Ranger and Comcare (Compensation) - [2017] AATA 1054

Ranger and Comcare (Compensation) [2017] AATA 1054 (30 June 2017)
Division:GENERAL DIVISION

File Numbers: 2015/0978; 2015/3018
Re:Wendy Ranger
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:30 June 2017
Place:Melbourne

The Tribunal sets aside the decisions under review and substitutes the following decisions:
(a)Ms Ranger suffers from the compensable condition of cervicobrachial regional pain syndrome and is entitled to payments of compensation in relation to medical treatment expenses and incapacity for work pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) as from 7 April 2015 (2015/3018).
(b)In relation to household and gardening assistance pursuant to section 29 of the Act, the Tribunal remits the matter to Comcare for reassessment of Ms Ranger’s ongoing need and entitlement for such services (2015/0978).
(c)Comcare shall pay Ms Ranger’s costs arising from these applications in accordance with section 67 of the Act.

.....................................[sgd]...................................
Regina Perton, Member
COMPENSATION – injury – whether liability still exists – compensation ceased after medical evidence suggested fresh diagnosis – household and gardening services – medical and incapacity payments - where medical experts differ significantly in opinion as to correct diagnosis - decisions set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 19, 29, 67
Cases
Canute v Comcare (2006) 226 CLR 535
EMI (Australia) v Bes [1970] 2 NSWR 238
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Roncevich v Repatriation Commission (2005) 222 CLR 115
Seltsam Pty Ltd v McNeill [2006] NSWCA 158
Secondary Materials
F Wolfe et al, ‘Fibromyalgia and Physical Trauma: The concepts we invent’ (2014) 41(9) The Journal of Rheumatology 1737
F Wolfe et al, ‘What is fibromyalgia, how is it diagnosed and what does it really mean’ (2013) (Accepted article, Arthritis Care and Research, American College of Rheumatology)
JL Quintner, GM Bove and ML Cohen, ‘A critical evaluation of the trigger point phenomenon’ (2015) 54 Rheumatology (Oxford) 392
ML Cohen and JL Quintner, ‘Fibromyalgia syndrome, a problem of tautology’ (1993) 342 The Lancet 906
Robert M. Bennett, ‘The Fibromyalgia syndrome: Myofascial Pain and the Chronic Fatigue Syndrome’ in Kelley, Harris, Ruddy and Sledge (eds), Textbook of Rheumatology (4^th ed, WB Saunders Company, 1993) ch 29
REASONS FOR DECISION
Regina Perton, Member
30 June 2017

Ms Wendy Ranger worked in the public sector for several years before she suffered a medical condition that resulted in her having to take considerable time off work. Between 2000 and 2004 Ms Ranger had a lengthy period off work and undertook a number of rehabilitation programs.
Ms Ranger was seen by various doctors in different specialties after suffering pain in her neck, shoulders and arms. The diagnoses of Ms Ranger’s condition varied. Some medical specialists described it as fibromyalgia, others as cervicobrachial regional pain syndrome with lateral epicondylitis and others still as combinations or variations of the above. Opinions differed as to whether her condition and pain had been caused by the nature of her employment.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ranger and Comcare (Compensation)

Details

AGLC: Ranger and Comcare (Compensation) [2017] AATA 1054
Case: [2017] AATA 1054
Decision Date: 30 June 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Ranger to the Tribunal concerning Comcare's decision to cease her treatment and incapacity payments. Comcare had affirmed its initial determination, preferring the opinion of Dr Reiter over Ms Ranger's treating general practitioner. Ms Ranger sought review of this decision, providing further evidence and oral testimony regarding the ongoing impact of her condition on her daily life, including significant pain, sleep disturbance, and limitations in performing domestic tasks and driving.

The Tribunal was required to determine Ms Ranger's current medical condition and whether it arose from her previously accepted workplace injury. This involved navigating conflicting medical opinions regarding whether Ms Ranger suffered from fibromyalgia or cervicobrachial regional pain syndrome with lateral epicondylitis, and whether her current symptoms were work-related. The Tribunal also had to consider the extent of Ms Ranger's ongoing need for household and gardening assistance.

The Tribunal acknowledged the ideological differences among medical experts regarding the diagnosis of fibromyalgia. It considered the extensive medical evidence, noting that one group of experts, including Dr Reiter, believed Ms Ranger suffered from fibromyalgia, which they considered a constitutional condition not necessarily work-related. Conversely, another group, including Professor Cohen, viewed her condition as cervicobrachial regional pain syndrome, with Professor Cohen expressing reservations about the "fibromyalgia brand" altogether. The Tribunal noted that Ms Ranger consistently described pain in her upper body since the onset of her condition, which she attributed to her workplace injury.

Ultimately, the Tribunal set aside Comcare's decisions. It found that Ms Ranger continued to suffer from cervicobrachial regional pain syndrome and remained entitled to compensation for medical treatment expenses and incapacity for work from 7 April 2015. Regarding household and gardening assistance, the Tribunal remitted the matter to Comcare for a fresh assessment of Ms Ranger's ongoing needs and entitlement. Comcare was also ordered to pay Ms Ranger's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 7 April 2015 Comcare determined that Ms Ranger was no longer entitled to treatment and incapacity payments. On 11 April 2015 Ms Ranger sought review of that decision. On 29 May 2015 a review officer of Comcare affirmed the determination preferring Dr Reiter’s opinion to that of her treating general practitioner. On 18 June 2015 an application was lodged with the Tribunal (2015/3018).ADDITIONAL EVIDENCE AND SUBMISSIONS BEFORE THE TRIBUNAL Ms Ranger provided a statement dated 17 September 2015 and gave oral evidence. She summarised the history of her employment, the severe pain she began to experience from 2000 onwards, her periods off work, the differing early diagnoses of general practitioners, Dr Sood (namely fibromyalgia) and Dr Watson (namely not fibromyalgia but cervico-brachial neuralgia and bilateral lateral epicondylitis). Ms Ranger had also lodged several written statements over the years between 2002 and 2015. Ms Ranger described the current impact of her condition in her 17 September 2015 statement in the following terms:…18 I have great difficulty sleeping as I am woken through the night by pain, and frequently I am woken by incessant nerve and muscle spasms, which are unpredictable. The medication I take to manage daily pain contributes to my sleeping difficulties.19 I experience varying levels of pain daily, I have rarely had a pain free day in nearly 15 years. I manage my condition with a strict regime of activity, physical therapy, rest and medication.20 I avoid the following tasks because I have been advised not to do so:a. Sweepingb. Moppingc. Vacuuming21 I currently refrain from driving because:a. I experience muscle and nerve spasms which on occasion have forced my hands from the wheel.b. I take prescribed doses of Valium and oxycodone daily, which strongly affect my ability to concentrate.22 I can complete light domestic tasks, but I pace them throughout the week, ensuring I have enough time to recover from each attempt.23 I perform light dusting and tidying around the house and I can perform light cooking preparation.24 I am unable to change the sheets on my bed without assistance. It often takes me four or five attempts to change the quilt-cover.25 I have had to cut my hair short, as some days, I cannot wash or maintain my hair without experiencing unbearable pain.Home and Gardening assistance26 Prior to my injury, I maintained my house myself. After my children moved out, I lived on my own, then with my partner. I still tidy around the house, and lightly dust, but prior to my injury I completed all the tasks which Comcare had provided for me since 2005:a. Vacuuming the carpeted areasb. Mopping the wet areasc. Cleaning the bathrooms. Ms Ranger’s daughter was living with her at the time of her statement. Ms Ranger gave evidence that her daughter works full time and commutes via public transport to her job, leaving on the 6.45 am bus and often not coming home until after 6.30 pm. Her daughter also has chronic health problems and has a regime of exercise and medical appointments. Her daughter helps around the house and helps with activities such as hanging out heavy washing or helping to change the sheets.

Decision

Reasons for decision

It follows from the decision regarding Ms Ranger’s condition that the reviewable decision in relation to household and gardening assistance can no longer be maintained, at least insofar as it relied on the finding that Ms Ranger’s need for assistance did not arise from a work-related condition. The Tribunal is of the view that Ms Ranger continues to require some household and gardening assistance, and the extent to which her daughter is currently able to assist her remains unclear on the evidence. The Tribunal will remit that finding to Comcare for a fresh assessment of what Ms Ranger’s needs currently are. The Tribunal believes that an award of costs to Ms Ranger, in accordance with section 67 of the Act, is appropriate.DECISIONS The Tribunal sets aside the decisions under review and substitutes the following decisions:(a)Ms Ranger continues to suffer from cervicobrachial regional pain syndrome and is entitled to payments of compensation in relation to medical treatment expenses and incapacity for work pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) as from 7 April 2015 (2015/3018).(b)In relation to household and gardening assistance pursuant to section 29 of the Act, the Tribunal remits the matter to Comcare for reassessment of Ms Ranger’s ongoing need and entitlement for such services (2015/0978).(c)Comcare shall pay Ms Ranger’s costs arising from these applications in accordance with section 67 of the Act.

Ratio Decidendi

Legal Principle Established

Mr Wallace submitted that the Tribunal should make a finding of fact that Ms Ranger was suffering from fibromyalgia, based on the opinion of Dr Reiter and others, as well as the writings of Wolfe et al.CONSIDERATION This case poses complex questions. Not only does the Tribunal have to decide, on the balance of probabilities, what Ms Ranger’s current condition is and whether her current condition still arises from her previously accepted workplace injury, but also deal with the overlay of ideological differences between rheumatologists as to whether certain conditions actually exist. It must determine whether Ms Ranger’s current symptoms are best described as fibromyalgia or cervicobrachial regional pain syndrome with lateral epicondylitis. In looking at almost seventeen years of medical evidence and diagnoses, the conclusions of the various medical experts fall into two broad groups. One group, now led by Professor Cohen, is firmly of the view that Ms Ranger does not suffer from fibromyalgia now and did not suffer from a condition of that description at the time of initial injury. As can be seen from the reports, Professor Cohen is strongly of the view that pain symptoms should not be under the fibromyalgia brand at all. The other group, whose views are most thoroughly articulated by Dr Reiter, believes that Ms Ranger’s condition is best described as fibromyalgia, that it is a constitutional condition which is not now work-related and indeed, probably never was. Ms Ranger has described suffering from the same type of pain, with huge implications for her lifestyle, since she first developed the condition in the workplace with computer work being a major factor. Ms Ranger has stated that the pain is primarily in her upper body. The pain in her shoulders subsided somewhat at various times but the pain in her neck and upper arms and outside of her elbow has continued. Ms Ranger’s treating general practitioner since 2010, Dr Ismail, is of the view that Ms Ranger suffers from cervicobrachial regional pain syndrome. Dr Ismail sees Ms Ranger regularly and notes that the pain is in Ms Ranger’s upper body. Dr Ismail has undertaken her own research on the issues as a result of this case and is strongly of the view that Ms Ranger does not suffer from fibromyalgia as she does not meet the criteria in relation to the sites of the pain. Both Dr Reiter and Professor Cohen have only examined Ms Ranger on the one occasion, the former on 11 December 2014 and the latter on 25 March 2015. Dr Reiter states that Ms Ranger responded to her questions about whether she experienced back pain with positive responses. Ms Ranger could not recall doing so. Ms Ranger identified her pains as being in her upper body. She told the Tribunal that she did not have knee pain and rarely suffered from back pain. Professor Cohen stated that Ms Ranger’s condition could best be described as cervicobrachial regional pain syndrome, although it is apparent he has some degree of reservation when it comes to labelling pain syndromes. He accepted that early diagnoses by a number of medical professionals were that the condition was work-related. However both he and Dr Reiter have examined her more than a decade after she was superannuated out of the public sector due to her medical condition.