition, but rather the degree of workplace contribution to it.

22. Dr Vecchio’s diagnosis was consistent with his theory of the cause or causes of fibromyalgia which he outlined during this testimony. He appeared to be firmly of the view that this condition is constitutional and chronic. Certainly, he opined in his first report that the Applicant’s fibromyalgia disorder was not due to her work.

23. Even if one accepts, as the Tribunal does, that the pathogenesis of fibromyalgia is still unknown and unclear and the aetiology of the condition may be multifactorial, nonetheless there was a clear consensus of medical opinion, other than with Dr Vecchio, that whatever label is placed on the Applicant’s pain condition, its origins lie in the workplace incidents described earlier. If one puts to one side the particular pain theories expounded by Professor Champion, it is clear that he is of the opinion that the Applicant’s pain condition was caused by her experiences in the workplace. This also was the view of Dr Stevenson, Dr Wong and Professor Barnsley. Indeed, it is instructive to read the report of Dr Dowda of 30 May 2013, wherein he referred, inter alia, to the various diagnoses of fibromyalgia made by various rheumatologists. He went on to observe – Exhibit 1 T210 p. 726:

    “I do not think that there is any indication for further specialist examinations.

    Comcare has already requested 15 independent examinations conducted by specialists from MLCOA as well as the various medical examinations carried out by other independent/treating doctors that have given, I believe, a reasonably clear indication over a long period of time of what Ms Cosgrove-Kaye’s situation is.”

24. The only contrary points of view put the Tribunal were expressed by Dr Vecchio, and, in part, by Dr Fridgant. In the latter case, Dr Fridgant opined that the Applicant’s fibromyalgia condition did not relate to the original claim and could be “rolled out” from the compensable condition of conversion syndrome – Exhibit 1 T266 p. 921. This “diagnosis” was given without much explanation and, with due respect to Dr Fridgant, concerning an area of medicine for which he is not an expert. Dr Fridgant did not hold himself out as specialist in pain medicine and the Tribunal prefers the preponderance of opinion of those professionals who have examined and assessed the Applicant and can express an expert rheumatological opinion and provide a sound diagnosis.

25. His Honour Justice Madgwick in Abrahams v Comcare [2006] FCA 1829 observed that medical diagnoses can change over time – (at [21]):

    “Nothing is more common than that medical diagnoses change and evolve, or are or become various.”

26. Further, it is not an absolute requirement that a definitive label or diagnosis be ascribed to a particular “injury”. His Honour Justice Burchett in Australian Postal Corporation v Lucas (1991) 33 FCR 101 at 108 said:

    “given that an incapacitating condition is satisfactorily shown, the mere fact that the diagnosis of its medical nature may not be able to be made precisely, though obviously a factor which might militate against a finding of a causal link with employment, will not necessarily present an insuperable obstacle to such a finding. It must depend on the evidence.”

27. Here the Applicant’s pain condition has been ascribed different labels over the years. However, stripped of the nomenclature, it is tolerably clear that the preponderance of medical specialists who have examined and assessed the Applicant have concluded that she has a chronic pain condition whose origin lies in the workplace incidents described previously. Reference can be made to the oft quoted observations of Drummond J in Comcare v Mooi (1996) 69 FCR 439 at 443 – 444:

    “There may be difficulties in a particular case in determining whether a bodily condition, ie, one not involving any effect on a person’s mental faculties, amounts to a disease; it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion. But these considerations, in my opinion, provide no ground for disregarding the meaning given by the various definition provisions to the term ‘injury’ for the purpose of s 14(1) of the Act.

    The definition provisions, which bring within the concept of ‘injury’ mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee’s mental condition is within the concept of an ‘injury’ within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe…But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensible [sic] under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.”

28. The Tribunal is satisfied that whatever label is ascribed to the Applicant’s pain condition, the impact it has had on her places her squarely within the category of persons described by Drummond J who are in a condition that is outside the boundaries of normal mental functioning and behaviour.

29. Two further matters require ventilation.

30. As previously highlighted, Dr Wong opined in his report of 26 February 2017 that the origin and causes of fibromyalgia are still unknown, there not being a biochemical diagnostic test to resolve this matter. Further, he observed that fibromyalgia had been associated with a range of possible factors including, genetic, environmental and sleep deprivation. The preponderance of expert opinion suggested that the onset of fibromyalgia in this instance correlated with workplace incidents at the Commonwealth Treasury.

31. A different point of view was ventilated by Dr Vecchio. He proceeded on the assumption that the Applicant’s fibromyalgia condition was constitutional and chronic. As noted earlier, the Tribunal does not prefer this hypothesis over the assessment of the other experts. However, even if one accepts that the Applicant did have a pre-existing condition, then the evidence presented leads to the conclusion that the workplace incidents aggravated her condition. As Windeyer J observed in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593, aggravation “means, I think, that an existing disease has been made worse, not that it has simply become worse”.

32. If one accepts (and the Tribunal does not prefer this hypothesis) that the Applicant was suffering from a constitutional condition of fibromyalgia, then the evidence fairly discloses that the workplace incidents considerably worsened this underlying condition and accelerated the bodily spread of it and exacerbated the pain experienced as a result of it.

33. The second matter that needs to be addressed is the factors that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by the employment. Those factors are set out in s 5B(2), and are as follows:

    (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.

34. It is the case, as Dr Fridgant pointed out in his report of 2 March 2010 (Exhibit 5), that the Applicant “has a personality structure conducive to obsessional worry and readily accepts description of herself as an ‘anxiously conscientious’ person.”

35. It is also the case, as Dr Vecchio highlighted in his supplementary report of 2 August 2018 (Exhibit 20), that the Applicant is prone to catastrophisation.

36. A fair reading of the evidence also discloses that there have been a number of other significant stressors in the Applicant’s life. The Applicant and her husband have suffered from financial troubles and there have been serious health issues with at least one of their two children.

1. It was pointed out by Dr Vecchio and Mr Haralambous, that the workplace incidents at Commonwealth Treasury were, in the scheme of things, relatively minor, were of relatively short duration and occurred more than a decade ago. A reasonable and objective conclusion that could be drawn, it was suggested, was that any workplace stress induced health issues should have long since resolved themselves.

2. The Tribunal accepts that all of these are valid observations, and a “normal” person would not have been affected in the manner that the Applicant was. As previously pointed out, the issue to be resolved is not whether the Applicant was an emotionally fragile person who may have over-reacted to incidents in the workplace, but, rather, whether the workplace incidents, contributed, to a significant degree, to the onset or aggravation or her ailment. As Mr Anforth pointed out, an employer takes an employee as that person is. It is not a threshold requirement to obtain workers’ compensation that a person must demonstrate that they have no predispositions or are not more susceptible than others to being injured. As a general rule, the workplace contribution test is agnostic when it comes to a worker’s state of health, and focuses on the impact of the workplace on the person. That is why s 5B(2) sets out factors that guide a decision-making in assessing the degree of workplace contribution.

3. It is often the case when dealing with mental ailments that there are multiple factors that, together, result in an employee becoming unwell. It may well be that non-work factors will play a role, and perhaps a large role, in an employee becoming unwell. It has long been recognised, however, that it is not a precondition for the acceptance of liability pursuant to s 14, that only workplace factors have contributed to the compensable disease – see Havnen and Comcare [2010] AATA 535 at [66]. In this regard, the Tribunal accepts that the Applicant’s fibromyalgia was negatively impacted by non-workplace factors, including her own personality, financial worries and family health issues. The question to be resolved is, absent non-workplace factors, did the employee’s employment contribute, to a significant degree, to the onset or aggravation of the employee’s ailment?

4. Having regard to the evidence presented, the Tribunal finds that the workplace events of 2006, and subsequently, did contribute, to a significant degree, to the onset (or aggravation) of her ailment, which has been labelled as “fibromyalgia”. In reaching this conclusion, the Tribunal applies the test of significant contribution as explained by Katzmann J in Comcare v Power (2015) 238 FCR 187 at 201 – 205.

5. Having regard to the evidence presented, and the legal principles previously outlined, the Tribunal makes the following findings:

   (a) the Applicant suffers from a pain condition which is most commonly labelled fibromyalgia;

   (b) the Applicant’s fibromyalgia condition is an ailment and falls to be considered under the disease provisions of the Act;

   (c) this pain condition has its origins in the workplace incidents described earlier;

   (d) the Applicant continues to be afflicted by this ailment;

   (e) the Applicant was first authoritatively diagnosed with this condition after the assent of the 2007 amendments to the Act, and therefore the workplace contribution test of “a significant degree” applies; and

   (f) the Tribunal is satisfied that the Applicant’s fibromyalgia condition was contributed, to a significant degree, by her employment with the Commonwealth Treasury.

   Conversion disorder

6. There is near unanimous medical evidence before the Tribunal that the Applicant is suffering from a psychiatric condition which has been labelled “conversion disorder”. Even Mr Haralambous, whose report of 1 September 2017 (Exhibit 14) cast some doubt on this diagnosis, conceded during cross-examination that he “would give her the benefit of the doubt that the symptoms are not consciously produced” – Tr. 12.11.2018 p. 137.

7. A conversion disorder is a rare condition, and is one where a degree of caution has to be exercised before it is accepted that an employee suffers from this ailment. This is the case as its origins and treatments are unclear.  It is a diagnosis of relatively recent origin, and is one that is susceptible of being feigned. In this context, it was extremely important for the Tribunal to reach a conclusion as to whether the Applicant had, to any particular degree, consciously exaggerated her symptoms, or, indeed, engaged in feigning or pretending.

8. As explained above, the Tribunal is satisfied that the Applicant has not consciously exaggerated her condition or engaged in feigning or pretending behaviour. On the contrary, the Tribunal formed a favourable view of the honesty and sincerity of the Applicant, and agrees with the many medical experts who have examined and assessed her, that she is a person of credit who is, in fact, suffering from a mental condition which is currently labelled as “conversion disorder”.

9. Of particular significance in this matter was the report of Dr Cocks. Dr Cocks had been briefed to examine and assess the Applicant by the legal representatives for Comcare. His medical report of 25 September 2017 (Exhibit 13) is clearly written and provides a compelling case for accepting that the Applicant does indeed suffer from a conversion disorder whose origins lie with her experiences as an employee of the Commonwealth Treasury.

10. As Dr Cocks report has been summarised previously, it is only necessary to quote the following extract – Exhibit 13 p. 10:

    “Mrs Cosgrove-Kaye developed neurological symptoms in 2009, with episodes of loss of consciousness (drop attacks) that currently persist. No organic cause has been found to explain the neurological symptoms. This is despite extensive neurological and cardiovascular examinations by specialists within their respective fields. As outlined in my report there is recurrent medical specialist opinion that Mrs Cosgrove-Kaye suffers from a conversion disorder. There is a consistency of specialist opinion that Mrs Cosgrove-Kaye’s conversion disorder arose out of the course of her employment as an administrative manager with The Department of Treasury. Psychosocial stress within the workplace has been identified as having an association with the onset of Mrs Cosgrove-Kaye’s neurological symptoms. She has suffered significant occupational and social impairment secondary to the conversion disorder. From my assessment of Mrs Cosgrove-Kaye, and from the medical information made available to me, there is no evidence of feigning.”

11. Mr Clark has repeatedly made the point that diagnosis of psychiatric conditions is heavily dependent on the information given to the assessing specialist. In the Outline of Submissions on Behalf of the Respondent, Mr Clark set out at length what he said where inconsistencies and omissions in the Applicant’s reporting of the workplace incidents and related matters. In particular, Mr Clark draws to the Tribunal’s attention various contemporaneous reports from 2006 - 2007 where there is no mention by the Applicant of workplace stressors – OSR para 35.

12. Whist the Tribunal accepts that there were omissions in the Applicant’s account of what was occurring in the workplace in 2006, there is no reason for the Tribunal to seriously doubt the Applicant’s version of events. No evidence has been produced to cast any doubt on how the Applicant described the workplace incidents.

13. Whilst it was open and appropriate for Mr Clark to draw to the Tribunal’s attention any shortcomings in the Applicant’s evidence, the Tribunal is satisfied that the workplace stressors explained by the Applicant did in fact occur, and did have the deleterious psychiatric consequences as explained by Dr Cocks.

14. At the end of the day the Tribunal has been presented with a number of psychiatric reports by various specialists who are unanimous in diagnosing the Applicant with a work-related conversion disorder. The Tribunal has found the Applicant to be a witness of credit and a person who has not consciously exaggerated her symptoms or engaged in a campaign of feigning. Further, and while accepting some omissions in her earlier statements about workplace stressors, the Tribunal accepts the truth of the Applicant’s account of the workplace stressors of 2006 and thereafter. In short, there is no basis for the Tribunal rejecting the Applicant’s case as expounded by Mr Anforth.

15. The Tribunal therefore finds:

    (a) the Applicant suffers from a mental ailment which is currently labelled a “conversion disorder”;

    (b) this disease had its origins in the workplace stressors of 2006 and thereafter;

    (c) the workplace stressors contributed, to a significant degree, to the onset of this condition in 2009;

    (d) the Applicant’s evidence about the workplace stressors of 2006 are factual and are accepted.

    DECISION

16. The Tribunal:

    (a) sets aside the reviewable decisions 2017/2186, 2017/5501 and 2017/5765;

    (b) remits these decisions to Comcare for appropriate action in accordance with this decision;

    (c) allows the Applicant 28 days from the date of this decision to make any application for costs.

………………………………………

Associate

I certify that the preceding 285 (two hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President John Sosso.

Dated: 7 June 2019

Date of hearing: 6 - 7 August 2018 and resumed on 12 November 2018

Date of final submissions: 31 January 2019

Counsel for the Applicant: Mr Allan Anforth

Solicitor for the Applicant: Mr Nigel Gabbedy, Gabbedy Milson Lee

Counsel for the Respondent: Mr Charles Clark

Solicitor for the Respondent: Mr Peter Snell, Lehmann Snell Lawyers