JODIE CUMMING and COMCARE

[2009] AATA 591

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.

......................[Sgd]........................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Injury – Claim for fibromyalgia and mild bilateral epicondylitis – Whether applicant suffered from or an aggravation of an injury in the nature of a disease – Whether employment contributed to disease to a significant degree – Decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14

Australian Postal Corporation v Lucas [1991] FCA 612; (1991) 25 ALD 266

REASONS FOR DECISION

10 August 2009  Senior Member Bernard J McCabe        

1. Mrs Jodie Cumming, the applicant, is not sure what caused the pain she experienced in both of her arms during 2007-2008. She works for Centrelink. She says the pain became apparent while she was doing a lot of typing and repetitive work at the office. She has asked for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) because whatever condition caused the pain must be work-related. At a minimum, she says she is entitled to be reimbursed the cost of medical treatment. Comcare, the respondent, says it is not liable under the Act.

2.      The respondent agrees I am not required to settle on a formal diagnosis of Mrs Cumming’s condition, but I must be satisfied that something is causing the pain. Mr Pappas, counsel for Comcare, says pain is not an injury or disease within the meaning of s 5A of the Act. Pain is not compensable in and of itself. In any event, Mr Pappas says there is not enough evidence to satisfy me that any of the applicant’s mooted condition “was contributed to, to a significant degree, by [the] employee’s employment…”: s 5B.

The evidence of mrs cumming

3.      Mrs Cumming gave evidence at the hearing. The following observations are gleaned from her evidence, and I understand them to be uncontroversial. She has been working for Centrelink in a variety of roles since 1988. Until 2007, she worked in the Casino office. She transferred to the Gold Coast with her family in that year and began work in October at the Biggera Waters office. She requested the transfer because Biggera Waters is a bigger office with more opportunities for professional development. Shortly after she arrived, she was asked to deal with a backlog of material relating to age pensions. She said she was asked to do the work because she had the training and experience to deal with the material. She worked intensively each day for several weeks until the backlog was clear. The job involved reading correspondence and then entering the information she gathered into the computer. She was doing that for around six hours a day.

4.      The job involved a good deal more typing than she was used to doing. She said she began to experience pain in her hands: first one, then both. Initially, she coped by shaking her hands and taking quick breaks. Over time, however, the pain persisted and steadily grew worse. She consulted colleagues and her team-leader. Changes were made to her work-station, but the changes did not make much difference to the steadily worsening pain. She was told to see a doctor, and she obtained treatment. She also saw a physiotherapist and specialists. She had some time off work and her duties were modified when she returned to work. Her pain did not settle down for sometime, although it has now abated.

5.      I accept Mrs Cumming is telling the truth when she said she experienced intense pain and discomfort at the relevant time. At the hearing, where she represented herself, she explained that she was no longer in any pain: the symptoms settled after making adjustments to her work and home life. She made it clear that she did not know what was wrong with her and did not have a firm view as to what diagnosis was appropriate. She insisted she was not depressed or anxious, and she added she is now very happy at work. She said she was not unhappy with the work she was doing at the time the symptoms first appeared. She added she was frustrated that none of the doctors whom she had consulted has offered a clear explanation for her pain. She said she assumed the problem was related to her work because the pain arose when she was doing a lot of typing and repetitive work, and it has subsided now that she is doing much less work of that nature.

6.       Mrs Cumming presented as an articulate, intelligent, candid and honest witness. She did not appear stressed or obsessed with the litigation process. I did not see any evidence of her attempting to exaggerate her story or fashion her evidence.

The medical evidence

7.      The medical evidence is inconclusive. Professor Atkinson, a neurosurgeon with excellent academic credentials, opined the applicant does not suffer from any physical ailment that would explain the pain. He said Mrs Cumming did not suffer from fibromyalgia, although it is apparent from his comments that he does not have much faith in that controversial diagnosis in any event.

8.      Dr Hart, Mrs Cumming’s treating musculo-skeletal specialist, appeared to accept a diagnosis of fibromyalgia and mild bilateral epicondylitis (ie, tennis elbow). In his report (at Exhibit 1, at 63-64), he did not appear especially convinced of either diagnosis. His diagnosis of fibromyalgia appeared to be strongly influenced by the fact Mrs Cumming had been diagnosed with fibromyalgia in the past. He asserted that work factors – most obviously the increased typing – had caused the symptoms. He did not explain how.

9.      Dr Corbett, a consultant neurologist, considered that Mrs Cumming did not suffer from fibromyalgia. His report, dated 24 April 2009, said Mrs Cumming’s problems were “mainly musculo-skeletal, rather than being due to primary neurological pathology”.

10.     Dr Dias, the treating general practitioner, said Mrs Cumming suffers from fibromyalgia.

11.     

Mrs Cumming said at the hearing she had recently been referred to see

Dr Webb, a rheumatologist. That information was new to the respondent. The hearing was briefly adjourned to allow a copy of the specialist’s report to be obtained from Dr Dias. Dr Webb’s report indeed opined that Mrs Cumming suffered from fibromyalgia. The report did not shed any light on how that condition might have come about. Dr Webb said there was nothing else wrong with Mrs Cumming.

12.     

Dr Webb’s evidence must carry weight because he is a specialist with expertise in dealing with conditions like fibromyalgia. His evidence only became available at the last moment, but the respondent did not wish to cross-examine him nor did it seek an adjournment to obtain its own report. However, I also note

Mrs Cumming said she was not particularly satisfied with Dr Webb’s approach at the examination. She said the whole process happened very quickly.

13.     A number of other individuals – including physiotherapists and work colleagues – prepared reports that tend to support Mrs Cumming’s claims that she experienced pain. That evidence is of only limited use when it comes to the question of isolating what is wrong with Mrs Cumming.

14.     What should I make of all this? I shall leave to one side the controversy that surrounds the diagnosis of fibromyalgia. Dr Webb said that is the appropriate diagnosis. Dr Hart opined Mrs Cumming may have had that condition for some time (she had been diagnosed with it before), and it was aggravated by the circumstances of her work. Dr Corbett disagreed. Professor Atkinson, the best credentialed of the experts (albeit in the field of neurology) thought Mrs Cumming did not suffer from that condition. On balance, I am not persuaded that Mrs Cumming suffers from fibromyalgia. I take that view in light of:

·the criticisms of Dr Webb’s examination and the lack of conviction apparent in Dr Hart’s opinion; and

·the firm expression of opinion from Dr Corbett and Professor Atkinson.

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 persuaded that Mr Pappas’s explanation is right. I do not mean to suggest Mrs Cumming did not experience real pain and discomfort in the period in question. But I am not persuaded that she is suffering from, or has suffered from an injury or disease, or an aggravation of an injury or disease, that can be traced back to her employment. In those circumstances, I must affirm the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.............................[Sgd].................................................
  Michael Buckingham, Associate

Date of Hearing          5 August 2009
Date of Decision        10 August 2009
Applicant was self-represented     

Counsel for the respondent            Mr J Pappas

Solicitor for the respondent           Australian Government Solicitor