Harriss and Comcare (Compensation)

Harriss and Comcare (Compensation) [2021] AATA 4605 (13 December 2021)
Division:GENERAL DIVISION
File Numbers: 2018/7510
2020/8330
Re:Ms Margaret R Harriss
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms A E Burke, AO Member
Date:13 December 2021
Place:Melbourne

The Tribunal, having considered all the evidence before it, affirms the decisions under review.
The Tribunal determines that on and from 22 October 2020, Ms Harriss did not continue to suffer from occupational overuse syndrome.
The Tribunal, having considered all the evidence before it, determines that Ms Harriss was entitled to reduced household services of:
(a) Household cleaning services for two hours per fortnight from 1 November 2018 to 22 October 2020;
(b) Lawn mowing services for two and a half hours every fortnight, during the period of 1 November 2018 to 31 March 2019; and
(c) Lawn mowing services for two and a half hours every 3 weeks, during the period of 1 April 2018 to 31 October 2019.

..............................[sgd]..........................................
Ms A E Burke, AO Member
Catchwords
COMPENSATION – household services – cleaning – accepted condition –– occupational overuse syndrome – reduced household services – ceased household services – reasonable standard of home maintenance – no present liability – decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Ms A E Burke, AO Member
13 December 2021

Ms Margaret Harriss (the Applicant) seeks review of two decisions made by Comcare (the Respondent) pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The first is a decision accepting liability for household services under section 29 of the SRC Act (application number 2018/7510). The second decision under review is a determination by Comcare that there is no present liability for medical or household expenses under sections 16 and 29 of the SRC Act (application number 2020/8330).
Ms Harriss commenced employment with the Federal Public Service in 1980, initially with the Department of Defence, then the Department of Education. In 1985 she commenced working at the Aboriginal and Torres Strait Islander Commission (ATSIC). She left ATSIC in July 2004 and worked intermittently for various employers until she retired in 2013.
Since 1997 she has been receiving a range of benefits including medical treatment, incapacity benefits (partial and total incapacity to work) and household assistance (cleaning and gardening) for her accepted Comcare claim of occupational overuse syndrome.
Ms Harriss has made a series of Comcare claims in respect of injuries:
Date of Injury             Claimed condition
1 July 1989                 Episode of situational stress
15 August 1994          Aggravation of a pre-existing ganglion to the right wrist
25 August 1995          Condition involving soft tissue injuries to both knees and legs
26 April 1997              Aggravation of occupational overuse syndrome
On 29 May 1997, Ms Harriss lodged a claim for compensation under the SRC Act for occupational overuse syndrome. In this claim she noted the injury was first noticed in February 1997 when she experienced ‘extreme pain in right wrist and hand, pain in forearm and elbow, occasional shoulder pain’ while at her desk. Ms Harriss stated she first received medical treatment for this condition in 1992. She noted that in March 1997, she took on additional tasks involving an increased keyboard workload.
On 4 March 1998, Ms Harriss first requested household and gardening assistance to manage her condition and cope with activities she was unable to deal with herself. She again requested ongoing support with household assistance on 18 April 1998.
On 30 April 1998 Comcare approved household assistance; the letter advised:
Based on the available evidence and the fact that provision of home help will assist the return to work process, I have approved home help at 3 hours per fortnight and gardening assistance at 3 hours per month to 31/7/1998.
On 5 July 1998, Dr Kevin Gow, Ms Harriss’ general practitioner, wrote to Comcare seeking household services for Ms Harriss as part of her treatment and rehabilitation. He advised that she required house cleaning for three hours per fortnight and gardening for three hours per month.
Since 1998. the level of household services which Ms Harriss received from Comcare has varied:
(a)Comcare extended cleaning services for three hours per fortnight and gardening for three hours per month until 15 January 2001;
(b)Then two hours per fortnight for household help and two hours per fortnight for gardening from 16 January to 31 March 2001;
(c)From 1 April to 30 August 2001, two hours per fortnight of household help;
(d)From 31 August to 30 November 2001, three hours per week of household help and three hours per fortnight of gardening;
(e)From 1 December 2001 to 31 January 2002, two hours per week of household help and one hour per week of gardening assistance;
(f)From 1 February to 30 August 2002, two hours per week of household help and two hours per fortnight of gardening;
(g)From 31 August to 15 November 2002, three hours per fortnight for cleaning and three hours per fortnight for gardening;
(h)From 16 November 2002 to 31 December 2007, three hours per fortnight of cleaning services and three hours per month of gardening;
(i)From 1 January to 30 April 2009, four hours per fortnight for cleaning and three hours per month for gardening;
(j)From 1 May 2009 to 30 January 2012, four hours per fortnight for cleaning services and three hours per fortnight of gardening;
(k)From 31 January 2012 to 30 November 2018, two hours per week for cleaning and two and half hours per week of gardening;
On 15 November 2002, Comcare determined Ms Harriss was no longer entitled to compensation benefits under sections 16, 29(1) or 19 of the SRC Act based on the medical report of Doctor Neil McGill, consultant rheumatologist, who opined that Ms Harriss’ current symptoms were neither caused nor aggravated by her work in the past or due to her current work. The Comcare claim manager provided the following statement as background and reasons for this decision:
On 26 April 1997, you consulted your treater, Dr Gow, in relation to pain in your right wrist and hand, pain in forearm and elbow and occasional shoulder pain. Dr Gow certified you as unfit for work from 28th April 1997 to 2nd May 1997.
Comcare accepted liability for occupational overuse syndrome.
Comcare received a report dated 04/01/1998 from Dr Gow, stating he diagnosed you as having a recurrence of an Occupational Overuse Syndrome. In 1997, Dr Gow first certified in a medical certificate dated 26/04/1997, that you are unfit for work from 28/04/1997 to 02/05/1197 and that your condition will be reviewed on.10/05/1997. He recommended acupuncture and anti-inflammatory medication.
On 6th January 1998, you commenced rehabilitation. A workplace assessment and a home assessment were conducted.
On 25th February 1998, Comcare received a further report from Dr Gow, who recommended ATSIC, your employer to purchase a voice activated computer, in order for you to return to work and to continue to work without future exacerbations or recurrences of your condition.
Comcare next arranged for you to be examined by Dr R Whittaker, Consultant Rheumatologist, on 20th March 1998. Dr Whittaker diagnosed you as suffering from regional pain syndrome in both forearms, the right hand side being most affected. Dr Whittaker recommended that you take analgesics, a gentle stretching program and to continue to be reviewed by a psychologist.
Comcare extended home help and gardening assistance to you in 1998 and repeated extensions were given on a continued basis from 1998 to date. According to the last available information, you live in your own flat alone. The flat has one bedroom, and one bathroom with separate lounge and dining area.
There were numerous attempts to place you in suitable and meaningful duties within ATSIC graduating to full time hours. The attempts made in this respect initially, were not successful, and you were later found suitable duties at ACT Housing. You commenced work on 4th May 1998. You workstation was ergonomically adjusted and you were provided with a headset and a voice activated computer.
Dr Gow certified you to work 3 hours per day, Monday, Wednesday and Friday. It was made clear that your duties did not include any deadline and project work.
On 14 August 1998, you commenced massage treatment. Dr Gow referred you to have massage as part of your rehabilitation.
You next increased your hours to 12 hours per week on and from 28 September 1998. On 3 November1998, Dr Gow recommended a pacing program.
On 23 November 1998, your psychologist Dr J Higgins had requested Comcare to approve another 12 sessions of psychological treatment. Comcare approved these sessions.
You gradually increased your hours to 5 hours per day, on and from 20/1/99. Then increased your hours to 6 from 11th March 1999.
On 21 May 1999, Dr Gow certified you as fit to increase your hours to 7 hours per day, 3 days. per week. It was agreed for the rehabilitation plan to be closed and Dr Gow had certified for you to work 2 days at work and one day at home.
In 1999, Comcare arranged for you to be re-assessed by Dr Whittaker and to be reviewed by Dr Duke, Psychiatrist.
In Dr Duke's report dated 26/11/99, he states the following:-
"Ms Harriss suffers from a pain disorder associated with both psychological factors and general medical condition. The general medical condition is OOS. The psychological factors are nonetheless judged to have an important role in the onset, severity, maintenance or exacerbation of pain. The psychological variables are related predominantly to personality rather than illness aspects."(My emphasis).
In Dr Whittaker's (Consultant Rheumatologist) report dated 31/12/1999, he stated:-
"Ms Harriss' current treatment is not inappropriate. However, there is no evidence that prolonged massage therapy is going to significantly improve her vocational or capabilities. It may improve her situation on a temporary basis to allow her to continue on at work." (My emphasis)
"However, I did note that Ms Harriss had been contemplating setting up and e-commerce venture from home. If this was being considered, it is not unreasonable to suggest that she may have a somewhat greater work capacity than that which she is currently performing with Department of Housing." (My emphasis)
On 16th December 1999, you were unfit for work due to a non work related fall, which wrenched your knee.
In a report dated 24th February 2000, Dr Ross Whittaker expressed the view, that "the Claimant has the physical capability of returning to alternative duties within ATSIC but the claimant had informed him that she has no intention of returning to work at ATSIC. He also commented that the claimant could gradually upgrade her hours to full time over the next 12 months .... "
Dr Whittaker also reported;
"I specifically asked Ms Harriss with regard to her performing any additional work at home. She informed me that she wished to commence an e-commerce venture based from home. However she informed me that she had not followed through on this. However my feeling is that Ms Harriss was not being entirely forthright with me with regard to her continued pursuit of alternate work .............. " (My emphasis)
You next commenced work with A TSIC on February 2000. You would work 7 hours pacing three days per week (Monday, Wednesday and Friday). On Fridays, and would work at home doing non-computer work.
On 6 September 2000, it was decided to close the last rehabilitation plan.
On 11 September 2000, you consulted a new doctor, Dr J Brown. Dr Brown certified you to work 3 days per week, and to continue home help assistance, massage, counselling, Pilates and pain management.
On 6 December 2000, you commenced another gradual return to work plan. You commenced work 3 hours per day, 3 days per week and gradually increased your hours to 20 hours per week by 5 June 2001.
Then Dr Brown certified you to work 6.5 hours per day, 3 days per week and to continue with your medical treatments.
In August 2001 you were assessed by Dr Kenneth Muirden, Rheumatologist, who expressed the views in his report dated 06/08/2001 in the following manner;
"Ms Harriss presented as a grossly over weight woman weighing 114 kg. Her condition is fibromyalgia which is multifactorial in origin and there are possibly other psychological factors that impact on its development. However I consider that the development of the condition has been influenced in a significant way by her employment with ATSIC ....... and I have not been able to determine that the fibromyalgia predated her workplace stressors and the onset of her condition".
You were finally assessed by Dr Neil McGill, Consultant Rheumatologist on 23 September 2002.
Dr McGill took a careful history from you and commented that all of the information and opinions expressed in the report is based on the history provided by you at the time of the assessment. Dr McGill also commented that he will be happy to provide a supplementary report when detailed documentation and medical materials are provided by Comcare, to clarify any issues in his report. Accordingly, Comcare forwarded a copy of your file with all available medical material and sought a supplementary report.
Dr McGill first expressed the opinion in his report of 23rd September 2002, based purely on the information provided by you, and thereafter based on your clinical examination in the following manner;
"She is currently working three full days per week and one 2 hour day per week. .. .. ". She stated the onset of her symptoms to 1989 .... She continued her normal duties. She today reported that she was work obsessed ... In mid 1995 she was promoted on a temporary basis to a higher position in the Department of Transport. .... In 1996 she was forced to return to ATSIC .... In April 1997 she talked to her case manager about her level of pain. In July 1997 she commenced another job which involved the development and introduction of Corporate intranet ... She ceased work in mid 1997 and the original plan was for her to be off work for one month. She actually returned to work on 20/04/1998. She felt unable to return to work and then did a period of work, three days per week, and 3 hours per day for ACT Housing.
Dr McGill also recorded; "by September 1999 she felt well enough to go on a previously planned holiday. She then spent ten weeks travelling to places including Fiji, Canada, USA, Europe and Bali ... " (My emphasis)
After returning home from her trip she injured her right knee while walking upstairs from her hairdresser. The period away from work between September 1999 and January 2000 was recreational leave.
….
Your current condition is not work related. You no longer suffer from a work related injury. Your employer has expressed willingness since 1998 to offer you suitable full time duties. Dr McGill also opined "I do not think there is a genuine physical need for voice activated software ... "
In the medical report dated 08/ 11/ 2002 by D. G.E Eaton Occupational Physician and addressed to Dr J.V. Brown, he states 'apparently a rheumatologist who saw her on behalf of Comcare believed that Ms Harriss did not have a work related condition and diagnosed fibromyalgia .. .. ... .. Unfortunately not all practitioners acknowledge the concept or the diagnosis of Regional Pain Syndrome and Occupational overuse injuries. I do not believe that Margaret has a very established permanent condition which at best can only be reasonable well managed and controlled .. . "
In his supplementary report dated 25th October 2002, Dr Neil W McGill, commented;
I confirm my previous view that I do not believe that her current symptoms are the result of either by cause or aggravation the physical aspects of her work in the past or currently ...... I do not believe there is any physical requirement for a restriction of her duties and I think she is physically fit to perform full time work with ATSIC. Dr McGill also commented that the need for treatment is not work related.
I note that the diagnosis of fibromyalgia was also confirmed by Dr Muirden, Rheumatologist, when he examined you in August 2001. In a report dated 24^th February 2000, Dr Whittaker Rheumatologist expressed the view that you have physical capability of returning to alternate work on a full time basis, but he commented in the history that you have informed him that you have no intention of returning to work at ATSIC. (My emphasis)
You were initially expected to return to full time work as far back as in 1997. You were provided with rehabilitation and all other assistance including a voice activated computer. The employer has been willing to provide with modified duties taking into consideration any non work related conditions you may currently suffer from. Your treater, Dr JV Brown or Dr GE Eaton/ has disputed the diagnoses of fibromyalgia but have not clearly indicated that you are incapacitated for suitable work. In fact Dr McGill in his supplementary report commented “I note that my opinions in some ways agree and in other ways disagree from the views of others. I agree with Dr Muirden that the appropriate diagnostic label for her pattern of symptoms is fibromyalgia.
In fact Dr McGill arrived at this diagnoses at his examination, when no past medical material was before him and based purely on the history you gave him and also from his clinical examination. His diagnosis was again confirmed when all the medical material was placed before him subsequently.
On 27 February 2003, a Comcare Independent Review Officer determined that the decision of 15 November 2002 could not be sustained as the weight of the medical evidence did not establish a discontinuity between Ms Harriss’ current symptoms and the symptoms for which liability had previously been accepted. The Review Officer determined:
I am not convinced that the Employee cannot perform the tasks that she undertook prior to her compensable injury, bearing in mind that she was only required to perform minor chores. Accordingly, I consider that the decision to deny liability to pay compensation, on and from 25 November 2002, for household cleaning, in respect of the compensable injury, was correct.
…….
In substitution therefore, I determine that liability continues for the Employee’s “occupational overuse syndrome" and to pay compensation, on and from 25 November 2002, for:
·Hydrotherapy once per week, pursuant to Section 16 of the Act up to and including 25 May 2003;
·Gardening assistance 3 hours per month, pursuant to section 29 of the Act; and
·Incapacity payments pursuant to section 19 of the Act.
On 4 April 2003, Ms Harriss appealed this determination to the AAT as she believed that ‘the determination regarding entitlement to household help I believe to be unjust and the reasons for the determination to be flawed’.
On 11 September 2003, a Comcare Independent Review Officer advised Ms Harriss that:
In the circumstances, I consider that it would be reasonable to provide the Employee with limited household services. I therefore consider the determination of 15 November 2002 should be revoked in respect of household services and in substitution determine that the Employee is entitled to three hours of household services, per fortnight, up to and including 31 October 2003.
On 16 August 2018, Ms Harriss advised that from 22 August 2018 she would be moving into a new home in Wonthaggi, Victoria, and submitted a request for household services in respect of her new home.
On 4 September 2018, Mr Tim Angel, occupational therapist, undertook an assessment of Ms Harriss’ new home to evaluate her needs for home help, and produced a report dated 7 September 2018.

On 17 September 2018, Comcare determined Ms Harriss was entitled to receive the following in respect of home help:
(a)Household cleaning services for two hours per fortnight, covering the period from 1 November 2018 to 31 October 2019;
(b)Lawn mowing services for two and a half hours every fortnight, covering the period from 1 November 2018 to 31 March 2019; and
(c)Lawn mowing services for two and a half hours every three weeks, covering the period from 1 April 2018 to 31 October 2019.
On 6 November 2018, Comcare affirmed the primary determination of 17 September 2018 accepting liability under section 29 of the SRC Act in respect of home help of cleaning services for two hours per fortnight from November 2018 to October 2010, lawn mowing for two and a half hours per fortnight from November 2018 to March 2019, and two and a half hours every three weeks from April to October. The delegate advised the decision was based on Ms Harriss’ accepted occupational overuse syndrome, with a date of injury of 26 April 1997 and informed by occupational therapist Mr Tim Angel’s report. The delegate advised Mr Angel had undertaken an Activities of Daily Living Assessment (ADL) on 4 September 2018 at Ms Harriss’ home and spoke with Ms Harriss’ general practitioner, Dr Sleshkumar Bamaurrun. Dr Bamaurrun agreed that Ms Harriss had capacity to complete basic cleaning tasks, and that she was able to complete small portions of tasks at a time, however a professional cleaner would still be required to be undertaken a thorough clean.
On 12 December 2018, Ms Harriss applied to the Tribunal for review of this determination, stating in her application:
The decision is wrong because it is, in parts, based on:
1. Deliberate misinterpretations;
2. Failure to acknowledge salient factors;
3. Disregard for the validity of past decisions; and
4. Inserting new, undiscussed and un-negotiated, therapeutic goals.
The decision failed to consider several key Issues, for example the bushfire and snake habitat risks inherent in long grass in semi·rural areas; the original recommendations of my current and past treating physicians; the fact that I still have to pay for supplementary cleaning services, such as spring cleans, window cleaning, and cobwebbing/gutter cleaning so that even the past levels of compensation were not adequate in the long term.
The decision deliberately misinterpreted parts of the Angel Report, who in turn deliberately misstated information I had provided for example using the newly completed renovation and my occupancy of less than a week to report as a base level for my capacity for cleaning, rather than truthfully reflect I had paid someone for 2 full days to clean before I moved in, and continued to pay for unpacking and cleaning services during the settling in period.
He states that I have a greater capacity to clean than previously using the state of the house as evidence, when in fact the state of the house reflected efforts I had to pay to have performed. He further states I don't inhabit all the rooms in my home - I can assure you that the rooms I don't sleep in everyday are required. On the day he visited I was using a second bedroom. On very hot or cold nights I use the bedroom with the air conditioning unit, rather than the master. The shower in the main bathroom is larger and therefore I use it to wash my hair, at a minimum of twice per week. Finally, he opines that a little light mopping and spraying a shower screen will somehow accomplish four hours of house cleaning per month. This is unreasonable, unfeasible and demonstrably not true.
The decision denies and ignores past experience, repeated medical recommendations, and case notes which demonstrate additional activity invariably results in increased pain levels and decreased capacity for normal activities of daily living.
This past experience over many years was Ignored in favour of achieving a previously unmentioned 'therapeutic goal". I had never heard of, and certainly have not discussed with my physician, a therapeutic goal of 'increased independence'. It is my understanding of the Act that therapeutic goals are to be determined, discussed and agreed to prior to decision making, not inserted to justify a poor decision.
The decision is based on Mr Angel's pseudo-medical assertion that flexion is the critical activity impacting on pain levels. This is incorrect. It is static loading and the application of pressure through the joints and tendons which causes increased pain and inflammation of the tendons. Thus it is the position required for mopping, vacuuming and sweeping in combination with the application of pressure through the shoulders, arms and hands which causes the increased sensitivity of neural pathways and the resultant increase in pain.
The decision was taken in regard to a discussion with my treating physician who has since reviewed the matter. He has provided a supporting statement.
The review officer stated I had "asked for" 13.5 hours per week assistance. This is completely untrue. The question on the form asks how much housework I would do had I not been injured, not what a bare minimum to be clean would be required. The services originally requested by Dr Bamsurrun were discussed between us, based on previous recommendations and approvals, and on his assessment of the tasks I find painful and triggering of ongoing increased pain levels on a day to day and long term basis; and agreed as a reasonable effort to maintain my home in a liveable condition.
The review officer seems to have, at least In part, based her decision on Mr Angel's reference to some basic standards approved by Comcare. I can find no published documentation describing such standards, but I would argue that compensation should aim to achieve what I am no longer able to achieve alone, and that is a very high standard of cleanliness, with no dust to trigger my allergies, clean linen on my bed weekly, clean bathrooms, basins and toilets, and a clean kitchen in which to cook. Similarly my home and garden upkeep, including outside areas for recreation, gardens and lawns would have been mown, pruned, weeded, edged and maintained in a usable state on a weekly basis.
On 22 October 2020, Comcare determined there was no present liability for medical expenses under section 16 or household services under section 29 of the SRC Act for Ms Harriss’ accepted condition. The review officer stated:
Comcare must have regard to the contemporary medical evidence regarding your current condition, including the relationship to your employment in 1997. Associate Prof Romas conducted a thorough examination of each area of your left and right upper limbs which included the shoulders, elbows, wrist and thumbs. Based on his expertise and the objective clinical findings, he wrote:
“Ms Harriss’ treatment history indicates she probably had an occupational overuse syndrome such as myofascial pain disorder, but I did not identify any diagnostic trigger points which are characteristic of a myofascial pain disorder, on 24 September 2019.”
In relation to your current diagnosis, Associate Prof Romas stated that he: “did not identify any persisting, organic occupational injury including “overuse injury”.” He opined: “Ms Harris’ symptomatic constitutional conditions are likely to persist.” He went on to state “Ms Harriss’ current symptoms appear to relate to a psychologically-based chronic pain disorder or an adjustment disorder, although obviously a psychiatrist will be required to confirm whether she has a classifiable psychiatric condition connected to her Commonwealth employment.”
……
Finally, you and Dr McCormick have contended that your condition has been confirmed over many years and is therefore still applicable. Whilst you suffered from a compensable overuse injury in the past, Comcare must base our decision on the contemporary and appropriate medical evidence of your current condition.
On 16 December 2020, Ms Harriss applied to the Tribunal for review of this determination, stating in her application:
The decision states I have no medical condition currently, and that Comcare therefore has no liability for compensation. I have experienced the same condition, symptoms, causal activities for aggravations and physical difficulties with tasks since several years before my claim was lodged. They, and the medical evidence which supports my claim, have been ongoing, regular and consistent during all of this time. Comcare, in this decision and it's redetermination, rely primarily on medic-legal opinion and semantic arguments cherry picked from previous reports. The decision rewrites 23 years of documented history in an attempt to invalidate a previous application for review, the arguments for which have not been heard in 2 long years.
The application was heard via videoconference on 27 to 29 September 2021. Ms Harriss was self-represented and Comcare was represented by Mr Roy Seit of Counsel, instructed by Ms Genevieve Rush of Moray & Agnew Lawyers. The Tribunal was provided with documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T-Documents and Supplementary T-Documents) and the Applicant tendered several medical reports. Ms Harriss’ general practitioner’s Dr George Chan and Dr Howard McCormick, Mr Tim Angel, occupational therapist, and rheumatologists Associate Professor Evan Romas and Dr Marie Felatar, all gave oral evidence at the hearing.
THE ISSUES
The Tribunal must consider the following relevant issues:
(a)Whether Ms Harriss continues to suffer from the effects of the accepted injury of occupational overuse syndrome; and if so
(b)Whether the effects of the accepted injury resulted in a reasonable requirement for household services; and if so
(c)What level and type of services are reasonable?
LEGISLATION
Section 14(1) of the SRC Act provides that subject to the balance of Part II, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4 of the SRC Act defines an ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development’. Relevantly, the interpretative provision at section 4(1) provides that the words ‘injury’ and ‘disease’ have the meaning detailed in sections 5A and 5B respectively of the SRC Act:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. ...
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
On 22 October 2020, in accordance with the SRC Act, Comcare determined that the source of Ms Harriss’ ongoing pain was not related to her compensable condition.
As a result of such a determination, liability under section 16 and section 29 was denied. Section 16 of the SRC Act states:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment
Section 29 of the SRC Act states Comcare will provide compensation for household and services attendant care services for employees who have sustained a compensable injury:
(1) Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
Note: In relation to paragraph (2)(d), see also subsection 4(2).
(3) Where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of:
(a) $200 per week; or
(b) an amount per week equal to the amount per week paid or payable by the employee for those services;
whichever is less.
(4) Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the nature of the employee's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e) any assessment made in relation to the rehabilitation of the employee;
(f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services.
Note: In relation to paragraph (4)(f), see also subsection 4(2).
(5) Comcare is not liable to pay compensation under subsection (1) in respect of any week within the period of 28 days beginning on the date of the injury unless Comcare determines otherwise in a particular case on the ground of financial hardship or the need to provide for adequate supervision of dependent children.
(6) An amount of compensation payable by Comcare under subsection (1) or (3) is payable:
(a) where the employee has paid for the household services or attendant care services, as the case may be--to the employee; or
(b) in any other case--to the person who provided those services.
(7) Where Comcare pays an amount to a person who provided household services or attendant care services to an employee, the payment of the amount is, to the extent of the payment, a discharge of the liability of the employee to pay for those services.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
Ms Harriss
Ms Harriss stated at the hearing:
Respondent Counsel: So you simply can’t hold your hands in front of your upper abdomen and lower chest and just push the mop along the floor. You think that’s impossible?
Applicant: I’m saying when I do, it turns my pain on. I have done it. I don’t enjoy the consequences. I try to avoid it but I do it when necessary.
…
Respondent Counsel: Because you’re suggesting a level of disability that is very severe?
Applicant: The pain is very severe. If I have to take two Panadeine Fortes just to get to sleep, that’s what I consider severe pain. It’s there - I don’t know. If you’ve ever broken your arm and it’s not in that acute stage, it’s in the healing stage, but it aches and aches and aches.
Respondent Counsel: But you haven’t broken your arm?
Applicant: I’m trying to make - I’m trying to make a relative comparison about my pain levels. I’m sorry that that’s meaningless to you, but that’s what it feels like to me, like I have a broken arm.
…
Respondent Counsel: Do you feel like you may have become dependent upon household services?
Applicant: I’ve been dependent on them since, what, 1994 when I got my first housekeeper and realised how freeing it was to not ache for hours after I vacuumed, yes. Because you don’t - my doctor, and I have a supporting scan, says that my injury is tendinopathy. This is where rather than just turning on the pain, it’s an actual re injury every time I turn it on, because the tendon fibres start shredding. So it’s an actual new injury every time it’s triggered.
…
Respondent Counsel: And how do you relate that to the period of keyboarding in 1997?
Applicant: Okay. So you’re coming in the back door about centralised sensitisation.
Respondent Counsel: No, I’m saying to you you’re saying you currently have pathology in a tendon in your right wrist - - -?
Applicant: Yes.
Respondent Counsel: - - - where it’s connecting to the thumb and you say it’s tearing that’s occurring. How do you relate - - -?
Applicant: No, I’m saying the epicondyle - there’s evidence of tearing in the epicondyle.
Respondent Counsel: Well, we’ll hear from your doctor about that, but then how do you relate to the keyboarding that you were performing back in 1997?
Applicant: All right. Well, I’ll tell you what the doctors have consistently told me, what Dr Jill Brown says, what Dr Neil McGill says, what Dr Garth Eaton say, what Dr Whittaker says: one gets a physical injury, it’s of longstanding, the neural pathways become oversensitive to pain stimulus and it takes less stimulation to turn on the pain response. Now, if you add that to something that you re injure every time you re enact particular behaviours, I see no problem with that being utterly consistent with a long term injury with a neurogenic element. It’s called occupational overuse syndrome. The clue is in the ‘occupational’.
Respondent Counsel: I’m just trying to understand how you can relate what is the pathology that has been observed recently, which is really an inflammation of the tendon, and attribute that to work that you did back in 1997?
Applicant: Well, I originally damaged those tendons then, that damage has not resolved and I might - well, I have been doing keying work for the court case but not as much as I did back then. But it’s already turned on. It’s already there. It’s now part of - part of the occupational overuse syndrome. And it may not take as much stimulus to turn it on as it did back then, but it’s the same pain in the same loci with pretty much the same behaviours that turn it on; they’re just in a household sense and not in a - not in an office sense. I still, you know, have to handwrite, I still have to key occasionally, I still have to use a mouse occasionally.
…
Member: Well, yes, I mean, you’re no longer working. Most payments cease at 65 except this one. So, yes, I’m just - in your mind when did you think it would stop?
Applicant: No, no. In my mind, I was congratulating myself on - I tidied up a house in Canberra, I sold it, I moved down here. I managed all this and my arms were still fine and I got into this - into the new house and one week later, Tim Angel comes along and says I would be more fulfilled, I would have greater autonomy, if I did more housework. Now, quite frankly, that offended me. It offended me to think that anybody could think that you could keep a three bedroom house in reasonable condition on four hours housework a fortnight. And I thought about all the other people that they were doing this to too.
In my head, I need this assistance to live a reasonably fulfilling life. If it’s not paid for by Comcare, it’ll be paid for by me because I’m not willing to do more housework at the expense of the things that bring joy to my existence, like learning a language, like, you know, playing bocce with friends on a Thursday morning, like - - -
Mr Tim Angel, occupational therapist

Mr Tim Angel, occupational therapist, provided Comcare with a home assessment report, dated 7 September 2018, in which he opined:
Does the employee require assistance to perform tasks now due to their compensable injury? If yes, explain the functional limitations preventing the employee from performing each task and how they are related to the employee’s compensable injury?
Yes.
At the assessment Ms Harriss presented functional capacity/limitations
The main aspects of the compensable injury that limit her from performing the tasks are
- Shoulder flexion/abduction above shoulder height
- Increased pain upon prolonged shoulder muscle activation
- Increased pain associated with repetitive movements
- Lifting limitations
Please see tasks outlined below:
CLEANING
- Mopping- requires some lifting of buckets as well as some squeezing motions to wring out the mop which may exacerbate her condition. The nature of mopping involves prolonged grip if completed in succession. Adaptive techniques and modifications may assist to improve independence however assistance will still be required.
- Vacuuming- The movement of vacuuming requires prolonged shoulder muscle activation and repetitive shoulder movement which is likely to exacerbate the condition. Adaptive techniques may assist to improve independence however assistance will still be required.
- Bathroom- completing scrubbing of showers and tiles is challenging as increased pressure is placed through the shoulder joints and may exacerbate her condition.
- Ms Harriss should be encouraged to do short periods of mopping with a lightweight mop for 5 mins (1 room) per day or as required.
GARDENING
- Ms Harriss does not maintain the strength/endurance required to mow all of the lawn (ride on Mower is required
Are there any factors other than the employee’s compensable injury impacting their ability to perform the tasks (e.g. non-compensable conditions)?
Important to note, Ms Harriss has been receiving assistance for a considerable amount of time, therefore motivation to shift toward independence may be limited.
Are the tasks impacting the employee’s current rehabilitation (return to work) program? (If they have one)
Not Applicable. Ms Harriss no longer works.
Could you train the employee in adaptive techniques or the use of equipment to enable them perform the tasks independently?
Yes. Ms Harriss should be encouraged to attempt some general mopping tasks. Using a light weight mop, Ms Harriss may stand tall with the elbows by the waist and move her legs in order to complete a general clean. This may assist her to contribute to the floor cleaning however a more thorough mop would be required each fortnight. Ms Harriss should be encouraged to use a spray solution on her shower screens to minimise any scrubbing. This can then be rinsed off.
Ms Harriss lives alone and as Ms Harriss indicated, she only really uses her bedroom, the living areas and her ensuite bathroom. She advised that occasionally the main bathroom and toilet may be used. With this in consideration it is reasonable to expect that cleaning tasks that require compensation are the cleaning of the main living areas, kitchen, the main bedroom and her ensuite. To keep this at a reasonable standard, the house would require less time than the current allocation. Provision of 2 hours each fortnight is considered reasonable for the number of occupants of the home and the limited space that is utilised.
Recommendations have been made to ensure that cleaning and gardening services meet a base standard as recommended in the Comcare guidelines.
The oral evidence given by Mr Angel at the hearing is summarised as follows:
(a)When he assessed Ms Harris’ condition and her capacity to undertake cleaning and gardening activates, he took into consideration her shoulder, arm, elbow, wrist, hand and thumb.
(b)Based on what he observed and what Ms Harriss had advised, she was not capable of undertaking heavy household cleaning but could undertake light adaptive cleaning to keep her house tidy in between a cleaner coming to her home to perform heavier household cleaning tasks.
(c)His recommendations as to Ms Harriss’ capacity to perform light tasks was based on the fact that she was able to apply a degree of force but not an excessive amount of force because she still had some function in her upper limbs.
(d)He has been undertaking home assessments since 2005 and in his experience, most people required two to two and a half hours per fortnight for cleaning.
(e)In his experience a musculoskeletal injury such as Ms Harriss’ condition had the potential for capacity to be regained or improved and that continual assessment should be undertaken to ensure an induvial maximises their functional capacity.
(f)As the ethos of occupational therapy is assisting people to engage in purposeful and meaningful activity because that has a positive physically, psychologically and emotionally impact, it would be against his learning as an occupational therapist not to encourage independence. In this sense, he described household cleaning as purposeful.
Medical Evidence
Dr George Chan, general practitioner
On 20 May 2021, Dr Chan provided a medical report to Ms Harriss for these proceedings, in which he opines:
This is to certify that I was the treating doctor for Margaret Harriss between 2010 and her relocation to Melbourne in 2017. Ms Harriss has had a long history of an occupational overuse injury and chronic regional pain syndrome which she sustained in 1997 as a result of repetitive keyboard work. She had been a patient of Dr Jill Brown until her retirement in April 2010. She had recurrent right shoulder pain which radiated down the right arm associated with pain around the right lateral epicondyle and down to right wrist. She had associated weakness and tenderness of the right arm. Pain was aggravated by physical activities, lifting and period of intense repetitive work.
Her pain consisted of ongoing burning pain in the arm and shoulder which was worse in the morning and late at night radiating to right elbow, right wrist and right hands. Her elbow and wrist as well as right hand had been stiff.
Ms. Harriss has asked me to provide a report. I declare that I had one medical consultation with Ms. Harriss in December 2019 since the last medical report. Her condition at that consultation was very similar to her previous consultation 2 years prior.
Ms Harriss suffers from chronic pain with complex regional pain syndrome as a result of her occupational overuse injury in 1997 which is her compensable condition. Her condition has been long term and there is no other contributing factor/s to her current symptoms. As far as I am aware, her current pain is very similar to her pain 4 years ago before she relocated to Melbourne.
Ms Harriss' condition has been stable. In 2017, She suffered from chronic (cold) regional pain syndrome. She had a cool oedematous, painful limb with atrophic changes in the hands and arms. She had no evidence of nerve injury. The diagnosis was supported by continual pain to the trigger point, hyperalgesia to pin prick and allodynia. She had swelling in her arm and her arm felt cool and there was evidence of increased sweating, decreased range of motion, weakness and some atrophic changes to the skin. Her condition was not explained by any other diagnosis.
…
In conclusion, Ms. Harriss has had long history of chronic pain syndrome as a result of repetitive work injury. Her symptoms persisted for many years until my report in 2017. She has not had any improvement since then as far as I am aware. I would be very surprise if her condition has improved or changed significantly in the last few years. Since 2012, she has retired voluntarily. Her condition has not deteriorated since her retirement. There has been no aggravation, exacerbation or improvement of her accepted occupational overuse syndrome.
Unless there has been a significant change of symptoms and signs in the last few years, I would be very surprise for any report to suggest that there is no causal link to her Commonwealth Employment. Her condition has started many years ago as a result of her chronic overuse injury and the symptoms and signs had been constant for many years. I find it surprising that this has changed in the last few years without any subjective improvement
…..
Ms. Harriss suffered from chronic (cold) regional pain syndrome. She had a cool oedematous, painful limb with atrophic changes in the hands and arms. She had no evidence of nerve injury. The diagnosis was supported by continual pain to the trigger point, hyperalgesia to pin prick and allodynia. She had swelling in her arm and her arm felt cool and there was evidence of increased sweating, decreased range of motion, weakness and some atrophic changes to the skin. Her condition was not explained by any other diagnosis. Prior to the diagnosis, there was multiple reports of overuse work injury which would be the aetiology of the diagnosis.
…
Ms. Harriss's condition is chronic regional pain syndrome secondary to work related injury. It has not turned into a psychiatric disorder. Ms. Harriss does suffer from secondary depression and anxiety as a result of her chronic pain. Her chronic pain is not a psychiatric disorder.
Dr Chan gave evidence at the hearing:
Respondent Counsel: You say she had a recurrent right shoulder pain which radiated down the right arm?
Dr Chan: I believe it is correct, yes.
Respondent Counsel: What do you mean by recurrent?
Dr Chan: Well, I think basically I probably would say that she has a constant type of pain. I think she always complained of some pain, but she has aggravation from time to time, especially after she has done something sort of - maybe doing some work or doing some other things, and if she has a period that she was working, she did have aggravation after that. So she’s always had a low level of pain all the time since then, as far as I’m aware, but she does get aggravation from time to time.
…
Respondent Counsel: Dr Chan, in your report you say Ms Harriss suffers from chronic pain with complex regional pain syndrome as a result of her occupational overuse injury in 1997, which is obviously - - -?---Yes.- - - a compensable injury. So when you talk about chronic pain, complex regional pain syndrome, what is the physiology behind that? If it’s not psychological pain syndrome, what’s the physiology behind it?
Dr Chan: Well, no one knows exactly what the physiology is. I think you can see that on a lot of literature. I think a lot is due to an over - what do you call it - increased sensitivity of the nerve fibres which has been damaged and basically the fibres give you excessive response like muscle constriction which gives you swelling in the area, sweating and things like that. So I think that is the main physiology, but I mean, it is not any specific injury to any of the, say, nerve - sorry, not to the nerve, but to tendon or wherever, which gives rise to that, but I think during - with that damage to the original injury, what happened is that there was some damage to the nerve ending which hypersensitised the nerve which give you the syndrome. I agree that there hasn’t been - I mean, absolute agreement from everyone about this physiology but I believe that it’s the reason, and I guess the consistent things about her and this syndrome is if she’ll just say to me that there’s pain or burning, then you probably have to have some doubt, but I can see her with visible swelling in the area and swearing.
Respondent Counsel: Yes?
Dr Chan: I think that is the area that I would say could - obviously there’s no - I mean, if there - I mean, if that happened over the years, I think that would give me the impression that this is the right diagnosis rather than just a lot of damage is due to tendonitis or wherever which should not give you all those things. I mean, if you do have acute swelling obviously following the injury that happened, but not 10, 15 years after the injury.
Dr Howard McCormick, general practitioner
On 29 January 2020, Dr McCormick provided a report to Comcare following a request for a medical report for Ms Harriss, in which he opines:
Her pain consisted of ongoing burning pain in the arm and shoulder which is worse in the morning and late at night radiate to right elbow, right wrist and right hands. Her elbow and wrist as well as right hand has been stiff. Her pain has been consistent over the last few years and she describes her pain level to be 4-5 out of 10. By and large, she has been managing her pain quite well but has required regular analgesia including tramadol and Digesic and has had acupuncture for pain exacerbation. She has had similar but less severe pain of her right arm. She has been retired from work for a few years now, but has flare-ups when she overuses her arm at home.
…
In relation to the schedule of questions addressed by A/Prof Romas:
It is hardly surprising that after 23 years there are few current signs of an overuse syndrome. It is clear from the use of the quotation marks that the author does not believe in a condition he has called overuse injury. Just as there are not likely to be objective signs of a chronic pain syndrome does not mean that the syndrome does not exists.
It seems quite illogical to conclude that because there are no clinical findings now, that there must be no connection between Ms Harriss’s employment and her current abilities as in Point 7(e) on page 8. It is my understanding that the clear connection between work and the syndrome exists back to 1997. If doctors more skilled than myself have noted the connection at the time, it would be inappropriate of me to question their good work. I do NOT agree with A/Prof Romas conclusion on this matter.
In relation to point 8, I find the recommendation for Ms Harriss to see a consultant psychiatrist: confusing. He states in point 9 he thinks she may have a psychologically-based chronic pain syndrome or “somatic symptom disorder.”
I have 40 years experience in General Practice mental health and will be lecturing on the subject to GPs overseas in a few weeks time. In regular conversations Ms Harriss, I have never found any evidence of any psychiatric condition that would require treatment, let alone a referral to a psychiatrist. My understanding of the implication from the report is that Associate Professor Romas believes Ms Harriss is showing some signs of what used to be called hysteria, or she is malingering. I have never found any evidence of either of these conditions despite repeated examination.
Associate Professor Evan Romas, rheumatologist
On 22 October 2018, in a medico-legal report prepared for these proceedings, Associate Professor Romas, rheumatologist, opined the following:
General Comments:
With regard to the upper extremities, there were no signs of organic pain syndrome such as myofascial pain disorder with myofascial tender points, or complex regional pain syndrome (with swelling, cyanosis, allodynia and/ or soft tissue hypersensitivity).
Shoulders:
The shoulders moved normally but the arcs of motion were not measured and impingement signs were not assessed.
Left and right elbows were clinically normal to specific examination. No clinical epicondylitis.
Specifically, with regard to the right elbow, there were no clinical signs of lateral epicondylitis, such as localising tenderness or provocation of pain with activation of extensor carpi radialis brevis muscle.
Wrists:
There were no definite ganglia.
Left wrist was clinically normal.
With regard to the right wrist joint, there was no joint line tenderness or synovitis or signs of joint instability. There was no evidence of extensor tenosynovitis. Finkelstein’s test for the De Quervain tendonitis, was negative.
Thumbs:
With regard to the right thumb, there was a pea-sized lump over the left carpometacarpal joint. There was no crepitus or localising joint tenderness.
…
Your diagnosis.
I did not identify any persisting, organic occupational injury including "overuse injury".
…
Does the Applicant require household services in respect of her compensable condition (Occupational Overuse Syndrome)?
Any claimed household services are not for the treatment of any compensable organic occupational overuse syndrome.
…
Any other comments you feel are pertinent.
Based on Ms Harriss' history and the short medical file, Ms Harriss probably did suffer from a myofascial pain disorder in the past. However currently there is no evidence of any organic occupational overuse disorder. Ms Harriss' perceived incapacity and distress is most likely attributable to a psychologically-based chronic pain syndrome or a classifiable "somatic symptom disorder" (DSM-5), characterised by high levels of polysymptomatic distress. To obtain a proper perspective of Ms Harriss' symptoms and their causation, an independent psychiatric opinion is necessary.
On 11 May 2020, in a supplementary medico-legal report, Associate Professor Romas opined:
Does the applicant require household services in respect of her compensable condition (occupation overuse syndrome)?
No. I accept that the claimant has an “occupational overuse syndrome”, but I am not persuaded, in the absence of additional information, eg: a classifiable psychiatric condition, or other valid evidence of functional incapacity, that her “occupational overuse syndrome” requires the household services (cleaning and gardening) which are claimed and have been provided for many years.
Applications for household assistance since 2010 have described the applicant’s physical limitations as involving both of her shoulders. The shoulders are not a compensable condition although she has had a diagnosed non-compensable left shoulder since 2001. Does the applicant require household and gardening assistance for either or both shoulder conditions?
I found no evidence of intrinsic shoulder conditions. On this basis, I conclude the applicant does not require household and gardening assistance for either or both shoulder conditions.
Associate Professor Romas evidence at the hearing:
A/Prof Romas:…There is another group of clinicians who basically, you know, if they can’t diagnose a myofascial pain syndrome, they can’t diagnose complex regional pain syndrome and they don’t believe in central sensitisation or they’re sceptical. And I will say, well I can’t diagnose anything. And I guess, you know, my report basically falls into that camp that I am not here to speculate about what the patient has, certainly not 24 years after she was, you know, after the onset of her problem. I am here to hear the story, put together, you know, some sort of narrative that I can understand, consider what I have found at that point in time and then make a diagnosis, a clinical diagnosis, and I was – I mean, I did actually detect – I noted that she’d been - Mrs Harriss had been diagnosed with elbow epicondylitis and basal thumber, thumb joint arthritis, but I didn’t demonstrate any pathology on the day I saw her. There was a little bit of swelling in relation to the basal thumb area but certainly there was nothing clinically there to explain her symptoms.
Respondent Counsel: And also, an ultrasound study upon recently which suggests some tendinitis of the tendon that – tendon that connects the thumb to the wrist?
A/Prof Romas:Yes, well these are highly prevalent, common, degenerative conditions that are age dependent, so they’re pretty common and you find them – but you know, those conditions are incidental findings, they don’t explain the patients, you know, two decades of pain.
Respondent Counsel: Is it possible to link those conditions to repetitive work performed in 1997?
A/Prof Romas: Well no. You know, it’s possible to get an aggravation of osteo arthritis of the thumb if you have an occupation that involves a lot of pinching, or a lot of grasping, or gripping, we see that quite commonly. But the patient’s diagnosis, so for, you know, decades later, is not linked to her employment, you know, previous employment. Which was basically, as I understood it, office employment. She had a very high level position, a leadership position and got a problem in that context.
Dr Marie Felatar, rheumatologist

On 15 July 2020, Dr Felatar provided Dr McCormick with a report for Ms Harriss’ Comcare claim in which she opines:
When I asked how she spends her days she says she gets up in the morning, has her breakfast, tidies the kitchen, has a shower, gets dressed, participates in University of the Third Age. She goes out to take a few photographs twice a week; has lunch with a friend twice a week. She can dust and do light duties but when she applies any pressure through her arms she struggles. She gave up ironing because she can't do it, she feels that shaking a doona cover is too difficult.
She currently weighs 127.9 kg. She has general tenderness in the arm and forearm, range of movement of the shoulders however were normal both bilaterally and range of movement of the elbows were normal bilaterally as were the wrists. Power examination in the upper limbs were normal in particular the specific provocative movement for extensor tendonitis were negative. Reflexes in both upper limbs were normal.
She asked me if l could write a report in support of her claim for paid household cleaning. At present I don't believe she is physically disabled sufficiently to warrant housework support at home to any degree. Even fortnightly I think would not be required. l saw this lady 12 months ago.
Dr Felatar gave evidence at the hearing:
Member: So that from both of Ms Harris’s treating doctors, who gave evidence, their underlying premise was that any exertion and use of her arms, such as vacuuming, mopping, flares up the underlying condition, causes pain, and therefore should be avoided?
Dr Felatar: By ‘the condition’, you mean which condition?
Member: Well, that’s a moot point. The condition of the wrist, the hand, the shoulder, the arm – the underlying compensable condition that Comcare originally recognised, the overuse syndrome?
Dr Felatar: Again, anatomically – to try and be precise – we would often try to narrow it down to what, anatomically, are we talking about that causes her pain. Is it tendonitis? Is it osteoarthritis? Is it a neurological symptom? Or something else? So she reports a sense of fatigability and pain. And that’s a very subjective complaint.
Member: So that wouldn’t lead you to the conclusion that she still required ongoing assistance at home from Comcare?
Dr Felatar: She presented as an able-bodied person. She walked in the door, she sat down, she was able to get on and off the chair. She had looked after herself for many years. Thereby, the assumption is that there are any things that she does for herself around the house. And shopping and all those daily functions that we need to perform, hygiene, and cooking. So my professional impression is that she did not need assistance based on her Comcare claim.
CONTENTIONS
Ms Harriss
Ms Harriss contended that the amount of home assistance in the Comcare determination of 17 September 2018 of cleaning services for two hours per fortnight, and lawn mowing services for two and a half hours per fortnight from November to March, and two and a half hours every three weeks from April to October, was insufficient to meet her physical and practical needs in the running, management, and maintenance of her home environment.
Ms Harriss argued that the medical, imaging, psychological, and occupational therapy documentation supported that this amount of home help was inadequate. She contended the Comcare determination of 17 September 2018 was flawed because it disregarded the recommendations of her current treating doctor and ignored over 20 years of medical opinion in favour of one occupational therapist’s 30-minute assessment.
She further argued that Comcare’s internal review of the 17 September 2018 determination was cursory, flawed and failed to comply with legislative provisions surrounding the legality of imposed, rather than negotiated, therapeutic goals. Additionally, she argued the review officer failed to consider the potentially negative effects of cutting services which had produced successful outcomes for her over the past decades.
In relation to the medical evidence provided by Associate Professor Romas, Ms Harris contended that his findings were based on flawed examination techniques and a lack of expertise to diagnose psychiatric conditions. She also refuted Associate Professor Romas’ and Dr Felatar’s evidence, arguing that there was physical evidence which confirms she was suffering from tendinopathy (epicondylitis). This was also supported by the opinion of consultant psychiatrist, Dr Michael Duke, who, on 26 November 1999, provided a report to Comcare which acknowledged both Ms Harris’ physical condition and also a psychological sensitization effect which was causally related to her long-term pain inducing condition. Ms Harris argued that Comcare previously accepted Dr Duke’s finding and has reimbursed her for medication for the psychological effect of her condition since 1999. Additionally, Dr Duke predicted that Ms Harris would experience low levels of pain for the rest of her life, which was accepted by Comcare at the time, and indeed, Ms Harris argues, Dr Duke’s prognosis has been accurate.
Ms Harriss asserted that Comcare was acting opportunistically in accepting Associate Professor Romas’ reports, when there was a wealth of evidence contrary to his opinions. She argued that Associate Professor Romas’ opinion was unreasonable for a number of reasons, including that it denied any physical injury ever occurred, retrospectively diagnosed a syndrome which none of her other treaters had ever suggested, and threw out 24 years of medical opinion, treatment, physical evidence in the form of ultrasounds and hard-learned management strategies which had enabled her to live a reasonable life. She argued that there was a myriad of medical evidence since she first noticed the pain in her wrist in 1994 and her reported and accepted claim in 1997 which identified central sensitisation causally related to a workplace injury. She contended that the reports prepared by her treating doctors, Dr McCormick and Dr Jain, should be preferred by the Tribunal which indicate multiple site pains, predominantly bilateral, wrist pain, secondary to repetitive movements, with significant component of sensitisation.
Ms Harriss also contended that the amount of home care was inadequate because of the significant exacerbation of her condition and frequent reinjury which is caused by performing specific tasks, such as scrubbing the bathroom and kitchen, vacuuming, sweeping, mopping, and high dusting.
Ms Harris argued that she had never claimed that she was physically unable to perform certain household tasks, but rather that certain activities significantly exacerbated her pain which she cannot bear without resorting to medication, nor can she perform tasks long enough to produce desirable outcomes. In her closing submission she stated:
Both rheumatologists seem adamant the pain is irrelevant, it should be suffered through, ignored, causes no ill-effects whatsoever. They see no cost associated with chronic pain and no pathways leading to it, or indeed, away from it. Their lack of physical evidence is used to negate me, my pain and my medical history and then when physical evidence is tendered, they argue it weighs coincidental, an aspect of ageing and a figment of the imagination of my treating practitioners.
Damned if I can’t show physical evidence, damned if I can. They assume I should do my housework, suffer in silence and sacrifice equality in life for a clean house and no cost to an insurer. They insist the pain is [indistinct) with no causality, no social or economic or psychological consequences and no ill-effect on the sufferer.
To add insult to injury, they cite my choice to continue working, rather than existing on the dole, as evidence that my pain is completely inconsequential. One has to ask though, why Dr Feletar felt the need to note that at least she is not on any narcotics. It seems to her; narcotics would be a valid response – she must regard the level of pain I feel as persistent and having some degree of severity.
Ms Harriss noted that she and her doctors had observed the increase in her pain flare ups since Comcare had reduced her household services. She fundamentally disagreed with Mr Angel’s contention that she could manage with reduced services and that housework would be a rewarding pursuit for her.
She also stated that she has given up many activities she loves and values to be able to live with as little pain as possible, but these sacrifices would be in vain if Comcare’s determination was affirmed, as the more work she did, the more damage she caused herself and the longer she took to heal. She stated that she could undertake activities such as housework, but it would be at the cost of pursuing activities which gave her life meaning and purpose.
Fundamentally, Ms Harriss contended that her former employer was accountable for her pain and therefore it was Comcare’s responsibility to provide her with home help so that no more of her life would be lost to pain.
Ms Harriss stated her belief that Comcare, in seeking short term savings, had expended more in coping with exacerbations than it would have in continuing a reasonable level of service. She argued that it would waste past expenditure it had invested in her learning to build a sustainable life despite her limitations, by reinjuring her and forcing her to live with greater restrictions, more pain and more invasive interventions. Overall, she argued that this was an expensive exercise in futility for both parties.
Comcare
Comcare contended that the reviewable decision of 6 November 2018 should be affirmed as it was informed by the level of household services recommended by occupational therapist, Mr Angel. Comcare’s determination essentially mirrors Mr Angel’s reported recommendation that cleaning services for two hours per fortnight, and lawn mowing services for two and a half hours per fortnight from November to March and two and a half hours every three weeks from April to October, was reasonable.
Comcare also contended that the reviewable decision of 22 October 2020 should be affirmed, as the most recent medical evidence indicated that Ms Harriss was presenting with no signs of an organic pain syndrome, such as a myofascial pain disorder or a complex regional pain syndrome. They argued that the opinion of Associate Professor Romas, as an eminently qualified rheumatologist, should be preferred by the Tribunal in his conclusion that Ms Harriss was no longer suffering from a condition which was causally related to her employment with the Commonwealth which ceased in 2005, some 17 years ago.
The Respondent also argued that the recommendations made by Mr Angel should be preferred over Ms Harriss’ claims and those of her treating doctors because Mr Angel is a highly experienced occupational therapist who has been conducting home assessments for a number of years. Mr Angel had the benefit of observing Ms Harriss in her home environment and whilst considering her subjective complaints, determined that she was capable of some light cleaning between fortnightly visits from a cleaner, noting she was able to drive a car for some distance which involved gripping the steering wheel. Mr Angel also suggested several adaptive techniques such as doing minor cleaning in small blocks. The Respondent submitted that Mr Angel’s recommendations were reasonable and gave Ms Harriss considerable benefit of the doubt in terms of accepting she was describing a certain level of pain, but also recognised that Ms Harriss’ ability to do certain things, such as driving a car for some distance, and demonstrated some capability to do small blocks of housework.
The Respondent submitted that Ms Harris’ subjective reports of pain suggest quite a significant limitation of the use of her upper limbs, however, in her evidence, she conceded that she was able to drive for an hour and could go shopping and perform other activities of daily living such as preparing meals and self-care. Ms Harriss also conceded she had the ability to play bocci, go to a gym and use weights. The Respondent also drew attention to Mr Angel’s allusion to a lack of motivation on the part of Ms Harriss to undertake her own housework and an unwillingness to reduce the level of support from what she has received in the past.
In relation to the evidence provided by Ms Harris from her treating general practitioners, Dr Chan and Dr McCormick, the Respondent submitted that neither was in a position to assess Ms Harriss’ ability to perform household tasks from their clinical examination rooms and they didn’t have the benefit that Mr Angel had of actually attending the residence and observing Ms Harriss in her home environment, performing particular movements and tasks. The Respondent argued that Dr Chan and Dr McCormick’s opinions were essentially based upon Ms Harriss’ subjective assertions of her capacity to perform certain tasks, rather than an independent view of her condition.
They further argued that Dr Chan was in a particularly difficult position because he was Ms Harris’ former general practitioner who stopped seeing her in about 2017 and so was not able to give an opinion about her current condition, except for having seen her once in December 2019. Further, the Respondent argued that Dr Chan’s diagnosis of complex regional pain syndrome was highly questionable as he was the only medical practitioner who had diagnosed her with this. They argued that Dr Chan’s diagnosis was disproved by the evidence of Associate Professor Romas that true complex regional pain syndrome does not behave in the manner described by Dr Chan.
The Respondent submitted that the Tribunal should prefer the medical opinion of Associate Professor Romas as an eminently qualified rheumatologist. Associate Professor Romas conceded, based on a physical examination of Ms Harriss, her history, and review of her medical records, that she likely suffered from a recognised occupational overuse syndrome at least through 2005. This myofascial pain disorder is characterised by trigger points and referred pain when pressure is applied to certain trigger points in the arms. However, based on his examination of Ms Harriss on 24 September 2019, Associate Professor Romas found there were no signs of any organic pain syndrome, such as a myofascial pain disorder, or a complex regional pain syndrome, and considered that the diagnosis of a pain syndrome of the central sensitisation type was a tenuous diagnosis and not verifiable as a physical injury. Based on this examination, Associate Professor Romas concluded there was no clinically identifiable organic physical occupational overuse syndrome currently suffered by Ms Harriss. He noted some organic signs of osteoarthritis of the thumb base and wrist tendinitis revealed by an ultrasound and X-ray investigations but submitted that these conditions were degenerative and not causally related to Ms Harriss’ former Commonwealth employment nor the source of her symptoms.
Based on this evidence of Associate Professor Romas, the Respondent submitted that Ms Harriss was no longer suffering from a condition that was causally related to her employment with the Commonwealth which ceased in 2005.
The Respondent noted that when Ms Harriss’ subjective complaints and claims of her inability to undertake household tasks were raised with Associate Professor Romas, he was very firm in his view that Ms Harriss did not require household services, noting in particular that Ms Harriss’ issue was maladaptive fear avoidance behaviour rather than an occupational overuse condition.
The Respondent also sought to rely on the medical evidence of Dr Feletar who, while not specifying a diagnosis, observed that Ms Harriss reported subjective symptoms which were out of all proportion to the physical findings, which according to Dr Feletar, were essentially normal apart from general tenderness. Dr Feletar suggested Ms Harriss’ main problems were her weight and lack of fitness. Like Associate Professor Romas, Dr Feletar also noted some organic findings relating to the thumb and the elbow but determined these were constitutional and not the cause of the symptoms and level of pain described by Ms Harriss.
The Respondent submitted that Dr Feletar had a similar view to Associate Professor Romas in relation to Ms Harriss’ need for household services, as Dr Felatar was adamant that Ms Harriss did not reasonably require the provision of household services. In support of this view, Dr Feletar noted that despite Ms Harriss’ complaints of pain, she continued in employment for many years before she eventually retired in 2012.
The Respondent further submitted that Ms Harriss’ unwillingness to undertake household cleaning was not a valid basis for declining to perform them. The Respondent noted that when Ms Harriss was presented with the inconsistency regarding her apparent inability to perform even minor blocks of household cleaning when she was able to undertake other recreational activities, she responded that she was prepared to undertake activities which gave her enjoyment but not those activities which did not.
The Respondent also refuted Ms Harriss’ claim that she required additional cleaning services because she lives in a dusty, windy area which impacts her sinus allergy, on the basis that her sinus condition is not a compensable condition for which the Respondent is not liable. Furthermore, the Respondent argued that Ms Harriss chose to place herself in the position of requiring increased cleaning and gardening by purchasing a three-bedroom, two-bathroom home on a large block in a rural location. On Ms Harriss’ evidence that she purchased her property with plans of flipping the property or else building an additional unit on the property, the Respondent contended that they should not be liable for household service requirements which are attributable to an Applicant’s investment decisions.
CONSIDERATION
Does Ms Harriss continue to suffer from the effects of the accepted injury of an occupational overuse syndrome?
There is no dispute that Ms Harriss experiences extreme pain in her right wrist, hand, forearm, elbow, thumb and shoulder because she has consistently reported this pain since her accepted injury in 1997. There is also no dispute that Ms Harriss experiences an exacerbation of this pain when she undertakes certain activities such as housework, again based on her consistent reports. This was succinctly summarised by the statements of Dr McCormick at the hearing:
In these sort of situations, number one, I’m not in the same field as someone who’s an occupation therapist, I’m not an expert in housework. But if a patient has been having - finding certain activities stir them up, if every so often they should try to do a little bit more than they have been before. But if you do everything - if you do a certain activity and every time it flares it up, I use a Einstein’s definition of insanity, ‘Doing the same thing over and over again and expecting a different result’. She’s not insane, she’s not going to keep doing things that will clearly aggravate the problem. And I agree that that’s a sensible way to go ahead.
…
…Ultimately, she is the one who has the pain. You or I don’t have the ability to see what the pain is. And most pain scales relate to self-reporting, they’ve been accepted in most studies as a reliable way of assessing the level of pain a patient is experiencing.
…
…that in most cases of chronic pain there are very few findings on examination. I have occasionally found there are some areas of inflammation in the tendons of the forearm and they have not been there very often. But that’s not the issue. The issue is, does the patient experience pain, does it get worse in certain situations, does it improve with relative rest. And the answer is, it’s all consistent from time to time when I see her. Yes, there’s pain there, yes it gets worse when it’s overused, and yes she requires rest before it settles down.

There is also no dispute that Comcare accepted liability for Ms Harriss’ occupational overuse syndrome in April 1997 and has previously determined that Ms Harriss was entitled to household assistance (cleaning and gardening) in accordance with section 29 of the SRC Act. As outlined above at paragraph 8, the level of household assistance provided to Ms Harriss has varied over time.
The issue in dispute and the central question under review is whether, on the basis of the evidence before it, the Tribunal is satisfied that Ms Harriss continues to suffer from the previously accepted condition of occupational overuse syndrome.
The Tribunal found Ms Harriss to be a cogent, frank, concise and reliable witness. Ms Harriss prosecuted her case admirably before the Tribunal. Ms Harriss has consistently asserted that she experienced pain as a result of her excessive workload which was predominately keyboarding. Ms Harriss has also continually asserted she lives with a level of pain which is aggravated when she undertakes additional activities such as household cleaning. She has consistently asserted that this invariably results in increased pain levels and decreased capacity for normal activities of daily living. However, the Tribunal was not persuaded by several of Ms Harriss’ contentions, or her opinion of the various medical experts utilised by Comcare in these proceedings.
The Respondent contends that from 22 October 2020, the date of determination, Ms Harriss no longer suffers from the previously accepted occupational overuse condition, relying on the contemporaneous medical evidence on Ms Harriss’ current condition provided by Associate Professor Romas and Dr Feletar.
The Tribunal was greatly assisted by all the medical experts who gave evidence at the hearing. Despite the disagreements between the medical experts, they all provided cogent, frank, concise and reliable testimony to the Tribunal.
As noted above in paragraphs 9 -12, this is not the first occasion in which Comcare has questioned whether Ms Harriss was still entitled to compensation benefits under sections 16, 29 or 19 of the SRC Act. On the previous occasion, Comcare relied upon the medical review of Doctor Neil McGill, consultant rheumatologist, dated 23 September 2002, which opined:
Apart from her adiposity, her upper limbs looked normal. Colour temperature and sweating of the two upper limbs were normal. There was no oedema. There was a full range of movement of the fingers, wrists and elbows. She demonstrated full power in all muscle groups in both upper limbs. Reflexes in the upper limbs were normal and symmetrical.
…
Neck movements were full for a lady of her body habitus.
…
Her examination demonstrated severe obesity, widespread tenderness, and no evidence of epicondylitis, tendonitis or other physical disease to account for her symptoms.
I do not think that her current symptoms are the result of her work on any physical basis ...
…
She is physically fit to upgrade her work duties to full hours ...
…
I do not think that passive therapies are helpful in this situation. Specifically I do not think that massage is helpful and I doubt there is anything further to be gained by supervised Pilates sessions.
The Tribunal notes that Dr McGill’s opinion, some 18 years ago, is very similar to the contemporary findings of Associate Professor Romas and Dr Feletar.
The Tribunal was satisfied that Associate Professor Romas had the experience and expertise which was directly relevant to the assessment he undertook and the Tribunal relied upon Associate Professor Romas’ report which found no identifiable persisting, organic occupational injury including overuse injury, as well as his evidence at hearing:
Respondent Counsel: So in terms of – is there anything about her current condition that you can link back to her employment and in particular, the history of quite intensive keyboard work occurred during 1997?
A/Prof Romas: Yes, well unfortunately there isn’t. I mean, she was treated for a soft tissue injury, and/or a myofascial pain injury back then, but I wasn’t able to demonstrate any clinical science to support that as being a persistent problem, she didn’t have any signs of complex regional pain syndrome, she didn’t have any clinical tendinopathy at the elbow, or the wrist, she was said to have basal thumb arthritis, well she has it on imaging but she didn’t have crepitus or other clinical findings on the day I saw her. So – and in any event, any diagnosis that emerges in recent years, I don’t think can be related – I don’t believe can be related to her commonwealth employment. So you know, it’s quite a difficult situation where, you know, she’s sent to me to examine and I find no objective clinical findings, so you know, I am let to the conclusions that I am led to, I can’t speculate, I can give some idea of what might have happened early on in the late 90s when she was treated early 2000s but I can’t speculate now. All I can do is take her as I find her, based on my examination, try and come up with a diagnosis. She’s certainly got a few problems, radiologically at the elbow tendon and the thumb joint, and perhaps at the first (indistinct) compartment, but she didn’t have clinical problems and none of those radiological diagnosis would explain her problem, her upper limb pain.
Likewise, the Tribunal was satisfied that Dr Feletar was qualified to undertake a review of Ms Harriss. The Tribunal relied upon the evidence of Dr Feletar who observed:
Dr Felatar: My examination findings state that she had a normal range of movement of both elbows, no evidence of inflammation of the joints, no specific features of tendonitis of the elbows, and that she had some mild osteoarthritis in her hands.
Respondent Counsel: And there’s also a bit of widespread tenderness that you observed, wasn’t there?
Dr Felatar: Correct. Yes.
Respondent Counsel: Did you form any view in relation to diagnosis at that stage?
Dr Felatar: I felt that she had some widespread tenderness – which can certainly suggest fibromyalgia, but I’d only seen her on one occasion at that point – and that she had a very long history of pain. And with not any significant functional deformity on examination to find. So my impression was that the reports of pain exceeded the physical findings.
Respondent Counsel: Did you form any view about a diagnosis of that pain?
Dr Felatar: I thought that there were factors, such as her general health and fitness, which were in play. For instance, she discussed a lot having trouble doing things – performing functions around the home – however, she had been working on and off for a number of years. And so, again, my impression was that there was reports of pain which far exceeded the physical findings.
While the Tribunal does not reject Dr Mc McCormick’s evidence, it did not agree with his opinion expressed in his report dated 29 January 2020 that:
2. It is my understanding that the diagnosis and causation of her current condition/s and the relationship to employment in 1997 has been well documented over the years. She was limited by her condition then, and the same limitations apply to this day. It would be foolhardy to suggest that a single examination could negate 23 years of careful documentation and follow up.
3. I totally DISAGREE with A/Prof Romas claim that Ms Harriss currently has no clinically identifiable organic (physical) occupational overuse syndrome condition which is causally connected to her previous Commonwealth employment
Lack of symptoms on the day of examination in a condition that often has negative examination findings does NOT mean the condition does not exist.
The Tribunal notes there was no historical evidence which supported Ms Harriss’ assertion that tenosynovitis, as she described the continual tearing of the tendons, was the identifiable physical injury which underpinned her pain syndrome. The Tribunal finds the view of Dr Kenneth Muirden, consultant rheumatologist, in his 17 June 2003 report, summarised the historical view of the causation and diagnosis of Ms Harriss’ condition, that of a generalised pain syndrome in the absence of any evidence of underlying inflammatory or degenerative disorders:
What do you consider to be the cause of the current condition?
As indicated previously, I consider Ms Harriss’ symptoms commenced with her employment with ATSIC and with her repetitive keyboard activities. Stress in the workplace played a part. I consider her current condition as being an extension of her original difficulties.
…
Do you consider there is any permanent effect or permanent damage caused by Ms Harriss’ condition?
I consider that Ms Harriss’ condition is likely to be persistent but more than 50% of cases of fibromyalgia and regional pain syndrome do settle completely with time. It is not possible to predict how long it will take for the condition to resolve. There is however no evidence of permanent damage to tissue caused by the condition.
…
Limited household help appears appropriate in allowing Ms Harriss to increase her hours of work.
The Tribunal also relied upon the evidence of Associate Professor Romas in response to Ms Harriss’ questioning about her diagnosed tendinopathy (epicondylitis):
Applicant: I have an ultrasound result that shows tears in my epicondyle, fibre tears. What would that indicate?
A/Prof Romas: Yes, that’s a good question. So that’s frequently reported at ultrasound and I frequently see it. I perform my ultrasounds. And that’s entirely consistent with the pathology in constitutional epicondylitis. So in other words, when you see a cleft or discontinuity in the tendon, that’s an inherent feature of the degenerative condition. It should not be misconstrued as indicating external injury or trauma. So this is often misconstrued, often causes confusion. Radiologists will use the term loosely, tear. What they mean is that there’s a discontinuity in the tendon, a cleft in the tendon but the way they use it and the term they use tear would imply to a reader that there must be some external trauma that has caused the tear. Not true.
…
A/Prof Romas: So I was just going to say that if you look at ultrasound examinations in patients who have traumatic epicondylitis, clearly traumatic. In other words, their job is a heavy job, it involves force and repetition, a repetitive, you know, activation of the extensive muscles which connect to the common extensive tendon that we’re talking about and you compare those individuals with sedentary jobs or who are not in an occupational setting and you study the ultrasound – the imaging findings, you finding similar pathology. A similar prevalence of sort of echo abnormalities in the tendon, tendonitis. A similar prevalence of clefts and discontinuities, a similar prevalence of increased vascularity which is a secondary sort of repair mechanism. So in other words, you cannot distinguish on the basis of symptoms or imaging, whether someone has occupational epicondylitis or constitutional epicondylitis and that’s the dilemma. The distinction is made on the history and having regard to what that person does and probability. How likely is it that they would have developed the condition regardless and was their occupation, you know, depending on the prevailing, you know, stringency of whatever worker’s compensation scheme you’re dealing with, what is the probability that their occupation was a significant contributing factor or the most significant contributing factor.
Applicant: Is it not true that static loading – so holding one part of the arm in a static position while only using the fingers is a well-known trigger for a repetitive strain injury?
A/Prof Romas: Well, repetitive strain injury – the problem we have, Ms Harriss, is that the definition of a repetitive strain injury varies across studies and there’s no uniform approach to how you define the problem. People can define it as – in various ways and that creates a difficulty in interpreting, you know, what you read about it. And certainly in as mush as patients who have that diagnosis report pain with activity, well, it applies equally to static loading when they’re typing as to static loading when they’re lifting a kettle. So there’s nothing unique about their occupational activity and that creates a difficulty in interpretation.
Applicant: Well I was thinking particularly the budget scenario where I was using one arm – not to do with typing with the keyboard but using one arm to use the number keys for up to 12 hours a day?
A/Prof Romas: Yes, I mean, clearly you were doing repetitive work but that sort of work would generally not be sufficient to provoke injury. Where the human upper limb is a bit more resilient than that, it is susceptible to injury but keying generally doesn’t produce a substantial injury.
The Tribunal notes that there is a great deal of debate, scepticism and theorising in the medical profession over the diagnosis of pain. This was amply demonstrated in the evidence provided at the hearing by the numerous medical professionals and has been a consistent theme in the diagnoses of Ms Harriss’ condition. On this point, the Tribunal notes the medical report of Dr J.V Brown dated 9 November 2002 who opined:
There is a lot of confusion between the differing pain syndromes, and different medical people will arrive at different diagnoses reflecting the fact that disease descriptions and differentiation are still not clarified in the medical field. On considering Ms Harriss's circumstances I believe the diagnoses that best fits her symptoms at this stage is occupational overuse syndrome.
This contest of ideas over the diagnoses and causes of pain was again at the fore when Comcare sought the views of Dr McCormick on Associate Professor Romas’ report, which Dr McCormick provided in his report dated 1 September 2020:
I have challenges accepting a dogma that only things that can be "measured in an objective way" are real. Many times, in history, a theory has predated experiments to measure it in an objective way. From Pasteur to Einstein, decades or in the case of the last tenet of relativity a century has gone past before it was possible to objectively measure the validity of the proposition.
It would be reasonable to agree on the idea that the terms "overuse syndrome" and "central sensitisation" are at one extreme irrelevant because they cannot be objectively measured, or at the other extreme are simply ideas which science has not yet come up with an answer for. From a logical perspective, it makes more sense to state simply we do not have the answers yet, than to dismiss alternative explanations as invalid.
I will leave it to others to work out which interpretation is more valid, but in the case of Miss Harriss:
1.    Whatever the condition is called, Miss Harriss has an arm problem related to overuse dating back to 1997.
2.    The relationship between her employment has been well documented on multiple occasions.
3.    With a combination of work assistance, home help and Miss Harriss limiting the type of activities she undertakes, the arm problem has been under reasonable control until ...
4.    Comcare decided home help was not required. As a result of taking on housework and gardening duties herself, Miss Harriss' arm condition flared up.
5.    Which leads us to the steroid injection.
Ultrasound guided steroid injection
A/Prof Romas has reminded us that there are two types of pain - those caused by damage or inflammation and neuropathic pain. As noted before one cause for inflammation is tenosynovitis. The ultrasound taken on 20 February 2020 showed:
"There is thickening and fluid of the peritendinous tissues related to the                 abductor pollicis longus and the extensor pollicis brevis tendons."
We now have clear evidence that there is an organic pain syndrome. The only question now is whether this is related to Miss Harriss' employment or is a separate issue.
The facts are as follows:
1.    The ongoing burning pain was in the arm and shoulder which is worse in the morning and late at night radiating to the right elbow, right wrist and right hands. Her elbow and wrist as well as her right hand have been stiff.
2.    Her pain has been consistent over the last few years and she describes her pain level to be 4-5 out of 10. This is the SAME pain that has been accepted in the past as work related.
3.    By and large, she has been managing her pain quite well but has required regular analgesia including tramadol and Digesic and has had acupuncture for pain exacerbation.
4.    In the past she has not had a steroid injection.
5.    She has been retired from work for a few years now, but has flare-ups when she overuses her arm at home.
6.    The recent flare up was directly related to having to do more housework because of her Comcare services being curtailed.
7.    With the cost involved relatively low compared to surgery, and the clear association with work before, we chose to not get permission from Comcare before having an injection.
8.    The injection was ordered and given and had a good response as happened on previous occasions.
In light of this, clearly the injection was appropriate and effective. The relationship to the previous compensable injury is not only logical but also undermines A/Prof Romas argument that Miss Harriss does not suffer from an organic condition.
And again, when Comcare sought the views of Associate Professor Romas on Dr McCormick’s report which he provided in his report dated 28 September 2020:
I disagree with all of Dr McCormick’s opinions.
(i) Dr McCormick implies that objective measurement is not relevant to understanding the nature of regional pain syndrome and evidence may beforth coming in future. Thus, Dr McCormick mentions, that gravity waves were discovered 100 years after they were predicted by Einstein’s general theory of relativity. This was not the first test that general relativity passed.
With regard to science Richard Feynman once remarked, “in looking for a new law of nature…first, we guess it. Then we compute the consequence of the guess, to see if this is right, to see what it would imply. Then, we compare the computational results to experiment, or experience…compare it to directly to observation, to see if it works. If it disagrees with experiment, it’s wrong. In that simple statement, is the key to science. It doesn’t make any difference how beautiful your guess is, it doesn’t make any difference how smart you are or who made the guess, or what his name is. If it disagrees with experiment, it’s wrong”. The “experiment” in this clinical case is objective observation.
No repeatable observation confirms the hypothetical construct of “a regional pain syndrome”. If a theory cannot make testable predictions, or if predictions cannot be tested, it is not science. This is precisely the situation with “regional pain syndrome”. The idea is purely hypothetical. “Naming” a condition is not sufficient to make it real. There is no observation to support physical injury. It is therefore logical to question a construction when no objective observations support the theory, or that theory cannot make testable predictions.
Dr McCormick states Ms Harriss has had the “SAME” pain for over 20 years. However, despite what is now asserted, it is doubtful her current symptoms are identical to the problem she had in 1997, which was accepted as being work-related. Dr McCormick argues for a continuing material contribution to the accepted injury of 1997, which is not supported by evidence. A history from Ms Harriss that her symptoms are now exactly the “same”, is not sufficient, and highly unreliable. Alternatively, if it is found her pain is truly identical (which I doubt) then her symptoms do not indicate a persisting physical injury connected to any “overuse [injury] dating back to 1997”.
(iii) my own assessment does not support Dr McCormick’s observation of ongoing “burning pain in the arm and shoulder which is worse in the morning and late at night [and] radiating to the left elbow, right wrist and right hands…”, to indicate a physical injury or organic pain syndrome which is [causally], as Dr McCormick asserts “related to overuse dating back to 1997”.
(iv) Dr McCormick states Ms Harriss’ “SAME” pain has been accepted in the past as work-related”. However, his opinion does not validate a continuing physical injury caused by her Commonwealth employment. My examination indicated no identifiable physical injury and I cannot link any of her current discomforts to the presumed injury of 1997.
(v) When I examined Ms Harriss, there were no clinical signs of a de Quervain’s tendinitis. However, the sonogram taken on 20 February 2020 was said to show “thickening and fluid of the peri-tendinous tissues related to the [Right] abductor pollicis longus and extensor pollicis brevis tendons”. Even accepting this sonographic finding as accurate, I conclude this tendinopathy is caused purely by constitutional factors which are unconnected to her Commonwealth employment.
(vi) Ms Harriss’ satisfaction with the provided “work assistance and home help” does not in any way validate her current arm “problem” as being a persisting physical injury, much less a physical condition which is causally connected to her previous Commonwealth employment. Dr McCormick dates Ms Harriss’ arm condition flared up as a result of housework and gardening duties when her home help was withdrawn. However, the wrist condition is a tendinopathy which was not present in 1997 and is not a consequence of the 1997 injury.
(vii) The outcome of a steroid injection cannot inform the cause of the tendinitis because both non-occupational tendinitis (from ageing) and occupational tendinitis respond similarly. Whether or not third-party permission is obtained to undertake a steroid injection, cannot inform the cause of the tendinitis condition, or the rationale or outcome of the injection.
…To conclude, having regard to my own clinical findings, there is no identifiable organic (“physical”) pain syndrome. The previous diagnosis of a “regional pain syndrome with central sensitisation” (by Dr Jain), is tenuous, and not verifiable as a physical injury. Ms Harriss’ current right upper limb symptoms and diagnosis of right wrist tendinitis are not caused by her Commonwealth employment.

While the Tribunal notes with pleasure the philosophical treatises in this exchange, it did not assist in providing a plausible explanation to Ms Harriss as to why Comcare reduced and then cancelled her benefits. Ms Harriss has reasonably enquired why Comcare has discarded 24 years of previously accepted medical opinion, treatment, and physical evidence in the form of ultrasounds and pain management techniques.
Fundamentally, the Tribunal has in one corner consultant rheumatologists who have all found no identifiable organic (‘physical’) pain syndrome, evidence of epicondylitis, tendonitis or other physical disease to account for Ms Harriss’ symptoms. Additionally, all the specialists have noted that Ms Harriss presented with normal colour, temperature and no sweating of the upper limbs; no oedema; a full range of movement of the fingers, wrists and elbows; she demonstrated full power in all muscle groups in both upper limbs and has normal reflexes in the upper limbs. All the specialists have opined that her current symptoms are not work related.
In the other corner, the Tribunal has Ms Harriss’ numerous general practitioners who have all consistently found that Ms Harriss has pain in her right arm radiating from the shoulder into the wrists. Ms Harriss’ general practitioners consistently observe that Ms Harriss reports pain and tenderness. They all concluded she is suffering from some form of pain syndrome which they determined was work related as Ms Harris first reported experiencing the pain while at work. For example, Dr McCormick’s report dated 29 January 2020 states:
Ms. Harriss has had a long history of an occupational overuse injury and regional pain syndrome which she sustained in 1997 as a result of repetitive keyboard work. She has suffered from recurrent right shoulder pain which radiates down the right arm associated with pain around the right lateral epicondyle and down to right wrist. She has had associated weakness and tenderness of the right arm. Pain is aggravated by physical activities, lifting and period of intense repetitive work. She is right handed.
Her pain consisted of ongoing burning pain in the arm and shoulder which is worse in the morning and late at night radiate to right elbow, right wrist and right hands. Her elbow and wrist as well as right hand has been stiff. Her pain has been consistent over the last few years and she describes her pain level to be 4-5 out of 10.
On the contemporaneous medical evidence, the Tribunal is not satisfied that Ms Harriss continues to suffer from the previously accepted condition of occupational overuse syndrome.
The Tribunal prefers the opinion of Associate Professor Romas who could find no identifiable physical injury, or link any of her current symptoms to the accepted injury of 1997. The Tribunal finds this was consistent with the findings of numerous specialists over the years. The Tribunal determines that with no underlying presentation of any pathology to account for the reported levels of pain experienced by Ms Harriss, there is no evidentiary basis to conclude that her current pain was caused by her former employment with the Commonwealth.
The Tribunal finds it difficult to associate the level of pain Ms Harriss reports today and her occupational overuse injury, given she left Commonwealth employment 17 years ago, without some organic explanation. Again, the Tribunal prefers the findings of Associate Professor Romas who stated in his 28 September 2020 report:
Another interpretation is that, Ms Harriss at most, in 1997 had a soft tissue neck and/or right upper extremity injury. In view of the absence of objective signs of continuing injury, it is logical to conclude, that the soft tissue injury quickly and fully resolved, in line with usual experience. Certainly, the effects of ageing, of degenerative tendinitis and arthritis are relevant and can explain many of Ms Harriss’ current symptoms, but none of these are occupational. Therefore, a claim based on a persisting regional pain syndrome “injury” is not valid, unless the injury suffered in 1997 has demonstrably persisted, or it has caused consequential injuries, and those secondary injuries also persist. No such evidence exists.
The Tribunal does not dispute that Ms Harriss has pain. The Tribunal does not contend that Ms Harriss never suffered from occupational overuse syndrome. The Tribunal appreciates that its determination may seem incongruous to Ms Harriss and her general practitioners given the long-established acceptance of Ms Harriss’ condition. However, the Tribunal cannot establish, beyond a generalised identification of pain suffered by Ms Harriss, that there was a record or diagnoses of an injury at work in 1997 which could account for the pains levels she continues to experience today.
In coming to this view, the Tribunal relied upon Associate Professor Romas’ contemporaneous finding in his 28 September 2020 report that:
Ms Harriss now clearly has several degenerative medical conditions including osteoarthritis of the thumb base and wrist tendinitis, which are not connected with her Commonwealth employment, and should not be conflated with a previous diagnosis of “regional pain syndrome”.
For these reasons, the Tribunal is satisfied that on and from 22 October 2020, Ms Harriss did not continue to suffer from occupational overuse syndrome and that she:
(a)Does not require reasonable medical treatment in relation to the injury such as to be entitled to compensation under section 16 of the SRC Act; and
(b)Does not reasonably require household services as a result of that injury such as to be entitled to compensation under section 29 of the SRC Act.
Prior to 22 October 2020, did the accepted injury result in a reasonable requirement for household services, and if so, what level and type of services were appropriate?
The Tribunal prefers the opinions of Associate Professor Romas and Dr Feletar who both determined that Ms Harriss does not require household services. Dr Feletar’s evidence summed up the views of most specialists who had reviewed Ms Harriss over many years:
Member: So that wouldn’t lead you to the conclusion that she still required ongoing assistance at home from Comcare?
Dr Felatar: She presented as an able-bodied person. She walked in the door, she sat down, she was able to get on and off the chair. She had looked after herself for many years. Thereby, the assumption is that there are many things that she does for herself around the house. And shopping and all of those daily functions that we need to perform, hygiene, and cooking. So my professional impression is that she did not need assistance based on her Comcare claim
The Tribunal determines that Ms Harriss was entitled to benefits up and until 22 October 2020, being the date of the determination that Ms Harriss no longer had a compensable injury.
The Tribunal considers the level of household assistance recommended by Mr Angel was appropriate for Ms Harriss as it ensured she would be able to maintain her home to an acceptable standard whilst encouraging a level of independence. The Tribunal determines this level of support should be in place from 1 November 2018 to 22 October 2020.
The Tribunal did not consider it reasonable in all the circumstances to discontinue Ms Harriss services earlier than the 22 October 2020 as prior to this date Comcare had accepted Ms Harriss continued to suffer from a compensable injury.
Ms Harriss was concerned that a therapeutic goal of 'increased independence' had been introduced by Comcare without discussion with herself or her treating doctors. Mr Angel’s report makes no reference to therapeutic goals, but it does address the goal of increased independence, as Mr Angel’s evidence at the Tribunal stressed:
Applicant: Where do we get the goal of increased independence?
Mr Angel: So that’s part of the Comcare’s recommendations and their recommendations… And then finally, “Identify amount and frequency and professional household attendant care services reasonably required for a task and then gradual reduction of services where reasonable to achieve maximum independence.” So it’s always a goal of looking at what can be worked towards independence, not necessarily if, you know, a claimant or an individual states that that’s their goal. That’s the lens that I have to make my assessment on.
…
Member: So part of your recommendation is that for people’s own physical and mental wellbeing is that they actually undertake some of these tasks themselves?
Mr Angel: Yes, the whole ethos of occupational therapy is that we’re assisting people to engage in purposeful and meaningful activity because that has a really positive impact both physically, psychologically and emotionally. So it would be against my learning as an occupational therapist to not encourage independence.
Mind you, all of us may agree that cleaning the toilet really doesn’t tick any of those boxes but, you know, it’s just a necessity of life, unfortunately, but, you know, actually getting down - - -? I would say that it’s purposeful. It would definitely be purposeful
The Tribunal appreciates Ms Harriss’ sentiment that she did not consider household work a rewarding experience and that she chooses to expend her energy and associated exacerbation of pain on pursuits that give her life meaning and purpose. While the Tribunal can appreciate that cleaning is purposeful, it cannot embrace Mr Angel’s view that it is meaningful. However, the Tribunal also appreciates that individuals should be encouraged to be independent and not become reliant on services. The Tribunal concurred with Mr Angel’s important note in the home assessment report dated 7 September 2018, that ‘Ms Harriss has been receiving assistance for a considerable amount of time, therefore motivation to shift toward independence may be limited’.
The Tribunal notes that numerous specialists have all advised Ms Harriss to be more active, as this will greatly benefit her physical and mental wellbeing. This in turn they argue will lead to reduced levels of pain. The Tribunal notes that given Ms Harriss is physically able to perform numerous other activities, it is not unreasonable, and indeed many would argue beneficial, for her to undertake some of her own household work. Section 29(2) of the SRC Act outlines that when determining the level of household services, Comcare may take into account ‘the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date’. The Tribunal therefore determines in this period the level of services determined by Comcare were appropriate as they took into account Ms Harriss’ ability to perform tasks while encouraging greater independence.
The Tribunal notes household assistance was first recommended to assist Ms Harriss’ return to work process. Obviously, this is no longer a therapeutic goal. Section 29 of the SRC Act provides that an individual may obtain household services they reasonable require as a result of their injury. Given Ms Harriss’ injury is no longer impacted by overuse from excessive keying at work, it is unreasonable for them to provide weekly cleaning, as in retirement she cannot reinjure herself continually from overuse.
Ms Harriss argued that the level of service was insufficient to meet her physical and practical needs in the running, management, and maintenance of her home environment as it would not result in an acceptable level of cleanliness and did not take into account the fact that her home was located in a windy and dusty rural area, or her sinus condition. The Tribunal notes it was Ms Harriss’ choice to relocate to this area and she should have considered the environmental impact on her when making that decision. Ms Harriss’ sinusitis is not a compensable injury and forms no part of determining the reasonableness of her household services.
The Tribunal finds that cleaning services for two hours per fortnight and lawn mowing for two and half hours per fortnight from November to March and two and half hours every three weeks from April to October, was reasonable for a single woman to ensure an acceptable standard of cleanliness.
CONCLUSION
The Tribunal, having considered all the evidence before it, determines that on and from 22 October 2020 Ms Harriss did not continue to suffer from occupational overuse syndrome.
The Tribunal, having considered all the evidence before it, determines that Ms Harriss was entitled to reduced household services of:
(a)Household cleaning services for two hours per fortnight from 1 November 2018 until 22 October 2020;
(b)Lawn mowing services for two and a half hours every fortnight, covering the period from 1 November 2018 to 31 March 2019; and
(c)Lawn mowing services for two and a half hours every three weeks, covering the period from 1 April 2018 to 31 October 2019.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

..............................[sgd]...............................
Associate
Dated: 13 December 2021

Dates of hearing: 27 to 29 September 2021

Applicant: Self-represented

Counsel for the Respondent: Mr Roy Seit

Solicitors for the Respondent: Ms Genevieve Rush of Moray & Agnew Lawyers

[2021] AATA 4605

13 December 2021

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Remedies

Statutory Construction

Appeal

Dates of hearing:	27 to 29 September 2021
Applicant:	Self-represented
Counsel for the Respondent:	Mr Roy Seit
Solicitors for the Respondent:	Ms Genevieve Rush of Moray & Agnew Lawyers