Keceski and Comcare (Compensation) - [2023] AATA 1265

Keceski and Comcare (Compensation) [2023] AATA 1265 (18 May 2023)
Division:GENERAL DIVISION
File Number(s): 2020/6213, 2021/2611
Re:Vera Keceski
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:18 May 2023
Place:Sydney

In accordance with subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decisions dated 22 September 2020 and 7 April 2021 are affirmed.
...............[SGD].........................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
WORKERS COMPENSATION – Whether employee entitled to compensation pursuant to s 12 or s 16 in respect of injury – repetitive strain injury (RSI) – chronic pain condition – conflicting medical evidence – somatic condition – causation
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation & Compensation Act 1988 (Cth) ss 4, 6, 7, 14, 16, 19, 23
CASES
BWFS v Comcare [2021] AATA 324
Comcare v Power [2015] FCA 1502
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Howard v Comcare [2019] FCA 1031
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
18 May 2023
INTRODUCTION

These proceedings involve two applications by Ms Vera Keceski (the Applicant) for review on the merits of reviewable decisions made by Comcare (the Respondent) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The first application (the NPE decision) relates to a decision by Comcare to terminate ongoing support for Ms Keceski on the basis that she no longer suffers the effects of an accepted injury. The second application relates to a refusal by Comcare of her claim for compensation for a chronic pain condition (CPC) said to have occurred in the course of her employment.
CHRONOLOGY
On 5 February 2014, Ms Keceski claimed workers compensation for repetitive strain injury (RSI) sustained in the course of her employment with the Department of Human Services (‘the Department’ - now Services Australia).[1] On 7 April 2014, Comcare accepted liability for ‘sprain of unspecified site of elbow & forearm (right) and wrist sprain (right)’.[2] The injury was deemed to have occurred on 27 June 2013.[3] On 8 May 2017, she lodged a further claim for ‘left lateral epicondylitis and left wrist tendonitis’. Comcare accepted the claim on 6 February 2018, with the date of injury being 24 April 2014.[4] The delegate accepted the findings of Dr Matthew Paul, and Dr Simone Ryan, two occupational physicians, who examined Ms Keceski at the request of the Respondent.
[1] T7, 25, 29.
[2] T12, 54.
[3] T12, 58.
[4] T73, 356, 362.
The NPE decision
On 7 July 2020, Comcare sent Ms Keceski a notice of intent to cease her entitlements, to which she replied in detail on 5 August 2020.[5] On 12 August 2020, Comcare issued a ‘No Present Entitlement’ (NPE) certificate.[6] The comprehensive report provided by the authorised delegate determined that she no longer suffered from any injury to which her employment made a significant contribution.[7] This conclusion drew heavily on a report dated 30 December 2019 by Dr Mark Ridhalgh, Consultant Orthopaedic Surgeon.[8] The delegate stated:
I am not persuaded away from my view that, on balance, Ms Keceski’s employment has not and does not contribute to a significant degree to her current presentation, which is unrelated to the physical injuries suffered in 2013 and 2014.[9]
[5] T80, 417; T81, 418.
[6] T83, 446.
[7] T82, 427, 444.
[8] T78, 390, 396.
[9] T82, 427, 444.
On 22 September 2020, Comcare affirmed the NPE decision on internal review (the first reviewable decision).[10] This terminated Ms Keceski’s entitlements to compensation for medical treatment, incapacity benefits, or household services. On 9 October 2020, she applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.[11]
[10] T85, 450, 458.
[11] Matter 2020/6213: T2, 3, 5.
Chronic Pain Condition (CPC)
On 12 October 2020, Ms Keceski submitted a further claim for ‘Bilateral Chronic Pain, Bilateral RSI’ first noticed in January 2015.[12] The newly reported condition related to ‘Both hands, both thumbs, both wrists, outer and inner arms below elbow, both shoulders across back and up into neck on both sides’.[13]
[12] PT4, 6, 7.
[13] PT4, 8.
On 25 February 2021, the claim officer determined that Comcare was not liable to pay compensation pursuant to section 14 of the SRC Act in respect of the claimed pain condition.[14] On 7 April 2021, Comcare affirmed this decision on internal review,[15] based on a detailed report prepared by a delegate.[16] Ms Keceski also applied to the Tribunal for review of this decision.[17]
[14] PT6, 14; PT8, 26.
[15] PT14, 63.
[16] PT13, 53-62.
[17] Matter 2021/2611: PT2, 3.
LEGISLATION
The following statutory provisions of the SRC Act are relevant to these applications.
Section 4 provides definitions of ‘aggravation’ and ‘ailment’ as follows:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 5A provides:
(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.
Section 5B of the SRC Act provides:
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.
Section 14 provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16 provides:
(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.
Section 29 provides:
(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.
In summary, Comcare is liable to pay compensation ‘in respect of an injury’ suffered by an employee if ‘the injury results in’ incapacity for work or impairment under section 14. Certain medical costs ‘in relation to the injury’ may be recovered from Comcare under section 16. Comcare is liable to pay for certain household expenses obtained ‘as a result’ of an injury under section 29.
BACKGROUND
The following outline is taken from various sources for the purpose of historical narrative.
Ms Keceski was born in 1965.[18] She is one of two children but is estranged from her brother. Her mother died when she was 26 years old.[19] From 2012 she provided for her father who suffered Parkinson’s disease. He died in September 2021. She had two substantial relationships but was single at the time of the hearing. She has a 37-year-old daughter and lives alone.[20]
[18] Applicant’s Statement, para 2, ST91, 501.
[19] T4, 15.
[20] ST85, 428.
Between 1985 and 2007 she worked in various administrative and managerial roles, including for Australia Post as a customer service adviser from 2003 to 2007.[21]
[21] Pre-Employment Medical Report and Questionnaire: ST2, 8.
In early 2007 she applied for a job with the Child Support Agency (CSA). She was then employed as an APS level 3.
On 23 February 2007, she completed a mandatory Health Status Assessment form.[22] The form stated explicitly that the purpose of the assessment was to assist the CSA and the candidate for employment to determine their medical compatibility with the requirements of the job. It was intended to ensure that a phone intensive environment would not exacerbate or worsen any underlying medical condition, and to ensure that an existing condition did not interfere with a person's capacity to do their job. She did not disclose any previous medical history. She completed and signed the form in the presence of a medical examiner. Given the stated absence of any reported neck or lower back injuries, upper or lower limb problems, or psychological conditions,[23] the medical examiner confirmed that she was medically suitable to perform the duties she was required to perform.[24]
[22] Ibid, ST2, 11.
[23] Ibid, ST2, 12.
[24] Ibid, ST2, 18.
On 26 March 2007, she started working as an Employment Services Officer (APS4) in the CSA. Her initial role involved making decisions about child support where parents objected to an assessment. This was referred to as ‘Objections’.
From 2009 she experienced conflict with her colleagues.[25] She was also the subject of complaints about her behaviour by customers and colleagues, which she strenuously denied.[26]
[25] Applicant’s Statement, para 6, ST91, 501.
[26] ST90.
In 2011, she was the subject of a complaint by colleagues about her treatment of them.[27] Although she was cleared after inquiry, she received a formal warning. Following this incident, she provided a Workcover certificate which referred to stress and anxiety.[28] She was off work from 28 May – 15 July 2011. She applied unsuccessfully for workers compensation. Details of this application have not been provided to the Tribunal but are referred to in various medical reports.[29]
[27] ST90, 481.
[28] ST90, 481
[29] ST90, 482. See for example, report by Dr Frank Chow dated 21 March 2017, T62, 295, at 296: “She said she put in a claim in 2011 after she was accused of yelling at other staff. She stated she eventually pulled out of the claim.” Dr Ridhalgh refers to this matter as well.
On 11 July 2011, Dr Rosalie Wilcox, psychiatrist, referred to her compensation claim and opined that she had an adjustment disorder with depressed and anxious mood, together with an obsessive-compulsive personality.[30]
[30] T4, 11, 16 (2020/6213).
She returned to work on 15 July 2011 with a 20% work reduction. From August 2011 she raised concerns about her work allocation. Her disputes with management continued throughout 2012 and she took more leave.
After returning from leave in October 2012, she was moved to Employer Services.[31] She appealed unsuccessfully against her transfer. She perceived that her new role in Employer Services was more keyboard intensive than in the Objections area. She had difficulty keeping up with her assigned workload. She became deeply distressed by what she saw as unfair work practices. Her arguments with her team leader about work allocations were conflictual.
[31] ST90, 484.
In late 2012 she requested a return to a full-time workload because her partner had lost his job. On 2 December 2012 she commenced full time employment.[32] She stated:
My role as an Employer Services Officer essentially required me to perform continuous keyboard data entry with mouse operation, updating client records, registering payments and typing emails in a fast paced, high volume work environment with end of month financial settlement deadlines. I often worked through my tea breaks. When I first started the new role as an Employer Services Officer, I was working part time, however I increased my hours to full time, 37.5 hours per week, from about December 2012.[33]
[32] ST90, 484.
[33] Applicant’s Statement, para 9, ST91, 502.
She told the Tribunal that her work changed “massively” when she was moved to the Employer Services area. She said there was a greater emphasis on data entry. Her hand was constantly on the mouse or keyboard, and she was processing all the time in a high paced environment. By contrast, in Objections she was interviewing parents, speaking on the phone, reading documents, and writing reports.
She said that she took some time off in 2013. When she returned to work, she was on reduced hours due to a recommendation contained in a medical report, working four hours for three days a week, and using only her left hand. There is no record of the implementation of the reduced work requirement. However, Ms Keceski indicated that her workload was reduced.[34]
[34] Applicant’s Statement, para 16, ST91, 503.
She said that her team leader told her that he had reduced her workload but, some months later, she formed the view that the reduction in her workload did not allow for using her non-dominant hand.
She said that around this period, she received praise from an interstate-based manager who was visiting her workplace that she was “amazing” because she was using her non-dominant hand on the mouse.
In April and May 2013, she started to experience pain in her dominant right hand. On 19 June 2013 she made an incident report. She stated that “using mouse at workstation has caused strain in right [h]and”.[35] She sustained a “strain in right hand” affecting her “hand and fingers”. A workstation ergonomic assessment was undertaken.[36]
[35] T5, 20. The ‘h’ of ‘hand’ is missing in the file copy.
[36] T6, 22.
There were significant disputes with her various team leaders between 2009 and 2014. She claims to have been given an unfair workload, micro-managed and harassed.[37] She had significant work absences.
[37] ST90, 480-500.
In August 2013, she received an unfavourable rating from her supervisor. She was put on a performance management program called Back on Track (BOT).[38] She appealed unsuccessfully against this adverse assessment.[39]
[38] Statement, 21 October 2022, Mark Salmon, supervisor (Item 25), paras 19-21.
[39] See K. Emerton, Review of Actions Report: ST56, 187.
She states that her right wrist symptoms abated but did not resolve completely. They flared up again in October 2013. She found that her symptoms eased each night but recurred when she started work the next day.[40]
[40] Applicant’s Statement, para 14, ST91, 503.
On 11 October 2013, Dr Alan Perks issued a Workcover certificate for a “right forearm/ hand pain, repetitive strain injury”. The certificate required a ten-minute rest break every hour.[41] She continued working, but with the restrictions recommended by Dr Perks.[42]
[41] Applicant’s Medical Certificates, June – November 2013, T87.
[42] Applicant’s Statement, para 16, ST91, 504.
Her symptoms became worse by December 2013. She developed constant pain and tightness in her right wrist/forearm/elbow areas. Her symptoms no longer eased on ceasing work each day but were constant. They started to interfere with her sleep.[43]
[43] Applicant’s Statement, para 16, 503.
In late 2013 and early 2014 she was assessed as not meeting the BOT requirements, but she appears to have done so in February 2014.[44]
[44] ST90, 489.
In early February 2014 she reduced her work hours to 12 hours per week, working Monday, Wednesday, and Friday.[45]
[45] Report by Dr Ryan, T13, 63. See also Report by Dr McGill, p 5.
As noted above, on 5 February 2014, she applied for workers compensation claiming that she sustained ‘repetitive strain injury RSI in Right hand’.[46]
[46] T7, 25, 29.
On 13 March 2014 she was examined by Dr Ryan, who reported:
Ms Keceski stated that her pain varies from 0/10 up to 8/10 with 10 being unimaginable on a pain score. She reported 8/10 pain is triggered with activities such as opening a car boot and flicking through some papers. She stated at rest she is essentially pain free. Ms Keceski stated that when her pain is 8/10 she described it as a shooting pain with throbbing like properties and an associated burning, cramping and tightness, She stated that popping her father’s medications triggers her pain and picking up her jewellery box or needing to put jewellery on also triggers pain. She is under the care of her hand therapist and stated that her current capacity is lifting a 2kg dumb-bell and she does this pain free but is unable to lift, for example, a 2kg packet of sugar due to the change in anatomical posture to do so.[47]
[47] T13, 64.
On 7 April 2014, Comcare accepted liability for sprain of unspecified site of elbow & forearm (right) and wrist sprain (right),[48] deemed to have occurred on 27 June 2013.[49]
[48] T12, 54.
[49] T12, 58.
The time-line document produced by the Respondent reveals a set of emails sent by Ms Keceski in early April 2014 to her team leader. Some were of an intemperate nature. For example, on 11 April 2014 she sent an email to her team leader containing the following passage:
... you are disinterested and I'm sick of you making claims. You're a manipulating extraordinaire. I want to stand on the railway track to avoid working you. You make my life impossible. Here I am with both arms bandaged, because of you. The look on your face says it all.... You don't lift a finger to help me. You go out of your way to affect me. My anxiety is from working with you. I would rather scrub toilets than to see your face[50]
[50] ST90, 490.
On 14 April 2014, Dr Ryan provided a report at the request of the Department of Human Services based on an assessment of the Applicant on 13 March 2014.[51] She opined that Ms Keceski was suffering from Occupational Overuse Injury of the right upper limb and particularly the right common extensor muscles, partially treated. She had been inappropriately medically managed for a period of eight months to the point that her pain was so severe that she was entirely incapacitated from her activities of daily living.[52]
[51] T13, 62.
[52] T13, 67.
Ultrasound tests performed on 15 December 2014 indicated:
Ultrasound – Both Wrists – (15 December 2014): This showed some four sheath effusions in the right ECR and left ED tendon sheaths with possible sheath synovitis.
Ultrasound – Both Elbows (15 December 2014): This showed evidence of common extensor tendinopathy with areas of partial tearing on each side. A small right sided triceps distal partial tear noted.[53]
[53] Report of Dr Matthew Paul dated 12 September 2016, occupational physician, T47, 244.
In around March 2016, Ms Keceski was provided with dictation software. She said that only staff who reported RSI issues were given this aid. She said that the software was difficult to use, clunky and unhelpful. It was often non-responsive, engaged spurious actions or just stopped working. She said that the need to log issues with the IT section within the Department added to her workload.
She said that between early 2016 and May 2016, her hours of work gradually increased. She was moved from Employment Services to the Debt department because the dictation software was in use there. It was also thought to be a slower paced environment, and she found it to be so. She got close to full time before leaving in 2016.

Sometime between May and August 2016, she went on sick leave, and has not worked in paid employment since.[54]
[54] Applicant’s Statement, para 48; ST91, 506. She states that she has not worked since June 2016. Nothing turns on the discrepancy.
In a report dated 12 September 2016, Dr Paul stated:
The history is compatible with a work related aggravation of her underlying degenerative condition and the extensor tendons and synovitis which is thought to be work related in the bilateral wrists.
She has gone on to develop what appears to be a chronic pain syndrome with a significant psychological overlay, probably contributed to by an underlying and pre-existing anxiety condition. This warrants further investigation by an attendant psychiatrist to determine if there is a work related condition and requires further assessment and treatment.[55]
[55] T47, 245.
In a further report dated 21 July 2017, Dr Ryan noted that Ms Keceski had clearly deteriorated since her earlier review in 2013.[56] She reviewed various medical reports. It was “widely recognised” that Ms Keceski had chronic right lateral epicondylitis, symptomatic right wrist extensor tendonitis, left lateral epicondylitis and left symptomatic wrist tendonitis.[57] She confirmed her opinion that Ms Keceski was suffering from bilateral upper limb repetitive strain injury, otherwise known as occupational overuse syndrome.[58] She recommended that her keyboard work should be limited to 15-20 minutes of keying an hour or that she be placed in a non-keyboard environment. She considered that she would never return to her pre-injury duties.[59] She also recommended that she be considered for other kinds of work, stating:
Unrelated to the case of Ms Keceski, it should be noted that I have undertaken several extensive worksite assessments at various government departments including Centrelink. I am not familiar with the child support environment, however I am well-familiar with a rostered in-bound and out-bound call centre environment. Ms Keceski will never return to this phone-based scenario - within child support, Centrelink or Medicare. Within my area of expertise two of the options for Ms Keceski would be to transfer her to a Centrelink environment where she could certainly undertake Customer Liaison Officer (CLO) work sitting in an ergonomically optimised front of house scenario for Centrelink with incoming customers needing triage and concierge. She would also be well equipped (and certainly via retraining) to undertake assistance permanently in a self-service environment where customers are coming in utilising Centrelink computers to do their own research and need supervision.[60]
[56] T68, 335.
[57] T68, 334.
[58] T68, 336.
[59] T68, 337.
[60] T68, 336.
In a further report, dated 18 December 2017, Dr Ryan opined, contrary to the opinion expressed by Dr Paul, that Ms Keceski did not have a degenerative condition, and that employment was the sole contributing factor.[61] She had developed a chronic pain condition because of the chronic occupational overuse syndrome. Dr Ryan diagnosed “bilateral occupational overuse syndrome triggering chronic pain syndrome”.[62]
[61] T71, 345.
[62] T71, 349-350.
On 7 February 2018, Comcare accepted liability for ‘left lateral epicondylitis and left wrist tendonitis’.[63]
[63] T73, 356-357, 363.
As noted above, on 12 August 2020, Comcare issued a NPE certificate.[64] On 22 September 2020, Comcare affirmed the NPE decision on internal review.
[64] T83, 446.
On 12 October 2020, Ms Keceski submitted a further claim for Bilateral Chronic Pain, Bilateral RSI’ first noticed in January 2015.[65] On 25 February 2021, a claim officer determined that the Respondent was not liable for this condition,[66] a decision affirmed by Comcare on 7 April 2021.[67]
[65] PT4, 6, 7.
[66] PT6, 14; PT8, 26.
[67] PT14, 63.
THE HEARING
The review applications were heard together by the Tribunal over four days on 21-24 November 2022. Ms Keceski was represented by Mr B. Hilliard, instructed by Mr J. Tucker, Slater & Gordon Lawyers (Hobart). The Respondent was represented by Mr B. Kelly, instructed by Ms K. Miller, Sparke Helmore Lawyers. The hearing was conducted by videoconference. Counsel appeared from different locations, Mr Hilliard from Hobart, and Mr Kelly from Sydney. On the third sitting day Mr Kelly and his instructor appeared in person in the Tribunal.
OVERLAPPING CLAIMS
In relation to the NPE application, Mr Kelly contends that, as of 12 August 2020, the accepted conditions did not result in incapacity or impairment, and the Applicant was therefore not entitled to ongoing compensation under section 14.[68]
[68] Transcript, 24 November 2022, 69.
Regarding her later claim for chronic pain, Mr Kelly said:
The more difficult question, however, is the relationship, if any, between the universally acknowledged chronic pain syndrome suffered by Ms Keceski and her employment.[69]
[69] Transcript, 24 November 2022, 95.
This statement was not taken by the Tribunal as a concession by Mr Kelly that she did, in fact, suffer from chronic pain at any given time, merely that she had been diagnosed by several doctors as suffering from a chronic pain condition.
Two months after the NPE decision was made, Ms Keceski claimed for a chronic pain condition said to have been first noticed in January 2015. The claim for ‘Bilateral Chronic Pain, Bilateral RSI’ made on 12 October 2020 related to ‘Both hands, both thumbs, both wrists, outer and inner arms below elbow, both shoulders across back and up into neck on both sides’.
This fresh application posited a new and separate injury that was distinct from the pain symptoms associated with the accepted conditions.
In Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176 the Full Federal Court noted, at [11]:
It is indeed fundamental to compensation law that a symptom of an injury or disease is part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.
In these applications, the Tribunal is given the task of disentangling and disposing of two claims associated with chronic pain. In the first matter, pain appears as a symptom of the original injuries, for which compensation was paid until the NPE decision. In the second, pain itself may constitute the injury.
EVIDENCE
The Tribunal heard from Ms Keceski and from her former team leader Mr Mark Salmon, an administrative officer employed by the Department.
Dr Ryan and Dr Ridhalgh were called by the opposing parties. Dr Ryan is an occupational physician and Dr Ridhalgh an orthopaedic surgeon.
The Applicant also called Dr Tim Ho, a rehabilitation and pain specialist, while the Respondent called Dr David Gorman, a pain management physician, Associate Professor Dr Neil McGill, a consultant rheumatologist, and Dr David Vivian, a musculoskeletal physician with a special interest in interventional pain techniques.
Each of the medical experts was highly qualified and experienced in their fields and the Tribunal is grateful for their expertise.
The Applicant’s Statement of Facts, Issues and Contentions (ASFIC) sets out a useful chronology of medical reports spanning the period 2014 to 2021. The Respondent’s counsel, Mr Kelly, did not take issue with the summary, although he declined to endorse every medical opinion contained in the various reports.[70] I wish to add that I found the summary extremely helpful, although I have decided not to set it out in this decision due to its length.
[70] See RSFIC, 3.1.
The Tribunal was provided with an extensive medical record relating to both applications. The record is simply too voluminous to identify individual documents, which are referenced in the decision.
WITNESSES
(a)Ms Keceski
The Applicant’s statement of 16 June 2022 was tendered in evidence.[71] She gave evidence over three days. Her evidence was regrettably interrupted due to technical difficulties, and to allow for the interposing of other witnesses.
[71] ST91, 501.
She was examined extensively on her work history with the Department and her past medical record. Her central claim is that her workload was unmanageable and unfair. She simply did not have enough time to get the work done. She could not keep up. If she had time off, on her return she was required to complete her previous work allocation as well as work assigned on her day off. In one instance she was required to attend work in the middle of her leave of absence.
She considered that her team leader was unsympathetic to her restricted work conditions, and that he was giving her an unfair allocation of work. She felt that she was being set up to fail.
Mr Kelly drew attention to the medical assessment form completed and signed by her as part of the initial recruitment process. He asked her why she had failed to disclose aspects of her previous medical history. He referred to treatments she had received for anxiety and depression, dizziness and fainting, and pain in her Achille’s tendon, which she put down to ill-fitting shoes. She said that none of her symptoms were sufficiently “debilitating” to warrant disclosure on the form. Her depression was “reactive”. In her opinion, her medical history at the time did not limit her and therefore she was not required to disclose it. She experienced depression a long time ago during a relationship breakdown with her daughter’s father, for which she did not receive treatment.[72]
[72] See ST91, 501, para 4.
She was also cross examined on her relationship with her team leader and other colleagues. She was taken to numerous work emails showing a significant degree of personal conflict with her team leader. The emails showed considerable frustration on her part and, in some instances, a lack of restraint or cordiality.
She was asked whether she had ever said that she wanted to throw herself under a bus. She said she couldn’t imagine saying this in a formal meeting. She did not contemplate suicide at any stage. I note that Dr Hong, psychiatrist, reports that she said she felt suicidal at times although she had not attempted suicide, and that she also declined to discuss her family history of mental illness.[73]
[73] Report dated 17 June 2014: T14, 74-75.
Ms Keceski presented as an emotional and passionate witness. She was forceful in her views and was obviously very distressed by what she perceived to be unfair treatment by her team leader. She accepted no responsibility for providing a misleading picture of her past medical history in her medical assessment form. In her view, she was entirely blameless for her interactions with staff, customers and her team leader.
I am not satisfied that she was intending to mislead the Tribunal about these events. There is no ground for saying that she was deliberately untruthful.
(b)Mr Mark Salmon, supervisor
Mr Salmon provided a statement dated 21 October 2022. In his oral evidence, he said that he was Ms Keceski’s team leader from October 2012 to August 2013. He said that he tried to counsel her as to how to undertake her work tasks in a proficient manner, but this inevitably led to conflict. He says that she was preoccupied with challenging her work allocation. She did not respond well to any counselling or advice.
He said that the work was allocated fairly, either on a pro rata basis or periodically in some cases. He said that some of the work was allocated monthly, so it was misleading to say that if one was away from work for a day or two one would still have work allocated.
He did not accept the suggestion that the keyboard work was so intensive that an administrative worker could not keep up. All staff and team members received the same workload. It was fast paced at times but most of the staff managed quite well. There were discrete targets, and the work was fairly allocated.
He conceded under cross examination that the nature of the tasks required in Employer Services were slightly more keyboard focussed, and that this involves greater use of a mouse. He conceded that on occasions she might perceive that she had more work than her colleagues because of the way that work was distributed. This was only because other people had dealt with their allocations more efficiently. He emphasised that if the work was measured over monthly cycles, she did not have “more work”. The allocation method was “structured” rather than “rigid”.[74]
[74] Transcript, 24 November 2022, 65.
In respect of the Workcover certificate requiring her to receive a reduced allocation, he could not recall specifically whether the 10 minutes per hour restriction was enforced, but he said that Workcover certificates were always taken seriously.
Mr Salmon gave evidence in a forthright and open manner. In all, he was a satisfactory witness.
MEDICAL EXPERTS
(c)Dr Simone Ryan, Consultant Occupational Physician
Dr Ryan provided five medical reports,[75] her initial report in 2014, two reports in 2017 and two reports in 2021.The following summaries are taken from the ASFIC:[76]
[75] First report: 14 April 2014 (T13, 62); Second Report: 21 July 2017 (T68, 333); Third report: 18 December 2017 (T71, 345); Fourth Report: 15 July 2021; Fifth report: 10 September 2021.
[76] See ASFIC, paragraphs 3.1.3, 3.1.34, 3.1.35, 3.1.48 and 3.1.50.
3.1.3. On 14 April 2014, Dr Simone Ryan, Consultant Occupational Physician, provided a report at the request of the Department of Human Services (the DHS), based on an assessment of the Applicant on 13 March 2014. Dr Ryan considered that the Applicant was suffering from occupational overuse injury of the right upper limb and particularly the right common extensor muscles, partially treated. She considered that the Applicant had been inappropriately medically managed for a period of eight months to the point that the Applicant’s pain was so severe that she was entirely incapacitated from her activities of daily living (T13 of 2020/6213).
…
3.1.34. On 21 July 2017, Dr Ryan provided a report in which she opined that the Applicant was suffering from bilateral upper limb repetitive strain injury, otherwise known as occupational overuse syndrome. She recommended that the Applicant be provided with alternative employment within the restrictions and hours as set out by Dr Tague, as the Applicant would never return to her pre-injury duties (T68 of 2020/6213).
…
3.1.35. In a further report, dated 18 December 2017, Dr Ryan provided a diagnosis of “bilateral occupational overuse syndrome triggering chronic pain syndrome”. Dr Ryan did not consider that the Applicant had a degenerative nature to her condition, and stated that her employment was the sole contributing factor. She stated that the Applicant’s arm pain had progressed with the passage of time and she had gone on to develop a chronic pain condition on the basis of a chronic occupational overuse syndrome (T71 of 2020/6213).
…
3.1.48. On 15 July 2021, Dr Ryan provided a report in which she opined: “Ms Keceski has sustained and suffered from a work-related occupational overuse syndrome of the right upper limb which has gone on to develop a chronic pain syndrome. One should note that whilst consultant pain medicine is outside my area of expertise, a chronic pain scenario is multifactorial. Evidence would indicate that there must be a physical musculoskeletal or similar type of trigger in the first place (this has been well-proven in Ms Keceski’s case) however beyond that and with the passage of time, particularly time leading much further away from the date of the original injury, there is often a psychological and behavioural contribution to the chronic pain syndrome.” Dr Ryan considered that the Applicant’s change in work practices on or around October 2012 had been causative of her condition.
…
3.1.50. Dr Ryan provided a supplementary report dated 10 September 2021, in which she disagreed with Dr McGill’s opinion, based on her assessment of the Applicant at the very early stages after the reported work related injury and throughout a number of times. She stated that her original and subsequent opinions stood regarding the firm diagnosis of occupational overuse syndrome with a significant work relationship. She disagreed that there had been no injury. Dr Ryan noted that there had been a clear change in work tasks and work demand which had been causative of a work related injury.
In her second report dated 21 July 2017, Dr Ryan opined that Ms Keceski was suffering from bilateral upper limb repetitive strain injury, otherwise known as occupational overuse syndrome. She first set out the following medical conditions relating to Ms Keceski’s upper limbs:
1. Chronic right lateral epicondylitis. 2. Symptomatic right wrist extensor tendonitis, 3. Left lateral epicondylitis. 4. Left symptomatic wrist tendonitis.[77]
[77] T68, 333-334.
Dr Ryan further stated:
When I first assessed Ms Keceski it was my best impression after undertaking a thorough history and physical examination that she had gone on to develop symptomatology consistent with an occupational overuse syndrome. It should be noted that I use this terminology rarely and with caution. At the time that I initially assessed her, Ms Keceski was giving a good going history and symptomatology consistent with the same and particularly any slight increase in upper limb activity was triggering a disproportionate worsening of her symptoms (totally fitting with the condition itself). Since this point in time, in consultation with both Ms Keceski and on reviewing all of the reports attached, it is clear that her symptomatology has worsened and progressed. It now includes her right posterior shoulder region, her neck, her left posterior shoulder region and her left upper limb.
…
She presented with full and active range of motion of the cervical spine in all directions. Lateral flexion and rotation bilaterally triggered a tightness and pain-like sensation over the trapezius region in the alternative directions. She presented with full and active range of motion of the shoulder joints in all directions, full and active range of motion of elbow flexion and elbow extension bilaterally, full and active range of motion of wrist extension and wrist Hexion bilaterally. She had palpable exquisite tenderness throughout the musculature of both forearms, right worse than left. The area overlying her medial epicondylar region on the right was exquisitely painful and slightly swollen more so on the right versus the left. She otherwise presented in a full fit and functional state.
The story for Ms Keceski is not in the physical examination but, in fact, in the history itself and I note I was one of the first physicians to see her - now three and a half years ago. It is clear that she has deteriorated since this time.[78]
[78] T68, 334-335.
Dr Ryan recommended that her keyboard work be limited to 15-20 minutes of keying an hour or that she be placed in a non-keyboard environment. She considered that she would never return to her pre-injury duties.[79]
[79] T68, 336. See also ASFIC, 3.1.34.
In her third report dated 18 December 2017, she was asked to respond to the following:
3. Noting Ms Keceski’s has not attended work with the Department of Human Services since June 2016, and accounting for the degenerative nature of her condition, does her employment continue contributed to a significant degree of her current diagnoses? If yes, please explain the claimed mechanism (repetitive keyboard and mouse work) and how this continues to cause or aggravate her current condition.[80]
[80] T71, 350.
In response, Dr Ryan stated:
Ms Keceski does not have a degenerative nature of her condition. Her employment is the sole contributing factor. It caused her arms to be painful in the first place; this has been well recognised. The arm pain has progressed with the passage of time and she has gone on to develop a chronic pain condition on the basis of a chronic occupational overuse syndrome. Occupational overuse syndrome in and of itself as an umbrella term for a range of conditions causing discomfort or persistent pain in muscles, joints, tendons, nerves and soft tissues. These conditions develop as a result of a number of factors such as repetitive movement, constant muscle contraction or straining, forceful movements and constricted postures. It can present with localised inflammation, chronic in nature, compression-like syndrome and pain.[81]
[81] T71, 350.

The view expressed by Dr Ryan was contrary to the opinion expressed by Dr Paul.[82] In her view, Ms Keceski had developed a chronic pain condition because of the chronic occupational overuse syndrome. She diagnosed “bilateral occupational overuse syndrome triggering chronic pain syndrome”.[83]
[82] T71, 345.
[83] T71, 349.
Dr Ryan accepted that the concept of a ‘repetitive strain injury’ was no longer widely accepted or regularly used. However, she defended the concept of ‘occupational overuse injury’. This was an umbrella term for a range of conditions causing discomfort or persistent pain in muscles, joints, tendons, nerves, and soft tissues.
These conditions develop as a result of a number of factors such as repetitive movement, constant muscle contraction or straining, forceful movements and constricted postures. It can present with localised inflammation, chronic in nature, compression-like syndrome and pain.[84]
[84] T71, 350.
This was a label that she rarely used, and only when a clear connection with work activity could be established. She considered it appropriate in the present case. That was because, based on the account provided by Ms Keceski, there was a clear correlation between work activity and her experience of pain. Her experience of pain was preceded by an increase in work activity relating to the use of the mouse and keyboard.
Dr Ryan opined that when she injured her right arm, she compensated by using her left arm, which led to further problems with her left arm. This was not uncommon.
She did not accept that the original injuries had resolved. In her opinion, her current presentation was a progression of the original scenario she first witnessed in 2014. Her presentation was caused by the failure to properly treat the original injuries. The recommendations made in her original report were not followed. The provision of alternative duties and reduced hours were not provided. Her duties were altered which resulted in more intensive keyboard work
She emphasised that her current diagnosis was that of a “chronic pain syndrome”. By the time she saw her the second time in 2017, she had a well-established chronic pain syndrome of the upper limb. On reflection, she did not think it accurate to say that this had “superseded” the original injuries. She preferred the word “sequalae”. The common pain syndrome would never have been caused without a physical trigger. A person experiencing chronic pain without a physical cause has a psychiatric condition.
She did not think that her upper limb issues were degenerative. She said:
I was very confident given I had assessed [Ms Keceski] soon after she started to present with symptoms having had a significant change in her work demand, that the change in work demand had been causative to her symptoms, that it wasn’t a degenerative condition at all. In fact it was a work-related scenario and it had, actually, in my view, been superseded by this chronic pain scenario of both arms starting with the elbows and wrists and all that…[85]
[85] Transcript, 21 November 2022, 42.
In her fourth report of July 2017 Dr Ryan stated:
I should note that occupational overuse injury is a diagnosis I very rarely provide. In almost 6,000 independent medical examinations, I probably have provided this as a formal diagnosis on no more than ten occasions.
Occupational overuse injury is well-recognised as a superseding term of what used to be called “repetitive strain injury”. The reason I prefer not to use these terms routinely is because within my extensive area of medical expertise there often is a more specific diagnosis that can be afforded to a patient which then maps across to a much more specific treatment focus.
In the case of Ms Keceski, I was convinced that she had occupational overuse injury, mostly due to her clear changes in work practices that had preceded the onset of her symptomatology, on the background of having done seven years of work for the department without any symptomatology triggers at all. I will detail these below. [86] (Emphasis added)
[86] Report dated 15 July 2021, p 4.
In this report, Dr Ryan also stated:
Ms Keceski has seen a number of other treating and independent specialists. I have read the entire 253 pages of the bundle of referred documents. Varying opinions have been provided but ultimately there is an overarching theme that Ms Keceski was injured at work. What appears to be at odds is the terminology that people tend to use with respect to her symptomatology / condition(s). I have remained confident in my opinion regarding her occupational overuse syndrome for the reasons stated above.[87]
[87] Ibid, p 6.
She also stated:
Ms Keceski is a 56-year-old lady who in the course of her work in my opinion had a very significant change in her work demand and tasks which between October 2012 (when her work type changed) and June 2013 went on to develop a very significant occupational overuse syndrome of the right upper limb.
I stand by my original report and I would urge any reader to understand my great reluctance in providing this as a firm diagnosis however I have no hesitation in doing this for Ms Keceski.
Outside of this, she has gone on to develop elements of a chronic pain syndrome. I note that other independent medical examiners have also agreed with this and suggested that the next step of treatment for her (as recent as late 2020) should be referral to a multidisciplinary pain management service with psychological support.[88]
[88] Ibid, p 8.
In her oral evidence, Dr Ryan agreed that her findings on examination were consistent with lateral epicondylitis and common extensor tendinopathy. She conducted provocation testing on Ms Keceski. This involved gentle application of pressure or resistance on the forearms and hands, in various directions. Patient response to discomfort or pain could then be used to diagnose specific conditions.[89] It was standard testing.
[89] Transcript, 21 November 2022, 40.
She was asked to explain why she preferred the diagnosis of occupational overuse syndrome rather than the more specific diagnoses of lateral epicondylitis and common extensor tendinopathy. She said:
I’ve assessed over 6,500 people independently and I will have used the terminology “Occupation Overuse Syndrome” no more than five times. It’s just a term that I don’t like. I don’t use it generally but when there is such a very clear-cut relationship between work as starting to cause symptoms and particularly in her case there was this very substantial change in her work demands before the symptoms started. It was pretty clear to me that it was a cause and effect scenario and because there was a lack of effective treatment in those early years she developed this sort of chronic pain syndrome and then the more she tried to work and the more she tried to type the pain would flare and if she had time away from work or had alternate duties or was cutting back on her work the symptoms would abate a little, so it was pretty clear to me that it was related to occupation, which is this sort of chronic inflammatory scenario of muscles and tendons rather than specific musculo-skeletal injuries.[90] (Emphasis added)
[90] Transcript, 21 November 2022, 42.
She said that occupational overuse syndrome referred to what used to be called RSI. It was a cluster of symptoms that often could not be explained by anything else.
Yes, the jury’s out …around using this as a syndrome. So a syndrome is a cluster of symptoms that often can’t be explained by anything else and if we cast our minds back it used to be called Repetitive Strain Injury, so it was the straining of tendons and the straining of muscles due to repetitive work and then the occupational people of the world thought that that was very prescriptive and claims were going up by the bucket load because people were saying, “Well I do repetitive work and my arms are sore and I have RSI.” So, yes, it is commonly misused. There’s a clear-cut diagnosis as to why you would use it these days and I was comfortable that in the case of [the Applicant] it was appropriate…[91]
[91] Transcript, 21 November 2022, 43.
She acknowledged that the term RSI was commonly misused. In the instant case, there was a clear connection with a change of work demand that justified invoking occupational overuse syndrome.
She was asked about her report of 15 July 2021, where she had reviewed other reports critical of her diagnosis. Mr Kelly suggested that this was focussed squarely on the change that was described to her by Ms Keceski regarding the nature of the duties that she was doing prior to the onset of the symptoms. Dr Ryan conceded that her diagnosis was based on what she had been told by Ms Keceski about the changes to her working conditions. She conceded that if what she had been told was factually incorrect, her diagnosis of occupational overuse syndrome could be incorrect. She could not think of a reason why Ms Keceski would “make that up” and emphasised that her role was as an independent consultant enlisted by the employer.
She said that whether it was true or not, she had understood Ms Keceski to say that the workplace changes involved her spending most of her days typing at considerable pace. She had told her that she couldn’t do it fast enough. Her keying had increased in intensity and frequency and nine months later she started to feel pain. She said that this established the relationship with work.
She was asked whether any change at all to work duties could have been sufficient to induce her symptoms. She said it would depend on the ergonomics involved. She did not have a history of ergonomic optimisation but noted that minor changes could have major effects. She said:
So occupational overuse syndrome can actually, in my opinion, be a diagnosis given when there are small, repetitive, sometimes awkward posture changes, or the way you hold your hand or the way you’ve got a new mouse or something like that. They don’t necessarily have to have radiologically proven extensor muscle tendinopathy, or in the case of [the Applicant] who has, I think from memory, been from radiology findings which others have called degenerative. So my relationship in giving her this diagnosis of occupational overuse syndrome was because when you took away the elements of her work which she proposed had caused her medical scenario and reduced her hours and provided her with some alternate duties. Things started to settle. When you put her back into the scenario that she says caused all of this in the first place and I think she is probably right. Things flared with a vengeance, and it can be given as a diagnosis. It’s a brave person that would give it as a diagnosis these days as a primary diagnosis, but it can be given as a primary diagnosis.[92]
[92] Transcript, 21 November 2022, 45.
In her fifth and final report dated 10 September 2021, Dr Ryan was asked to comment on the views of Dr McGill. She stated:
Dr McGill has an entirely different viewpoint regarding Ms Keceski’s work related injury. He suggests that she may well have presented with a lateral epicondylitis but he could not give any epicondylitis-causation with respect to her changes in work.
Given I have assessed Ms Keceski both in the very early stages after the reported work related injury and throughout (a number of times), I disagree with Dr McGill’s opinion. My original and subsequent opinions ongoing stand regarding the firm diagnosis of occupational overuse syndrome with a significant work relationship in the first instance. Unfortunately, in my opinion, Dr McGill’s focus on epicondylitis has missed the chronological sequence of events leading to this diagnosis (and not a diagnosis of epicondylitis).[93]
[93] Report dated 10 September 2021, p 3.
In oral evidence, Dr Ryan said that Dr McGill had “a different perspective”. She said:
… and I think I said “he suggests she may well have presented with a lateral epicondylitis”, but he couldn’t give - this is the crux of the whole story I think when I read all of these reports. He couldn’t give an epicondylitis causation, meaning that the evidence would indicate that people that do sedentary type of work generally don’t present with a lateral epicondylitis and people that do, very commonly do have underlying degenerative disease and he couldn’t find a match between a specific musculo-skeletal condition of tennis elbow and her work. However at that point I went way back to that first review I did with her when her work demand considerably changed, and I was comfortable that there was a cause and effect there.[94]
[94] Transcript, 21 November 2022, 43.
Dr Ryan could not comment on an alleged comment made by Ms Keceski to a treating psychologist on 1 November 2016 that her ideal return to work scenario would be retrenchment.
(d)Dr Tim Ho, Rehabilitation and Pain Specialist
Dr Ho provided a report dated 21 October 2021 and supplementary report dated 15 August 2022. In the first report dated 21 October 2021, he stated his diagnoses as follows:
1. Chronic nociplastic bilateral upper limb pain secondary to central sensitisation, soft tissue injury as above.
2. Cortical augmentation with adjustment disorder, catastrophisation and reduced self-efficacy.
Dr Ho opined that the index injury was the likely trigger for the chronic pain syndrome, maintained by central sensitisation and contributed to by an adjustment disorder, catastrophisation and reduced self-efficacy. He agreed that pain could be augmented by psychosocial factors.
So, chronic pain is a (indistinct) psychosocial condition and the biological component of that is usually a nerve memory that’s triggered by the initial injury. So, the nociplastic component is more a technical term for the central sensitisation. So, sometimes after acute injury the pain persists because the pain and system has formed a memory of it so despite the resolution of initial injury patients still have continuing pain. But obviously there’s also the other psychosocial component that I mentioned in item 2 that can be contributing to it.[95]
[95] Transcript, 22 November 2022, 26.
Dr Ho agreed that the augmentation of a triggered pain response could be due to the psychological make-up of the patient. It was the combination which perpetuates the chronic pain disorder.
In a supplementary report dated 15 August 2022, he confirmed that he had read Ms Keceski’s statement of 16 June 2022 as well as the reports by Dr Vivian of 9 December 2021 and Dr Gorman of 14 December 2021. His previous diagnosis was unaltered. His conclusions were as follows:
2. The central sensitisation also encompasses the component of “somatic symptoms disorder”. (Central sensitisation includes the increase/alteration in the transduction, transmission, central processing and reporting of pain.) I note that it is difficult to isolate specific physiological process objectively.
3. I agree the initial soft tissue injury has resolved. I agree that medical treatment may perpetuate and validate her condition. I agree that there is a psychosocial component of the chronic pain as outlined by my diagnosis as above. Chronic pain is a chronic complex biopsychosocial syndrome with multifaceted contributors.
4. Dr. Gorman and Dr. Vivian’s reports do not alter my opinions from my previous report. I agree with their diagnoses and I have also outlined the other contributing components as above. (Emphasis added)
Dr Ho opined that the original soft issue injury had resolved. He also agreed that there was a psychological component to her pain. He agreed that it was difficult, if not impossible, to isolate specific physiological processes objectively because there could be no reliable biomarkers.
He diagnosed central sensitisation as the mechanism to reconcile her continued reporting of pain despite the resolution of the original injury. He agreed that the diagnosis of somatic symptom disorder made by Dr Gorman and Dr Vivian was an alternative hypothesis and was distinct from the concept of central sensitisation.
Dr Ho was asked about the significance of allodynia, meaning hypersensitivity to non-painful stimuli. He said that allodynia could be present even if the original injury was symptomatic, but it could also be a sign of central sensitisation in cases where the original injury has resolved.
So, basically the pain in the system usually gets winded up and that can manifest in subjective reporting of pain, and from the clinician point of view we find allodynia which is the main pain (indistinct) becomes a pain – becomes painful for the patient.
…
So, the key thing is that central sensitisation can occur during the (indistinct) and once the (indistinct) was – initial injury has resolved if patients you have ongoing pain reporting, pain-related disability and allodynia on examination we usually say that there is a component of central sensitisation.[96]
(e)Dr Mark Ridhalgh, Consultant Orthopaedic Surgeon
[96] Transcript, 22 November 2022, 29.
Dr Ridhalgh carried out an assessment on 19 December 2019 and his report is dated 30 December 2019.[97] He recorded the following results from his physical examination:
She had a full range of movement in both shoulders. Negative impingement sign. She localised pain to the posterior aspect of the shoulder over the trapezius. There was no noticeable swelling of the forearms or thenar eminences
She was minimally tender over both epicondyles. She had pain with forced palmar flexion of the wrist. She had normal grip strength in the fingers. She had complete roll up of the fingers. She had a full range of movement of the shoulders, elbows, wrists and hands.
INVESTIGATIONS:
Ms Keceski did not bring any investigations for review although I note in the past in December 2014 there were small sheath effusions related to the right extensor carpi radialis and left extensor digitorum tendon sheaths and mild sheath synovitis.[98]
[97] T78, 395.
[98] T78, 394.
Dr Ridhalgh stated that he could not find evidence of any significant pathology in her neck or upper limbs. He said that his physical findings and clinical investigations did not match the severity of her symptoms. He diagnosed a chronic pain disorder as a “diagnosis of exclusion” because he could not find any orthopaedic pathology in her upper limbs or cervical spine. His conclusion was that:
Her employment was the cause when the symptoms started with her disease but she has had extension of the disease without significant employment factors. Ms Keceski’s employment has not contributed to a significant degree to her current presentation.[99]
[99] T78, 396.
In oral evidence, Dr Ridhalgh stated that as a consultant orthopaedic surgeon, his area of expertise was musculoskeletal pathology. As to whether he should be recognised as an expert in relation to the causation of chronic pain, he said that this was a grey area, and there was overlap. He was not an expert in the management or treatment of chronic pain but saw patients with chronic pain. He did not manage their day-to-day treatment. He conceded that he was not qualified to comment on psycho-social aspects which were outside his area of expertise.
He said that upon examination he could detect only weak or minor signs of lateral epicondylitis and wrist tendonitis. He noted that he saw her at the end of 2019, and she had not worked since the middle of 2016. He was satisfied that her employment no longer contributed to her pain condition to a significant degree.
He did, however, accept that it was “probably right” that but for the original injury, she would not have developed any chronic pain condition.
After examining her he could not make a diagnosis other than to acknowledge that she had been diagnosed as having a chronic pain disorder. This was a label used when a doctor could not find anything else or any pathology. He said that in such cases, “this is what people get diagnosed with”. He expanded on what he meant by a “diagnosis of exclusion”. Mr Keceski’s medical history and physical examination did not fit with anything he could identify as causative. There was no significant pathology. Imaging studies showed only mild disease.

He was asked about a diagnosis by a sports and exercise physician, Dr Mark Jones, who referred to “neural tightness”. Dr Ridhalgh said he didn’t know what that meant. It was a combination of words just to put a name on something. He considered it to be a “bizarre diagnosis”.
He had read the medical reports prepared by Dr Ryan and Dr Ho. They had not caused him to alter this opinion.
He questioned whether she was motivated to get better. He noted that every treatment she had was failed. “Nothing worked”.
He was asked whether he assumed that it was her choice not to return to work. He could not remember precisely but said that he was probably aware that the employer would not accommodate a return to work. He accepted that she made some progress with physical therapy after she stopped working.
(f)Dr Neil McGill, Consultant Rheumatologist
Dr McGill is a Fellow of the Royal Australasian College of Physicians. He is a Clinical Associate Professor at the University of Sydney. He examined Ms Keceski on 3 March 2021 and completed his report on 29 March 2021 after conducting a literature review. He made the following findings:[100]
[100] Report of Dr McGill, p 8.
This 54 year old lady had performed similar (although not exactly the same) duties for the Child Support Agency then Services Australia from 2007. She was moved to a different section in October 2012. Her recollection today was that her father came to live with her in 2012 following a stroke and later recognition of Parkinson’s disease. Her marriage ended the day before or on Valentine’s Day 2013. The documentation indicated that she had interpersonal difficulties at work and she explained today that some, particularly one, of her supervisors she thought were not supportive. In April 2013 she developed pains in the right wrist which subsequently radiated up the forearm. She subsequently experienced similar symptoms on the left. Her pain symptoms have also involved the upper trapezius muscles and neck. Initial ultrasound studies of the right elbow and wrist on 26 February 2014, were reported to be normal with no evidence of tendonitis or epicondylitis. Subsequent ultrasound studies of both wrists on 6 December 2014, were reported to show possible mild sheath synovitis. On 15 December 2014, ultrasound of both elbows was reported to show common extensor tendinopathy with areas of partial tearing on each side, and small right triceps tendon partial tear.
It was thought by Dr Mark Jones on 4 March 2015, that the clinical findings were not those of lateral epicondylitis. She continued to experience and report symptoms. She today reported that since stopping work in 2016, her symptoms have deteriorated and that her tolerance of activity has deteriorated.
Her examination revealed an elevated BMI (38.9 = severe obesity category), no objective abnormality in the upper limbs, mild reduction of right shoulder abduction and internal rotation, and a report of tenderness on palpation of the lateral epicondyles, dorsal proximal forearms, and arms over the mid biceps bilaterally. Provocative tests for epicondylitis (resisted wrist and finger movements) did not cause elbow pain. In the lower limbs there was osteoarthritis in both great toe MTP joints and at the right knee.
With respect to the schedule of questions:
I do not think she sustained a physical injury as a result of her employment duties with Services Australia in 2013. It is possible that lateral epicondylitis contributed to her symptoms at that time. It should be appreciated that tenderness is not a reliable diagnostic tool in isolation for the diagnosis of epicondylitis. To make that diagnosis on clinical grounds, provocative manoeuvres should reproduce pain in the appropriate location and manoeuvres that do not cause pain in lateral epicondylitis, should not cause pain.
Although I do not think that lateral epicondylitis was a major contributor, as the condition may have been present, it is worth assessing whether there is a relationship between lateral epicondylitis and clerical keying activities. The current UpToDate review of elbow tendinopathy (copy attached) concludes that “smoking, obesity, age 45 to 54, repetitive movement for at least 2 hours daily, and forceful activity (managing physical loads over 20kg) appear to be risk factors”. The studies referenced for that statement are also attached. The study by Shiri et al found an association between lateral epicondylitis and combined repetitive and forceful activities. Their conclusion was that physical load factors, smoking and obesity were strong determinants of epicondylitis. With respect to keying, as recorded in the first paragraph on page 1072 “a keying job was associated with lower risk of lateral and medial epicondylitis”. Thus this study found no suggestion that lateral epicondylitis was positively associated with keying work.
The study by Fan et al assessed various work tasks using a strain index and found that high strain exposure, older age and self-perceived poor general health were associated with lateral epicondylitis.
The published literature does not support an association between keying activities and lateral epicondylitis.
I think the non-specific label “chronic pain syndrome” is appropriate in her case. Although I can assess whether symptoms are interfering with observed functional capacity, I cannot determine the severity of pain and thus I have accepted the pain symptoms she has reported. There was no clinical evidence of impaired upper limb function. I agree with Dr Geoff McDonald (14 September 2016) that there is a close association between psychological problems and the perception of pain. I do not think her pain was significantly influenced by the physical demands of her employment. Noting that she reported that her symptoms have deteriorated in the more than four years since she ceased employment, it is not plausible to suggest that the physical demands of her work were an explanation for her symptoms.
There is no objective evidence of any current physical incapacity. Her observed function was normal. The objective clinical findings were normal. She reported pain and tenderness.
Had her symptoms been due to lateral epicondylitis, one would have expected the symptoms to have long ago resolved.
You specifically asked whether effects of “injuries ceased to result in incapacity and the need for medical treatment by 12 August 2020”. There was no work related injury and had the physical effects of her work had any influence on her symptoms, any such influence had ceased years prior to August 2020.
As she does not suffer any effect of an injury to the upper limb in 2013 as a result of her employment with Services Australia, some of the subsequent questions are not relevant.
Although obesity predisposes to tendinopathy, as explained above I do not think that tendinopathy was a major contributing factor. There was no pre-existing physical condition relevant to the symptoms she reported in 2013 and subsequently.
I think her physical capacity would have been the same as is the case currently, regardless of her work.
You have asked whether there was evidence on non-organic factors. Her symptoms are not explicable on the basis of physical disease. The influence of psychological factors is more appropriately discussed by those with expertise in that area.
The demands on her time and energy currently are large, primarily in relation to her care of her disabled father. There would appear to be no realistic chance of her returning to any employment while those demands are ongoing.[101]
[101] Report of Dr McGill, pp 8-9.
In his oral evidence, he was asked to explain the basis for his opinion that he did not think Ms Keceski had suffered a physical injury in 2013 in the course of her employment with Services Australia. He said:
Yes, I thought the description of her symptoms at the beginning and going through was not suggestive of a physical injury. I then, in some detail, discussed lateral epicondylitis, common extensor, or tendinopathy, because that was demonstrated on her imaging studies, but I did not think her pattern of symptoms was consistent with that diagnosis or in fact with any physical injury diagnosis.[102]
[102] Transcript, 24 November 2022, 4.
He was also asked to comment on Dr Ryan’s report dated 10 September 2021, which was somewhat critical of his findings.
Mr Kelly: What do you say to Dr Ryan’s opinion that your focus on epicondylitis has made you overlook what she has described as the sequence of events pointing to a diagnosis of occupational overuse syndrome?
Dr McGill: Well, I think those comments are not in keeping with my report…At the bottom of page 8 of my report in the last paragraph, I stated:
Although I do not think that lateral epicondylitis was a major contributor, as the condition may have been present, it is worth assessing whether there is a relationship between lateral epicondylitis and clerical keying activities.
I don’t understand a comment that suggests that I had become focused on lateral epicondylitis as the explanation of her symptoms. I thought it was not likely to have played a substantial role, though it may have been present.
Mr Kelly: Doctor, what about a diagnosis of occupational overuse syndrome? Do you have any comment to make about that kind of diagnosis?
Dr McGill: Well, it is a label that can be applied in many different circumstances. If over-action was the cause of symptoms, then stopping that over-action would be expected to result in a progressive improvement in the symptoms and their resolution. Mr Keceski reported to me the reverse; that since stopping work in 2016, her symptoms overall had deteriorated and that her tolerance of activity had deteriorated. In the absence of a physical disorder to account for her symptoms, and a history that the symptoms had deteriorated since stopping work, I am left with the conclusion that the work activities were not a key role in her symptoms. I think her symptoms were a reflection of a very difficult situation in life for her with pain related to non-physical aspects. It doesn’t make a pain less real; it just means that it is not caused by physical problems.[103]
[103] Transcript, 24 November 2022, 6-7.
Mr Hilliard cross examined Dr McGill as follows:
Mr Hilliard: Your report concentrates on whether or not there was a diagnosis of lateral epicondylitis possible, but we have now agreed that it was probable that she had lateral epicondylitis in 2014 when Dr Ryan examined her. That’s correct, isn’t it?
Dr McGill: We know that she had - just going through it - the early ultrasound had no evidence. Dr Ryan’s excerpt that you have provided me was consistent with lateral epicondylitis. As I have already mentioned, in order for that to be an explanation, there should be a lack of symptoms elsewhere, but I think it is moderately likely that she had genuine lateral epicondylitis. I think it has not been a major contributor to her overall symptom complex.[104]
[104] Transcript, 24 November 2022, 16.
…
Mr Hilliard: You are aware, aren’t you, that the use of the mouse on a repetitive basis is a major cause of upper limb pain problems and complaints in office workers? You are aware of that, aren’t you?
Dr McGill: The studies that look at office work and ill-defined upper limb pain syndromes, such as the RSI model that became epidemic 20 years ago now, there were a whole lot of things written at that time in terms of physical activities, but the RSI epidemic went away; not because of a change in the nature of work or the work set up; it went away for other reasons. It is the marked reduction in prevalence - the huge reduction in prevalence of that pattern of upper limb pain or ill-defined upper limb pain said to be associated with clerical-type activities. It did not prove to be explicable on the basis of a physical disease in the upper limbs.[105]
[105] Transcript, 24 November 2022, 18.
…
Mr Hilliard: And you’ve seen the report from a Dr McDonald, a psychiatrist?---Yes, the one in 14 September 2016.
And he talked about the inter-relationship between psychological stress and perceptions of pain?---Yes.
And do you understand that there is sort of a two-way relationship between stress and pain? ---Yes.
Mr Hilliard: That pain can cause stress, stress can cause pain or make the perception of pain higher?…
Dr McGill: [I]t has a potential circular, you know, relationship. And it’s - in terms of trying to work out whether it’s predominantly a physical disease driving that circular relationship or primarily a psychological disorder, then my role is to look very carefully for a physical disorder, a physical explanation. And that was not present.
Mr Hilliard: At the time that you interviewed - that you reviewed her in 2021 (indistinct)?
Dr McGill: Well, yes, when I take the whole history including the possibility or probability that she had at one stage lateral epicondylitis, I reached the conclusion that her overall symptom experience was not explicable on the basis of a physical disorder, notwithstanding the fact that she probably had lateral epicondylitis.
Mr Hilliard: Yes. And she had other symptoms. Tendonitis, other issues were at different times diagnosed by doctors who saw her at the time, weren’t they?
Dr McGill: Yes. The symptoms doesn’t equal pathology. But you’ve asked me my opinion, my opinion is that the physical disease does not explain the pattern of her symptoms, and that when I saw her she did not have a physical explanation for her symptoms.[106]
(g)Dr David John Gorman
[106] Transcript, 24 November 2022, 25.
Dr Gorman is described as a Consultant General Physician, Pain Management Physician and Medical Oncologist. He is a Fellow of the Faculty of Pain Medicine of the ANZ College of Anaesthetists, and a Fellow of the Australasian Chapter of Palliative Medicine.
Dr Gorman examined Ms Keceski on 22 November 2021.[107] He provided a Report dated 14 December 2021,[108] and a Supplementary Report dated 16 September 2022.
[107] ST85, 425.
[108] ST85, 425.
In his examination he observed that she used her arms perfectly normally, with her bag over her forearm. Her cervical spine range of motion was normal in all planes. There was no tenderness. Her shoulder range of motion was normal in all planes. Her elbow range of motion was normal and there was no tenderness over the medial or lateral epicondyle. Her wrist had a normal range of motion and there was no tenderness. Her fingers and thumbs had a normal range of motion. There was no swelling or colour change in the upper limbs. Her lumbar spine was flexible. She could touch the ground. Extension was normal, as was lateral flexion to the right and left. Her history and normal examination did not show any ongoing inflammation to explain her claimed symptoms.
Dr Gorman reported that:
Ms Vera Keceski has bilateral upper limb pain which is widespread and not associated with clinical signs of any significant pathology.
This assessment is the same as that made by Dr Farhan Shahzard as well as Dr Ridhalgh.
While diagnoses such as chronic right lateral epicondylitis, symptomatic right wrist extensor tendonitis, left lateral epicondylitis and left symptomatic left wrist tendonitis have been made, she no longer has these specific diagnoses.
I believe that she is best described as having a “Somatic symptom disorder”.
Her pain is not consistent with the usual repetitive strain injuries in the upper limbs - even putting her hand on a computer mouse will cause pain she reports.
She has the features typical of chronic pain syndrome with gross catastrophizing - she speaks of having her hands amputated. She describes dramatic symptoms such as having pain for days after even holding a light Dyson vacuum cleaner up for a short period to suck up some insects.
I do not believe that her current symptoms can be related to her work as a Service Officer APS4 in child support.[109]
[109] ST85, 429.
In his Second Report dated 16 September 2022, Dr Gorman noted that Dr McGill was unable to find any physical abnormalities in the upper limb except for patches of variable sensation. He was asked whether Ms Keceski sustained a pain condition because of injury suffered in 2013 because of her employment with Services Australia. He noted that her pain condition had been variously described as a “Chronic pain syndrome” or “Somatic symptom disorder with predominant pain”. He stated that he did not believe that her pain condition was caused by her employment with Services Australia.
He was asked whether Ms Keceski would have developed her current pain condition as a natural progression of a pre-existing condition irrespective of her employment with Services Australia and irrespective of any injury or injuries sustained in 2013. His reply was as follows:
This is a difficult question. There is no doubt that she had a propensity to “somatise” and have her psychological distress reflected in complaints of pain.
There is no doubt that the repetitive typing actions in one sense meant that her pain condition was focused in her upper limbs. One cannot say that it is irrespective of her employment with Services Australia – her employment with Services Australia involving typing meant that her “somatisation” was focused in the upper limbs, and that continues.
However, any repetitive movement in any job that she was part of at that time is likely to have caused the upper limb pain and, therefore, one might say that it is irrespective of her employment with Services Australia. Wherever she was, if she had a job involving any repetitive activity with the upper limbs in 2012/13 when she was undergoing a great deal of stress, she would have developed pain. The paper on “Non-specific arm pain” which I have attached outlines, in the third paragraph, a statement which is very relevant to Ms Keceski –
“One useful example is an illness construction invented in Australia in the 1980’s: “repetitive strain injury”. A well-intentioned effort to protect computer workers inadvertently encouraged and reinforced catastrophic thinking and kinesiophobia in response to physiological pains and created an epidemic. The mere idea that pain with typing might represent an injury was enough to disable a large proportion of the population. Authorities in the medical community now understand that this epidemic as, in part, a sociopolitical phenomenon because it was exacerbated by claims for compensation and greatly eased by a high court ruling that there was no evidence of injury and therefore was not compensable”.
In summary, while one cannot say that this pain was a “natural progression of a pre-existing condition”, the fact that it occurred with repetitive activity at Services Australia does not necessarily mean that Services Australia was the cause of her current condition which is remaining long after the physical stresses on the upper limbs.[110]
[110] Report dated 16 September 2022, p 6.
Dr Gorman summarised his reasons for favouring a diagnosis of somatic symptom disorder as follows:
There have not been any consistent signs of any physical abnormality in the upper limbs from her work with Services Australia.
There was a history of “somatisation” prior to 2013 with widespread symptoms particularly for example in 1995.
There was evidence of increased psychological stress leading up to 2013 when she presented with her widespread symptoms. The psychological stress was not predominately related to her work with Services Australia.
The pain condition has not improved with cessation of work confirming again the lack of any link between the physical aspects of her work with Services Australia and her ongoing symptoms.
In summary, she had a propensity to somatise psychological distress and her psychological distress was elevated in 2012/13 leading to pain symptoms, which have persisted, despite her stopping work and no longer having the physical or psychological demands of work.[111]
[111] Report dated 16 September 2022, p 4.
As noted above, Dr Gorman examined Ms Keceski on 22 November 2021. Her history and normal examination did not show any ongoing inflammation to explain the symptoms of which she was complaining. He considered that it was more than just a magnification of symptoms of past inflammation of limbs. It was more likely to be a somatic symptom disorder, in other words, she was “somatising” her emotional distress.

Dr Wilcox identified several issues which she described as consistent with the history provided by Ms Keceski.
Ms Kesecki does not deal well with criticism and due to her obsessive nature she finds fault in either the process of criticism or the person who has criticised her. She lacks an awareness of when she is being aggressive in interpersonal situations.
It is possible that due to her personality she may have been targeted in the workplace by a few colleagues who have taken a dislike to her, possibly because of her manner of escalating her concerns outside her team and being openly critical of her team leader and indicating a desire to leave the team.
A fear of losing her job may have also contributed to her doggedly pursuing every complaint in order to clear her name. She said she would have killed herself if the most recent complaint had been upheld.
During the latter half of 2010 she may have experienced a degree of depression that resulted in increased irritability and temper and perceiving her colleagues in a more negative mistrusting manner.[124]
[124] T4, 17.
Dr Wilcox reported that Ms Keceski had a history of depression. However, it was untreated, and she had not received any counselling until seeing the EAP counsellor, with whom she had nine sessions.
At the time of her interview with Dr Wilcox, Ms Keceski was sleeping poorly because of these conflicts. She had gained weight and lost self-esteem. She was reluctant to return to work especially if required to work with her manager. Dr Wilcox reported her saying that if she had been found guilty of the most recent potential Breach of Conduct, she would have killed herself because she would have been unable to support herself.
Dr Wilcox provided a diagnosis of adjustment disorder in early remission. She stated:
Ms Kreceskis presented with symptoms indicative of a reactive depression or adjustment disorder. She is overly preoccupied with work related issues and dwells in an obsessive manner on things she has said and written. She has indicated a desire for resolution of the work related issues however for her resolution means being totally cleared of any wrongdoing. Her dogged manner of dealing with the complaints and her inability to accept she may have ever behaved inappropriately reflects her personality style. It is also probable that due to her personality style she is effective in the work place as she is likely to keep pursuing matters with the clients she manages.[125]
(j)Dr Michael Hong, psychiatrist
[125] T4, 17-18.
Dr Hong provided a Report dated 26 June 2014.[126] His report sets out at length her account of the history of conflict in her workplace.
[126] T14, 71-82.
Dr Hong considered that Ms Keceski suffered from an adjustment disorder in early remission. This was apparently exacerbated by conflict with her team leader Mr Mark Salmon. He found that she was psychiatrically fit for her usual duties, recommending that she commence four hours a day five days a week, upgrading to full time work over a six-week period. He recommended that she should not work with her team leader unless mediation is attempted first.
His prognosis was good, and he did not think she would have any long-term psychiatric problems. Her main barriers to returning to work were industrial and related to her problems with her current manager.[127]
[127] T14, 79.
His report assumes that she had no previous psychiatric history. She declined to discuss her family history of mental illness.[128]
(k)Dr Frank Chow, psychiatrist
[128] T14, 75.
Dr Chow, psychiatrist, provided a report dated 21 March 2017.[129] As accurately summarised in the ASFIC, para 3.1.32:
[H]e diagnosed the Applicant as suffering from an adjustment disorder in remission, which was different from the psychological condition she had suffered in 2011, and stemmed from difficulties with her managers. He did not think the Applicant required any treatment. He thought that her prognosis was good, however would depend on any further aggravation of her physical injury and interpersonal difficulties in coming employment.
(l)Dr Tanveer Ahmed, psychiatrist
[129] T62, 295.
Dr Ahmed, psychiatrist, provided a report dated 22 December 2020.[130] He opined that:
The key diagnosis appears to be some type of chronic pain syndrome. In summary, her pain experience seems over and above any underlying pathology. She is very focused on physical symptoms that do not entirely have evidence... I have not elicited evidence that reaches the threshold of a psychiatric diagnosis.
[130] PT12, 46.
OTHER RELEVANT REPORTS
(m)Dr Farhan Shahzad, Consultant Occupational Physician,
In a report dated 30 September 2020, Dr Farhan Shahzad, Consultant Occupational Physician, noted:
I have been unable to propose a formal diagnosis for Ms Keceski’s presentation. She presents with non-verifiable symptoms in her upper limbs. Her presentation does not clearly resemble a repetitive strain injury. However, objective examination was near normal and it seems that over time there has been a gradual resolution.[131]
[131] PT12, 42.
However, he recommended evaluation with nerve conduction studies, followed up with a neurologist and an opinion from a pain physician.[132]
CONSIDERATION
[132] PT12, 45; ASFIC, 3.1.41.
The NPE decision - 2020/6213
The critical questions are whether, as of 12 August 2020, Ms Keceski continued to suffer from the effects of the accepted arm injuries, and if so, whether those injuries resulted in any incapacity for work or the need for reasonable medical treatment or household and attendant care services. The question is not simply whether the Applicant was in fact incapacitated or impaired, but whether any such incapacity or impairment was the result of the index injuries. The Tribunal must be positively satisfied that the injuries in respect of which it has previously accepted liability no longer, as of 12 August 2020, result in incapacity for work or impairment.
Mr Hilliard argued that she continued to experience the effects of the workplace injury as of 12 August 2020. The original injuries had not resolved and there was a direct causal link between her original work injuries and her experience of chronic pain. He submitted:
… the chain of causation between the work, the inadequate and inappropriate measures initially taken, the continuation of issues whilst continually engaged in computer work, the partial resolution after cessation of work, and the prolonged incapacity by the failure of the department to continue to engage in rehabilitation program support, is clear and is unbroken. She would not have this debilitating pain condition had she not been injured at work and hence the cease effects decision should be overturned.[133] (Emphasis added)
[133] Transcript, 23 November 2022, 77.
Mr Hilliard relied heavily upon the evidence of Dr Ryan. In her professional opinion, the original injuries had not resolved. She did, however, accept that by 12 August 2020 the original injuries had been “superseded” by a chronic pain condition. She described this in her oral evidence as a “sequalae”, by which I take her to mean that there was a causal link between her original injuries and the chronic pain condition.
In her report of 18 December 2017, Dr Ryan opined that Ms Keceski had developed a chronic pain condition and diagnosed “bilateral occupational overuse syndrome triggering chronic pain syndrome”.[134]
[134] T71, 349-350.
Whether factors such as repetitive movement can give rise to local inflammation and sensations of pain, or chronic pain, that continue after the cessation of those activities is of course a medical or scientific question. On that question there were deep divisions between the expert witnesses. The specialists called by the Respondent were sceptical of the claim that repetitive use of a mouse/keyboard combination could cause an injury, to say the least. Dr Vivian, Dr Gorman, Dr McGill and Dr Ridhalgh were deeply sceptical of the theory that her injuries were associated with repetitive wrist action.
Some of the academic papers provided by Dr McGill showed some tenuous connection between lateral epicondylitis and repetitive keying. But upon examination he concluded that the published literature did not support an association between keying activities and lateral epicondylitis.[135]
[135] Report dated 3 March 2021, p 8.
Mr Hilliard tendered an academic paper from the Netherlands which purported to establish a link between the intensity of keyboard and mouse use and the volume of complaints. Objection was taken to this paper because of its late tendering, but I allowed the paper to be received. I have noted its contents above, and the reaction of Dr Vivian to its central thesis.
The medical evidence presented in this case falls well short of establishing that intense keyboard use, and specifically the use of a keyboard mouse, is liable to produce any significant pathology. However, given the acceptance of liability by the Respondent for the accepted arm injuries it is perhaps not surprising that this aspect of the matter was not given more weight.
If Ms Keceski suffered from a chronic pain condition that was caused by the index injuries, then the NPE decision should be set aside. The focus of the hearing was understandably on whether Ms Keceski continued to experience the effects of the original injuries on 12 August 2020.
In Howard v Comcare [2019] FCA 1031, Perry J considered a case in which injuries sustained had developed into a chronic pain condition. Her Honour noted at [37]:
[C]omcare accepted that if an injury arises in the course of employment which itself causes a subsequent injury, then the second injury must also have arisen out of the employment and is therefore compensable under the Act. Comcare also accepted that if, as the applicant contends, the Tribunal in fact found that the applicant’s chronic pain syndrome was causally related to, or an effect or result of, the 2006 injuries, it would follow that the Tribunal had made an error of law in affirming Comcare’s decision. The respondent’s case, however, is that this is not what the Tribunal in fact found.
The learned judge also noted, at [61]:
[M]edical conditions like chronic pain syndrome, which evolve out of primary injuries, are just as much an injury for the purposes of the Act as the primary injury. …[T]he correct position under the Act is that it sufficed if the chronic pain syndrome was caused by the first injury, as the Tribunal accepted in finding as a matter of fact that the chronic pain syndrome was secondary to the injuries suffered in the 2006 accident …
In support of the contention that any ongoing upper limb pain experienced after 12 August 2020 was not caused by the accepted conditions, Mr Kelly pointed to her extensive medical history. That record showed numerous health issues, none of which were disclosed to the employer at the recruitment stage. He invited the Tribunal to find that her description of overwork and the intensity of repetitive work was grossly exaggerated. He suggested that the conditions of her employment as reported to Dr Ryan were distorted exaggerations. He also pointed to the time that had elapsed between her departure from work in mid-2016, and 12 August 2020. He suggested that she was not a reliable witness, as demonstrated by her failure to disclose her medical history in the pre-employment form. He also pointed to external factors, including challenging family circumstances, her divorce, the breakdown of her daughter’s relationship, and her role as carer for her father, who had since passed away.
Mr Kelly emphasised that even if the Tribunal was satisfied that she had never suffered from the accepted conditions because of her employment, he did not seek any orders to that effect.[136] For the avoidance of doubt, in these proceedings the jurisdiction of the Tribunal does not extend to setting aside the original orders, merely to reviewing the NPE determination.
[136] Transcript, 24 November 2022, 91: “In the event that you were to be persuaded that she had never suffered from those conditions as a result of her employment, I do not ask you to set aside the determinations by which liability was accepted in respect of them, because to do so would give rise to a liability on the part of Ms Keceski to repay compensation already received”.
In preparing these reasons the Tribunal has reviewed the medical reports in detail. In summary:
·Dr Ridalgh examined Ms Keceski on 19 December 2019 and could not find evidence of any significant pathology in her neck or upper limbs with regards to her orthopaedic condition.
·Dr McGill examined Ms Keceski on 3 March 2021 and could not detect signs of any physical injury.[137]
·Dr Gorman examined Ms Keceski on 22 November 2021 and found some tenderness but no inflammation. There was no pain under provocation testing. There was no sign of allodynia or hyperalgesia. If her symptoms were initiated by overwork, any soft tissue injury had resolved when he saw her, even while the somatic condition persisted.[138]
·Dr Vivian carried out a telehealth assessment on 29 November 2021. He opined that Ms Keceski did not have a physical injury from performing repetitive activities. From ultrasound, there was some indication of lateral epicondylitis with a mild partial tear. He considered that Ms Keceski no longer suffered the effects of tennis elbow or any other musculoskeletal problem.[139]
·Dr Ho agreed, in his supplementary report dated 15 August 2022, that the initial soft tissue injury had resolved. He considered that medical treatment could “perpetuate and validate” her condition, and that there was a psychosocial component of the chronic pain. He agreed with the assessments of Dr Gorman and Dr Vivian.
[137] Report of Dr McGill, p 8.
[138] ST85, 425.
[139] Medical report dated 9 December 2021.
The weight of medical evidence clearly indicates that by 12 August 2020, the soft tissue injuries had resolved. Dr Ryan appears to concede this much in asserting that the original injuries had been “superseded” by a chronic pain condition, although in her oral evidence she expressed a preference for the word “sequalae” with its overtones of a causal connection. I am satisfied that if Ms Keceski suffered from a chronic pain condition on that date it was not caused by the index injuries. Given that she filed a fresh application for a chronic pain condition after the first reviewable decision was made, it is preferable to consider the CPC matter more fully in that context.
I am satisfied that on 12 August 2020, Ms Keceski did not continue to suffer from the effects of her original arm injuries, and that the accepted conditions deemed to have occurred on 27 June 2013 and 24 April 2014, did not then result in any incapacity for work, or impairment.
I therefore affirm the decision by Comcare, dated 22 September 2020, to affirm the decision to cease present entitlements.[140]
[140] T85, 450.
Chronic Pain Condition - 2021/2611
I turn then to the second application before the Tribunal.
As noted above, on 12 October 2020, Ms Keceski submitted a claim for Bilateral Chronic Pain, Bilateral RSI first noticed in January 2015.[141] The newly reported condition related to Both hands, both thumbs, both wrists, outer and inner arms below elbow, both shoulders across back and up into neck on both sides.[142]
[141] PT4, 6, 7.
[142] PT4, 8.
The delegate rejected Ms Keceski’s claim for chronic pain, finding that the likely causes of her pain condition were external to her employment and psychological in nature and thus not compensable.[143]
[143] PT13, 53-62.
The Applicant identified the relevant issues for determination as follows:
2.2. Whether the Applicant suffers from an ailment, specifically bilateral chronic pain syndrome, or aggravation thereof?
2.3. Whether the Applicant’s ailment, or an aggravation of that ailment, is as a result of the accepted arm injuries and is therefore an “injury” for which the Respondent is liable under s14 of the SRCA?
The Respondent identified the relevant issues for determination as follows:
(a) Whether the Applicant has sustained any injury as claimed by claim for compensation dated 12 October 2020 in accordance with ss 4, 6 and 7 of the SRC Act that is secondary to the Injury.
(b) Whether the Respondent is liable to pay compensation to the Applicant for the claimed pain condition under s 14 of the SRC Act.
(c) If the Applicant has sustained a medical condition as claimed by claim form dated 12 October 2020 that is secondary to the Injury, what the appropriate diagnosis of the condition is, and whether it is an ‘injury’ or a ‘disease’ for the purposes of ss 5A and 5B the SRC Act.
(d) If the former, whether the medical condition arose out of, or in the course of, the Applicant’s employment; and if the latter, whether the medical condition was contributed to, to a significant degree, by the Applicant’s employment, such that Comcare is liable for the injury under s 14 of the SRC Act.
The nature of the claim
Mr Hilliard said that it was not disputed that Ms Keceski suffered from a chronic pain condition. Mr Kelly agreed that it was “universally acknowledged” that she suffered from such a condition.[144]
[144] Transcript, 24 November 2022, 95.
Neither counsel addressed the question whether her claimed CPC amounted to an ‘injury’ or a ‘disease’ for the purposes of sections 5A and 5B of the SRC Act.
Section 5A relevantly defines injury as:
…
(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;
Under either (b) or (c) the dispositive issue would be whether the claimed condition (Bilateral Chronic Pain, Bilateral RSI) arose out of, or occurred in the course of employment. The question is essentially one of causation.[145]
[145] BWFS v Comcare [2021] AATA 324 at [108] (BWFS); Howard v Comcare [2019] FCA 1031 at [61].
Dr Ryan was firmly of the view that Ms Keceski suffered from CPC. It was work related because it was the direct result, or “sequalae”, of the original injury. She was satisfied, based on what she was told by Ms Keceski about the physical nature of her work, that she suffered from an occupational overuse injury which had given way to a chronic pain condition because the original injuries had not been properly treated.
When challenged as to the factual basis for her diagnosis, Dr Ryan said simply that she could not see why Ms Keceski “would make it up”. Dr Ryan did not have the benefit of the forensic process which showed that Ms Keceski had failed to disclose important parts of her medical record at the time of her appointment and was not the most objective or reliable witness. I note Ms Keceski’s reluctance to discuss her medical history with some health professionals, such as the psychiatrist Dr Hong.[146]
[146] Report dated 17 June 2014: T14, 74-75.
Dr Ho accepted that Ms Keceski suffered from a chronic pain syndrome. He said that the index injuries were the likely trigger “maintained by central sensitisation and contributed to by adjustment disorder, catastrophisation and reduced self-efficacy.”[147] He described central sensitisation as involving sensitisation of the pain centres or receptors in the brain which may result in the experience of widespread pain, even in the absence of any direct pain stimuli. Pain may be experienced not only in the sites of original injury, but in other sites as well. This is referred to as nociplastic pain.
[147] ASFIC, 3.1.49.
The other expert witnesses addressed the foundational chronic pain issue with caution and varying degrees of scepticism.
Dr McGill considered that the non-specific diagnosis of “chronic pain syndrome” was appropriate. However, her symptoms were not significantly influenced by the physical demands of her employment.[148]
[148] ASFIC 3.1.47.

Dr Vivian was ambivalent. He could not provide a pain diagnosis. It was “arguable” that she has “central pain (CP) due to central nervous system sensitisation”. If she did have central sensitisation, it was due to other factors. If she had a chronic pain condition it was not contributed to by the physical nature of her work.[149]
[149] RSFIC 4.6(d).
Dr Ridhalgh diagnosed a chronic pain syndrome. However, he said that this diagnosis was a “diagnosis of exclusion”. He could not find any orthopaedic pathology in her upper limbs or cervical spine. His physical findings and clinical investigations did not match the severity of her symptoms.[150]
[150] ASFIC 3.1.38.
Dr Gorman was perhaps the most sceptical. He opined that she had “a somatic symptom disorder, with features typical of chronic pain syndrome”. He did not think her symptoms could be related to her employment.[151]
[151] ASFIC 3.1.52.
Dr Ryan, Dr Ho, and Dr McGill accepted a diagnosis of CPC with varying degrees of enthusiasm, while Dr Ridhalgh did so as a “diagnosis of exclusion” and neither Dr Vivian nor Dr Gorman can be taken to endorse such a diagnosis.
Contribution to a significant degree
Section 4 provides a definition of ‘ailment’ as follows:
‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
If Ms Keceski did suffer from CPC, she would be entitled to compensation on the alternative basis that the Tribunal is satisfied that the CPC is an ailment that was contributed to, to a significant degree, by the circumstances of her employment. Subsection 5B(3) states that “significant degree means a degree that is substantially more than material”.
In Comcare v Power [2015] FCA 1502, Katzmann J stated at [93]-[94]:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial…
Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention…
Subsection 5B(2) identifies a non-exhaustive list of factors that may be taken into account in determining whether an ailment or aggravation thereof was contributed to, to a significant degree, by the employee’s employment.
The Tribunal is required to engage in an evaluative exercise in determining whether a person’s employment made a significant contribution to an ailment or aggravation thereof. The question of workplace contribution is essentially a question of fact for the Tribunal. I propose to consider the identified statutory factors in turn.
(a)The duration of the employment
This is outlined in detail above. As noted above, the Applicant was employed within the Department from 2007 but has not worked since mid-2016. I note her claim that she first noticed the pain condition in January 2015.
(b) The nature of, and particular tasks involved in, the employment
The nature of Mr Keceski’s day to day duties have been discussed at length above (see para [60]). I note her evidence about her workload, and the sense of unfairness she felt about workload allocations. She said that she did not have enough time to get the work done.
(c) Any predisposition of the employee to the ailment or aggravation
There is some evidence that Ms Keceski has a personality type that is vulnerable to anxiety and obsessive behaviour. I also note that there are instances where she has challenged previous administrative decisions concerning her duties, in one case initiating and then discontinuing a compensation claim.[152]
(d) Any activities of the employee not related to the employment
[152] See para [18]-[19] above.
Her domestic circumstances have been detailed above.
(e) Any other matters affecting the employee’s health
There are two overlapping, but different, mechanisms put forward as explanations for Ms Keceski’s reports of chronic pain. It is appropriate to consider these theories as other possible matters affecting her health.
The first theory is that of central sensitisation, as explained by Dr Ho. This was the mechanism to reconcile her continued reporting of pain despite the resolution of the original injury.
The second theory involves a process known as somatisation. A person suffering from somatisation (or Somatic Symptom Disorder – SSD) might experience widespread symptoms of debilitating pain triggered by emotional or non-physiological factors.
The concept of SSD is described in the Diagnostic and Statistical Manual of the American Psychiatry Association (‘DSM-5’). It focuses upon cognitive or behavioural aspects without reference to any triggering mechanism, and without alluding to the subjective experience of chronic pain.[153]
[153] The Diagnostic and Statistical Manual of the American Psychiatry Association (‘DSM-5’) defines Somatic Symptom Disorder (SSD) as follows:
Excessive thoughts, feelings, or behaviors related to the somatic symptoms or associated health concerns as manifested by at least one of the following:
Disproportionate and persistent thoughts about the seriousness of one’s symptoms.
Persistently high level of anxiety about health or symptoms.
Excessive time and energy devoted to these symptoms or health concerns.
DSM-IV previously referred to Somatization Disorder (SD) which was defined as “A history of many physical complaints beginning before age 30 years that occur over a period of several years and result in treatment being sought or significant impairment in social, occupational, or other important areas of functioning”.
Dr Gorman and Dr Vivian considered that Ms Keceski was suffering from a somatic symptom disorder.
Dr Gorman did not disagree with Dr Ho’s description of central sensitisation. He said that he had used this diagnosis hundreds of times. However, he believed that somatisation more adequately explained Ms Keceski’s subjective experiences.
Dr Ho agreed that the diagnosis of SSD was an alternative hypothesis and was distinct from the concept of central sensitisation.
Dr Gorman noted that the processes of central sensitisation and somatisation were closely related but involved different mechanisms. The former occurs where the pain centres of the brain are triggered by the memory of physical pain. A peripheral physical problem causes an ongoing excessive pain complaint – excessive to the complaint of an average person. The pain continues because the pain centres have been sensitised. In such cases, allodynia and hyperalgesia would invariably be present.[154]
[154] Transcript, 22 November 2022, 49.
Dr Gorman thought that he was qualified to make such a diagnosis, because it came up frequently in pain medicine practice. He was experienced in making that diagnosis and had discussed it with numerous psychiatrists over the years. He intimated that a psychiatrist could not make such a diagnosis without input from a physician, to exclude any physical cause.
In her report of July 2021, Dr Ryan stated:
One should note that whilst consultant pain medicine is outside my area of expertise, a chronic pain scenario is multifactorial. Evidence would indicate that there must be a physical musculoskeletal or similar type of trigger in the first place (this has been well-proven in Ms Keceski’s case) however beyond that and with the passage of time, particularly time leading much further away from the date of the original injury, there is often a psychological and behavioural contribution to the chronic pain syndrome.[155] (Emphasis added)
[155] Report dated 15 July 2021, p 8.
If Ms Keceski developed a recognised psychiatric syndrome such as SSD during or after leaving the employment of the Respondent, any connection between the development of that condition and her employment would need to be established, and neither party tendered evidence to support this link. Mr Hilliard invited the Tribunal to walk down that path, although Mr Kelly countered that the case had not been put that way and reserved the right to raise issues of reasonable administrative action taken in a reasonable manner in respect of Ms Keceski’s employment.
Mr Kelly appears to have treated her second claim for CPC as essentially a consequential workplace injury, under paragraph 5A(1)(b), rather than a “disease” under subsection 5B(1). This is apparent from his concluding remark:
So that for all of those reasons the respondent submits that you ought not be satisfied that Ms Keceski’s chronic pain syndrome results from her previously accepted physical conditions. To the extent that it may have been contributed to by her psychological reaction to events occurring in the workplace, that is not the basis of the claim before you. That claim appears at T4, page 7 in the second bundle of T documents for matter 2021/2611. At paragraph 5 she’s asked to describe how this new injury or illness has been caused by an existing compensable condition. And in my submission, if it were [the basis of the claim before you], the respondent would be entitled to explore the matters which were the subject of cross-examination in much greater detail in order to present a defence based on reasonable administrative action.[156] (Emphasis added)
[156] Transcript, 24 November 2022, 100.
Apart from the issue of procedural fairness, there is another reason why I decline the invitation by Mr Hilliard to explore this link. None of the experts who gave evidence to the Tribunal were qualified psychiatrists. Several psychiatric reports were available to the Tribunal, but the concepts of sensitisation and somatisation are not discussed in those reports. Dr Ridhalgh said that he was not qualified to comment on psycho-social factors which were outside his area of expertise. Dr McGill made a similar disclaimer.[157] Indeed, so did Dr Ryan, as noted above.[158]
[157] Report of Dr McGill, pp 8-9.
[158] Report dated 15 July 2021, p 8.
In the absence of clear psychiatric evidence, the Tribunal is reluctant to find that Ms Keceski was suffering from a somatic symptom disorder at the relevant time. I do not think that the evidentiary basis for such a finding is established in these proceedings.
On the evidence available to the Tribunal, it is doubtful whether the phenomenon of central sensitisation provides an adequate explanation for the claimed chronic pain condition. Dr Vivian and Dr Gorman were firmly of the view that central sensitisation was not at work. Neither detected any sign of allodynia or hyperalgesia. Dr McGill did not consider the concept of central sensitisation in his report.
Dr Ridhalgh’s expert opinion was that Ms Keceski’s employment had not contributed, to a significant degree, to her current presentation.[159] Overall, this assessment is supported by Dr McGill, Dr Gorman and Dr Vivian. In terms of the medical evidence, the Tribunal favours their evidence over that of Dr Ryan, whose assessment is not supported, except perhaps by Dr Ho, who ultimately agreed with the diagnosis made by Dr Gorman and Dr Vivian.
[159] T78, 396.
I make this assessment with due deference for Dr Ryan’s expertise and extensive experience as an occupational physician, and her detailed knowledge of the case from 2014.
CONCLUSION
I am not persuaded, on the balance of probabilities, that the index injuries contributed to the Applicant’s chronic pain condition at the date of claim, or that any chronic pain she experienced arose out of, or in the course of, her employment.
I am satisfied that her employment within the Department did not contribute to a significant degree, that is, to a degree that is substantially more than material or trivial, to her claimed pain condition.
DECISION
In accordance with subsection 43(1) of the Administrative Appeals Tribunal Act1975 (Cth), the reviewable decisions dated 22 September 2020 and 7 April 2021 are affirmed.

I certify that the preceding 239 (two hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.........[SGD]...............................................................
Associate
Dated: 18 May 2023

Date(s) of hearing: 21, 22 and 24 November 2022

Counsel for the Applicant: Mr B Hilliard

Solicitors for the Applicant: Mr J Tucker, Slater & Gordon Lawyers

Counsel for the Respondent: Mr B Kelly

Solicitors for the Respondent: Ms K Miller, Sparke Helmore Lawyers

Date(s) of hearing:	21, 22 and 24 November 2022
Counsel for the Applicant:	Mr B Hilliard
Solicitors for the Applicant:	Mr J Tucker, Slater & Gordon Lawyers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Ms K Miller, Sparke Helmore Lawyers