JODIE CUMMING and COMCARE

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 591

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3448

GENERAL ADMINISTRATIVE DIVISION		)
Re		JODIE CUMMING

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date10 August 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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Senior Member

15. I reach that view with some hesitation given Dr Webb is a rheumatologist, which I understand is the relevant specialist discipline. Given that hesitation, I thought it appropriate to consider whether the respondent would be liable if a diagnosis of fibromyalgia were made out. As it happens, I do not think it would be liable under the Act given the requirements imposed by s 5B. There is simply not enough evidence before me to persuade me that Mrs Cumming’s experiences at work contributed to the onset of the condition, or aggravated an underlying condition. I note Dr Hart asserted there is a connection but he did not explain the nature or extent of the contribution. The same comment can be made about Dr Dias’s opinion. Dr Webb did not address the issue of causation at all. That is unsurprising since I understand there is doubt about the causes of fibromyalgia.

16.     That leaves the question of tennis elbow. The dispute here is between Professor Atkinson, who said there is no evidence of tennis elbow, and Dr Hart, who was disposed to think there may be a mild case of bilateral epicondylitis. Dr Corbett’s tests did not appear to disclose any problems. Dr Webb said there is nothing else wrong with Mrs Cumming, although I have already noted that examination has been criticised.

17.     I am not persuaded that Mrs Cumming experienced bilateral epicondylitis. I am persuaded in particular by the evidence of Professor Atkinson, a well-credentialed expert, which appears to be consistent with the objective evidence generated by Dr Corbett’s tests.

Conclusion

18.     

The fact I am not able to settle on a precise diagnosis is not fatal to the applicant’s claim: see Australian Postal Corporation v Lucas [1991] FCA 612;

(1991) 25 ALD 266 at 272 per Burchett J. But as I said at the outset of these reasons, I need to be persuaded that something in the nature of an injury or disease caused Mrs Cumming’s pain. The respondent says there is nothing that would answer that description. Mr Pappas argued that the best explanation for Mrs Cumming’s condition is really quite simple: she was not used to typing so intensively. She leads a comparatively sedentary lifestyle, and she did not customarily exercise or otherwise use many of the muscles that were suddenly and intensively used when she was typing in November 2007. She simply experienced soreness and fatigue as a result of the intense experience. The problem gradually resolved itself once she stopped using the muscles in that intense way. She did not actually injure her body or aggravate any condition. In short: she just got sore.

19.     I am ultimately…