Ranger and Comcare (Compensation)

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.
Ms Ranger lodged a claim for compensation in January 2002 in relation to an injury of bilateral lateral epicondylitis, cervico brachial neuralgia syndrome and extensive forearm muscle belly inflammation. She noted in the claim form that she had been diagnosed with fibromyalgia in July 2000. Ms Ranger stated that the injury was caused by her usual occupation which was administrative work involving extensive computer use. At the time, Ms Ranger worked as an APS6 at the Department of Defence.
On 15 March 2002, Comcare agreed to allow the claim for cervicobrachial syndrome (diffuse) and lateral epicondylitis (bilateral) finding that the conditions were contributed to in a material degree by her employment. Over the next two years or so, Ms Ranger was assessed by a range of specialists in relation to whether she could undertake return to work programs, her need for home help support and other related matters.
On 18 February 2005, Ms Ranger filed a claim for compensation for permanent injury. She subsequently filed a non-economic loss questionnaire dated 4 April 2005. On 12 July 2005, the claim for permanent impairment and non-economic loss was denied.
On 8 June 2005 Ms Ranger signed a document consenting to her retirement from the public service on the grounds of invalidity, nominating 29 June 2005 as her preferred retirement date.
On 12 October 2005, the determination dated 12 July 2005 was revoked and it was decided that Ms Ranger was entitled to compensation arising from permanent impairment and associated non-economic loss in respect of the compensable condition. The Review Officer determined that Ms Ranger suffered a 23% whole person permanent impairment as a result of her accepted compensable condition.
By a letter dated 20 January 2006, Ms Ranger sought an extension of liability to cover her thoraco-lumbar spine. On 3 March 2006 Comcare made a decision in relation to Ms Ranger’s claim for compensation in relation to an impairment described as a thoracic back condition. The delegate noted that a recent report provided evidence supporting a claim for injury to and impairment of [Ms Ranger’s] thoraco-lumbar spine. The delegate determined the condition was not compensable as it was not related to Ms Ranger’s accepted claim. On 11 August 2006 a Comcare review officer reconsidered the decision, and decided that:
I am unable to increase the 23% whole person permanent impairment assessment arrived upon in the reviewable decision dated 12 October 2005. In this regard, I find that the employee has failed to establish that she has suffered at least a 10% further or new impairment as a result of her accepted compensation condition: see subsection 25(4) of the Act.
Ms Ranger sought review of this decision in the Administrative Appeals Tribunal. On 18 April 2007, however, Comcare reconsidered, on its own motion, both the decision dated 3 March 2006 and the determination dated 12 June 2005, on the basis that the decisions were incorrect in the way of not being complete. The Reasons for Decision provided a comprehensive history of Ms Ranger’s permanent impairment claims. The decision affirmed the decision dated 3 March 2006 relating to the thoracic back condition, but revoked the decision of 12 July 2005 regarding permanent injury. The review officer determined that Ms Ranger had suffered 27% whole person impairment as a result of her accepted compensable condition rather than a lower level of impairment. The effect of this was that the proceedings in the Administrative Appeals Tribunal were ended.
The first application for household assistance in the evidence before the Tribunal was made on 8 July 2008, when Ms Ranger made an application for two hours gardening services per fortnight for lawn-mowing, and two hours cleaning services per week. As part of the approval process Ms Ranger was required to provide medical and other evidence to show that she needed that support and she did so in July 2009 and 26 May 2010. Further claims were allowed in the terms of Household Domestic Services 2 hours per week on 18 October 2010, Household services on 18 October 2011, Household/gardening services for 2 hours/week on 16 October 2012. On 2 October 2013, Comcare determined that both Household services for 2 hours/week and Gardening services for 2 hours/week were payable.
On 21 November 2014, following an assessment by an occupational therapist, a Comcare delegate determined that household services would be reduced from two hours per week to two hours per fortnight until 30 October 2015 and gardening/mowing services for two hours per month up to the same date. Ms Ranger was also advised that she would be reimbursed the cost of a lightweight vacuum cleaner. The delegate also suggested that Ms Ranger’s adult daughter could help her with household duties.
On 25 November 2014 Ms Ranger asked that the gardening services be kept fortnightly in the summer months and advised of her daughter’s full-time and travel workload. As a result of discussions with Ms Ranger, the delegate made another decision on 27 November 2014, changing the gardening services to two hours per fortnight up to and including 31 January 2015, two hours per month from 1 February 2015 to 31 July 2015 and two hours per fortnight from 1 August 2015 to 30 October 2015.
On 8 December 2014 Ms Ranger requested reconsideration of the delegate’s decision concerning household and gardening services. Comcare commissioned further medical reports and Ms Ranger provided further reports and information. On 17 February 2015 a Comcare review officer revoked the determination made by the delegate on 21 November 2014. The review officer determined that Ms Ranger had no entitlement to household and gardening services. The review officer made this decision on the basis of new medical evidence which suggested that Ms Ranger’s symptoms were not related to her compensable medical condition. The review officer also considered that Ms Ranger’s daughter was able to assist her with household duties.
On 21 February 2015 Ms Ranger lodged an application for review with the Tribunal in relation to the refusal of ongoing household and gardening services. That is the substance of proceeding 2015/0978.
On 2 March 2015 a Comcare delegate wrote to Ms Ranger expressing the preliminary view that she was no longer entitled to medical expenses or incapacity payments on the basis that her current medical condition was not related to her compensable injury sustained some 14 years earlier. On 7 April 2015 the delegate determined that there was no longer liability for the previously accepted conditions. On 29 May 2015 a review officer affirmed the determination.
On 22 June 2015 Ms Ranger lodged an application for review with the Tribunal concerning denial of present liability, which is the substance of proceeding 2015/3018.
The Tribunal considered both applications together as they both resulted from Comcare's decision to determine that there was no longer liability for the injury that was accepted in 2002 as being work-related.
LEGISLATIVE PROVISIONS
Some relevant provisions of the Act have changed since Ms Ranger’s claim in January 2002, while others have remained the same. In January 2002 the definition of injury in section 4 of the Safety, Rehabilitation and Compensation Act 1986 (the Act) was as follows:
4 Interpretation
(1)In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
The Act was amended in 2007, with the current definitions being found in ss 4, 5A and 5B of the Act:
4         Interpretation
(1)In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury has the meaning given by section 5A.
…
5A      Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
5B      Definition of disease
(1)In this Act:
disease means
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
Section 14 of the Act refers to payment for compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment. Section 16 applies to medical treatment for accepted injuries. Section 19 concerns compensation where a person is incapacitated for work due to an injury. Section 29 concerns compensation for household services.
MS RANGER’S MEDICAL CONDITIONS & RELATED MATTERS
Ms Ranger commenced at the Department of Defence in 1997 in the Budget and Estimates Branch. In 2000 she was given a position within a special project team where she began to experience pain in her back, shoulders and upper arms. Her then general practitioner, Dr Neena Sood, initially diagnosed the condition as fibromyalgia. Ms Ranger was unable to work for about three months and then undertook a graduated return to full-time work over some ten months. After two months back on full-time duties her symptoms returned. In 2001 Ms Ranger was transferred to two different teams.
Ms Ranger’s work in the various positions she held in Defence involved considerable computer work. She described having few breaks from her keyboard activities. Ms Ranger indicated that her symptoms were always worse when she had strict deadlines to meet as she took fewer breaks to try and achieve what was asked of her.
Upon her symptoms worsening towards the end of 2001, Ms Ranger consulted another general practitioner, Dr Tim Watson. He disagreed with the earlier diagnosis of fibromyalgia describing Ms Ranger’s condition as cervico-brachial neuralgia, muscle belly inflammation and bilateral – lateral epicondylitis and indicated that these conditions were the result of overuse.
Ms Ranger lodged a claim for compensation on 11 January 2002 with the injury described as bilateral lateral epicondylitis, cervico-brachial neuralgia syndrome and extensive forearm muscle belly inflammation. She stated that she suffered from pain in my neck, shoulders and arms (upper and lower arms), muscle tightness and soreness. The impact on her was described as:
I can’t sit for long periods. My arms ache when typing. I can’t drive my car. My arms tire quickly when exercise.
Ms Ranger stated in her claim form that the injury was caused by computer usage:
The injury was caused during my usual occupation. This involves administrative work including computer use – typing of reports etc, use of spreadsheets (and) use of financial system.
Dr Kenneth Muirden, consultant rheumatologist, prepared a report dated 23 February 2002 at Comcare’s request. Dr Muirden’s summary and assessment was as follows:
Ms Ranger is a public servant who has been diagnosed as having fibromyalgia in the past with a history of pain in the region of her upper back and behind her shoulders. There was no real history of very diffuse aches and pains to go with that diagnosis of fibromyalgia.
In October/November 2001 she described shoulder and arm pain that appeared to occur after a day of keyboard activities, particularly associated with deadlines to be met.
Examination showed a number of tender points affecting the trapezius, the neck muscles and her shoulders and she also has signs of a lateral epicondylitis affecting both elbows.
My diagnosis is one of cervicobrachial regional pain syndrome with features of bilateral lateral epicondylitis with features of fibromyalgia in the form of tender points, for example, in the trapezius muscles, but in my opinion Ms Ranger does not fulfil diagnostic criteria of fibromyalgia.
In response to a prompt question asking whether the condition is related to the workplace Dr Muirden stated:
I am inclined to agree with the opinion of Ms Ranger’s treating medical practitioner, Dr Watson, that workplace activities provided a substantial contribution to the cervicobrachial regional pain syndrome and the bilateral epicondylitis
…
In my opinion, the repetitive keyboard activities and mouse work under the pressure of deadlines contributed to the development of the regional pain syndrome.
Dr Muirden recommended that Ms Ranger receive counselling from a clinical psychologist in relation to pain coping skills. He also recommended that Ms Ranger should start a slow, graduated return to work, which had also been recommended by Dr Watson.
On 15 March 2002 Comcare accepted that the conditions of cervicobrachial syndrome (diffuse) and lateral epicondylitis (bilateral) were work-related injuries.
On 2 April 2002 Ms Ranger was seen by Dr Peter Warfe, a rehabilitation specialist, who recommended a three month rehabilitation program, part of which was to help Ms Ranger manage her pain levels. By July 2002 Ms Ranger indicated that her shoulder pain had lessened and her strength and mobility had improved. Ms Ranger was not working whilst undertaking that program. Dr Warfe suggested that she try to return to work.
On 10 September 2002 Dr Virginia Pascal, consultant occupational physician, provided a comprehensive report to occupational therapist, Ms Jill Shanahan, who was assisting Ms Ranger with her rehabilitation. Dr Pascal gave the opinion that:
1. Current diagnosis
I did not find any evidence in Ms Ranger’s history as she gave it to me, or her examination, to consider that she has complex regional pain syndrome, Type 1. I am more inclined to concur with Dr Muirden who speaks of cervicobrachial syndrome although I noted that at this stage she has very little cervical symptoms, but mostly thoracic.
I would consider the origin of her symptoms to have been static muscle loading, and perhaps work did contribute at the time, although I would not consider that there were any significant work factors that contributed to her deterioration in August.
There is also some contradiction in whether her symptoms were present in the morning when she woke up, or whether they occurred only after a few hours of work…
Once her pain symptoms are triggered off, they seem to escalate quite easily without her being able to do anything preventative. In that sense, her trepidation and anxieties about her symptoms probably encourage this escalation.
I cannot see that there will be any improvement in her capabilities until she can work through her pain…
…
She also has the tenderness of lateral epicondylitis, but it will not be caused by keyboard work alone, as epicondylitis requires forceful as well as repetitive movement in its causation. In the diagnosis of fibromyalgia, the lateral epicondyles are tender points of unknown pathology rather than disease entities of their own. Ms Ranger does not have sufficient typical tender points to make a diagnosis of fibromyalgia.
…
2. Prognosis
I consider that Ms Ranger will continue to have pain for many months, or several years…

Ms Ranger officially ceased working with the Department of Defence in January 2004. As noted above, Ms Ranger retired from the public service on ill-health grounds on 29 June 2005.
There were many medical reports by various doctors of differing specialties during 2003, 2004 and 2005. The Tribunal will not, in these Reasons for Decision, report on all of the examinations undertaken and opinions given. There were differing opinions given about the cause of the pain felt and whether the condition was work related.
On 3 March 2006, and on reconsideration on 11 August 2006, Comcare rejected liability for Ms Ranger’s claim. However, following an application to this Tribunal, the matter was settled with Ms Ranger on the basis of Comcare accepting that she suffered a permanent impairment to her thoracic spine, cervical spine and arms. Ms Ranger was also entitled to incapacity payments and medical treatment expenses.
In the following years, Ms Ranger applied for, and was given, household and gardening assistance. Each time she sought renewal of these services she was required to provide medical reports and describe her domestic situation.
On 16 October 2012 Comcare, after seeking relevant medical reports, allowed for two hours per week of household/gardening services up to and including 4 October 2013. On 2 October 2013 Comcare allocated two hours per week of household services up to and including 24 September 2014 and gardening services for two hours per week up to the same date.
On 19 September 2014 Ms Ranger lodged a fresh application for household help and gardening services seeking the same level of help that was authorised by Comcare for the previous year. Endorsement of her request was provided by her general practitioner, Dr Ailina Ismail. Ms Ranger also submitted a Physiotherapy Treatment Notification Plan dated 9 October 2014 prepared by her physiotherapist, Mr Darren Rose.
On 9 October 2014 a Comcare delegate wrote to Mr Kevan Walsh, occupational therapist, confirming that he would see Ms Ranger to undertake an activities of daily living assessment. A series of questions was asked about her home, her ability to do various tasks and related pertinent questions. On 15 October 2014 another Comcare delegate wrote to Ms Ranger’s general practitioner asking that she respond to various prompt questions about Ms Ranger’s diagnosis and prognosis, the relationship of her condition to her employment and other related conditions.
Dr Ismail replied to Comcare on 21 October 2014 stating that Ms Ranger suffered from severe diffuse cervical Brachial Neuralgia Syndrome and bilateral lateral epicondylitis due to repetitive strain injury. Dr Ismail stated her patient suffered from chronic pain and restricted mobility of her neck, shoulder and upper limbs. Dr Ismail was of the opinion that Ms Ranger’s condition is related to employment leading up to 2001. Ms Ranger’s prognosis was described as uncertain. Dr Ismail stated that chronic pain and restricted mobility were the barriers to Ms Ranger’s employment in any type of work.
On 23 October 2014 a Comcare claims officer wrote to Ms Ranger seeking a letter from Ms Ranger’s daughter’s employer about her hours of work. This followed Ms Ranger stating in her claim form that her daughter spent 50 hours per week in work/travel and 10 to 15 hours per week in recreational activities. She also noted that her 31 year old daughter was staying with her at the time she filled in the form but was unsure of duration of stay.
On 23 October 2014 Ms Ranger’s daughter’s employer provided a statement that she works full-time, namely 37.5 hours per week. The daughter sent the following note dated 27 October 2014:
Further to the letter provided by my HR department confirming my hours of work, I also advise that my travel time to and from work is approx. three hours a day. I leave in the morning at 6.40am and do not get home until after 6pm every day. On top of this I have other personal appointments two to three times a week that do not see me home until after 7.30pm.
…
On 23 October 2014, the occupational therapist, Kevan Walsh, wrote to Dr Ismail asking for additional information:
…
I met with Wendy at her home on Tuesday and attempted to contact you by phone.
In considering Wendy’s entitlement to ongoing cleaning and gardening services, I require some additional information from you as her treating medical practitioner.
What current physical limitations does Wendy’s compensable condition cause?
With appropriate adaptive equipment i.e. steam mop, light weight vacuum cleaner, long handled brushes and activity pacing would you expect Wendy to be able to increase her activities in the home?
…
Dr Ismail responded on 28 October 2014:
With regards to your questions:
1. Current physical limitations of the above patient –
Chronic pain upper limbs and neck area.
Restricted mobility of upper limbs and muscle weakness eg grip and flexing of forearms that can often lid [sic] to dropping things unintentionally
paraesthesia on and off of bilateral hands
unable to fully abduct shoulders
spasm and restricted movement of neck
2. No, as repetitive movements usually will aggravate her chronic condition.
On 29 October 2014 Mr Walsh provided a report to Comcare. His recommendation was as follows:
Give [sic] Wendy’s self-reported capacity to undertake some domestic activities and the residence of her adult daughter, reduction in household services from two hours to per week to two hours per fortnight is considered appropriate. Whilst another adult lives in the home, there should be no requirement for Comcare to fund cleaning of their portion of the home, ie bedroom and bathroom areas.
The provision of a lightweight stick vacuum cleaner in conjunction with the existing steam mop should be sufficient to allow Wendy to undertake light cleaning of her home between visits from the professional cleaner.
I have attached for your records information provided by Dr Ismail and my facsimile request noting that the information provided does not preclude an individual from completing some day to day domestic activity particularly where support with heavier activities is provided on a regular (in this case recommended fortnightly) basis.
In my professional opinion gardening tasks i.e. the use of a lawn mower are unlikely to be within Wendy’s physical capacity now or in the future, continued provision of gardening services is recommend [sic] however frequency to be reduced to 2 hours per month.
…
On 21 November 2014 a Comcare delegate wrote to Ms Ranger summarising the contents of Mr Walsh’s report and advising that a decision had been made for household services for two hours per fortnight and gardening/mowing services for two hours per month until 30 October 2015.
On 27 November 2014 Ms Ranger sent an email to a claims officer at Comcare:
Following on from my call this morning, I request that gardening services be kept at fortnightly during the summer months. I would appreciate this being effective immediately while I gather the information required for a formal review of the household determination as a whole.
This request is made on the basis that the grass is now growing at a faster rate than in winter, and the bushes on either side of access paths will require more frequent maintenance if I am to be able to use the side gate (and put the rubbish tins out).
Your early clarification of this would be greatly appreciated…
On 27 November 2014 a Comcare delegate adjusted the gardening compensation payments to:
·Gardening services for 2 hours per fortnight up to and including 31 January 2015
·Gardening services for 2 hours per month from 1 February 2015 to 31 July 2015
·Gardening services for 2 hours per fortnight from 1 August 2015 to 30 October 2015
On 8 December 2014 Ms Ranger lodged a reconsideration request concerning the reduction in household and gardening services asking that the services be restored to their previous level. She lodged a comprehensive submission outlining the issues she faced in dealing with her symptoms and explained what she could and could not do. Ms Ranger provided photographs and drawings of the garden and residence, climate statistics, a quote for a stick vacuum cleaner and a letter from her general practitioner in support of her request. Ms Ranger asked for the cleaning and gardening services to each be reinstated to two hours per week.
In her submission to Comcare, Ms Ranger commented on the contents of Mr Walsh’s report, stating amongst other things:
…
My symptoms are indeed as described, with varying levels of pain and restricted mobility. I would not describe the severity of my symptoms as mild at ANY time. I have not had a pain free day in almost a decade and a half, and experience almost constant muscle and nerve spasms. The symptoms are managed, but not eliminated, under a strict regime of activity management, physical therapy and medications. The pacing of the activities I am permitted to do helps, but the pain experienced does not just have an impact during the performance of these tasks, but extends for hours, days and even weeks after the activity itself. Dr Ismail has provided further details in her attached letter.
…
The activities I can manage are light ones including general tidying, dusting, light meal preparation and self-care. Although I have not been provided services with regard to dusting, tidying etc. they are not easy for me and must be spread throughout the week and include breaks. One of my most difficult challenges is changing my bed. It takes me three or four sessions to get the quilt into the cover, and pull the fitted sheet over the corners of the bed. A flat sheet would require me to lift the mattress higher and cannot be borne. My daughter helps me with this, or I have friends who are happy to help if they are visiting. This is just one example of a task that most people take for granted, but it is a painful, stressful experience for me.
…
I do NOT sweep, mop or vacuum as it has been recommended to me by many health professionals that these activities be avoided. It is well documented that these tasks are known to aggravate the condition, and pacing does not negate the repetitive nature, or overly stressful arm movement necessary. Neither does it prevent the increased pain and spasms. On the contrary, it causes them! Dr Ismail has gone in to further details on this subject.
…
Dr Ismail’s strongly worded letter dated 27 November 2014 indicated that she had been Ms Ranger’s doctor since 2011. Dr Ismail disagreed with a number of points made by Mr Walsh. She expressed her concern that her recommendations were ignored with the occupational therapist’s report, based on one visit where he did not examine her range of movements, having been given greater weight than hers.
A letter from a prominent retailer of vacuum cleaners dated 25 November 2014 described the one recommended by Mr Walsh as:
As per our phone conversation, I have confirmed that the weight of an assembled, empty Freejet is 2.9kgs. The handivac, when detached from the machine, is 1.7kgs.
Please be advised that this machine only has a 350ml dust capacity, a battery run time of between 10 minutes and 20 minutes (the battery drains faster when the turbo brush is switched ON), and it takes 3-4 hours to recharge when flat. For these reasons, we wouldn’t usually recommend a cordless stick vacuum to replace a normal vacuum in a medium to large home…
Additionally, cordless stick vacuum cleaners generally don’t have the same suction power as a normal vacuum, so they generally don’t get quite as a deep a clean….
On 22 December 2014 Dr Loretta Reiter, consultant rheumatologist, prepared a report after examining Ms Ranger on 11 December 2014 at Comcare’s request. Dr Reiter’s opinion following the examination and a history taken from Ms Ranger was as follows:
SUMMARY AND ASSESSMENT:
Diagnosis:
Ms Ranger meets the criteria for fibromyalgia, with tender trigger points in all muscle groups. Fibromyalgia is an intrinsic condition and is not a work-related condition. The literature evidence does not support a role of “work-related trauma/injury” in the causation of fibromyalgia.
Frederick Wolfe et al, one of the world’s leading authorities on Fibromyalgia recently published an article in The Journal of Rheumatology, September 1, 2014, vol.41 no.9 1737 – 1745, titled “Fibromyalgia and Physical Trauma: The concepts we invent”, where after a literature search he concluded “Despite weak to non-existent evidence regarding the causal association of trauma and Fibromyalgia (FM), literature and court testimony continue to point out as if the association were a strong and true association. The only data that appear unequivocally to support the notion that trauma causes FM are case reports, case series, and studies that rely on patients’ recall and attribution – very low-quality data that do not constitute scientific evidence.”
In response to questions posed by Comcare, Dr Reiter stated that Ms Ranger’s prognosis for fibromyalgia is extremely poor, as she has had all available treatment and she has had persisting pain for over ten years. Dr Reiter stated that on the balance of probabilities, there was no relationship between her condition and her employment. She also stated that Ms Ranger’s condition was due to the underlying constitutional condition of fibromyalgia. The condition was not due to the natural ageing process or superseded by a different condition. Dr Reiter stated that the medication Ms Ranger was taking was reasonable to try for her fibromyalgia. In relation to the physiotherapy treatment being undertaken by Ms Ranger, Dr Reiter stated:
Ms Ranger does not need physiotherapy in relation to her so-called injury. She has fibromyalgia, which is an intrinsic, constitutional condition. There is no evidence that hands-on physiotherapy improves the outcome of reduction of pain and increased function in patients with fibromyalgia.
In response to a question regarding whether Ms Ranger required household services as a result of the injury, Dr Reiter stated that:
[Ms Ranger] does not reasonably require household services, as a result of her so-called work-related injury, as she actually has fibromyalgia, which is an intrinsic, constitutional condition.
Dr Reiter indicated that Ms Ranger currently had no capacity to engage in any work and that she is unfit to return to work in the foreseeable future as she has a chronic condition of fibromyalgia, which has a poor prognosis, and which is unlikely to resolve.
On 22 December 2014 a Comcare delegate wrote to Dr Ismail enclosing a copy of Dr Reiter’s report. Dr Ismail was asked a series of questions in relation to her opinion of Dr Reiter’s report as Ms Ranger’s general practitioner.
On 22 January 2015 Ms Ranger provided a response to a request for further information as requested by Comcare officers sometime in December 2014. Ms Ranger provided documents including a letter from Dr Ismail, another from Mr Darren Rose, her physiotherapist, a letter from her daughter, her daughter’s general practitioner and her daughter’s personal trainer, photographs of the garden, advice from the local council regarding snakes and garden maintenance and a recent Facebook post from a local snake catcher.
Ms Ranger stated that her condition had deteriorated since Mr Walsh had undertaken his assessment. She pointed out that Dr Ismail did not agree with Mr Walsh’s conclusions three months earlier and that her condition is now worse. Dr Ismail provided a report dated 23 January 2015 in which she described the impact of Ms Ranger’s condition and maintained her original diagnosis. She discussed the negative impact on Ms Ranger of having to do the heavier household chores and the increasingly long recovery time. She also stated:
…
Chronic Brachial Neuralgia Syndrome has complex and unpredictable patterns. These patterns have been consistent since her diagnosis in 2001.
On 29 December 2014 Darren Rose, Ms Ranger’s treating physiotherapist, provided a report in which he stated:
Wendy Ranger initially attended on 9/10/14. She had neck and thoracic stiffness thoughout her facet joints and widespread spasm. He [sic] symptoms were consistent with a chronic cervico-thoracic dysfunction which originated from a 2001 Comcare injury.
…
Her pattern of recurring re-aggravation and contemporaneous treatment for short periods has occurred since her original injury. She has progressed well over the course of treatment until a recent exacerbation associated with some hours doing word processing and computer work, related to her claim, which was similar to the precipitating factors of the original injury. It is also likely that the associated stress is not helpful.
…
Wendy already has high pain levels and mobility restrictions. It is not appropriate to reduce the household and gardening assistance that has been provided in the past, or which is currently recommended by her treating doctor. Such action will result in further deterioration in her condition.
On 3 February 2015 Dr Ismail responded to Comcare’s invitation dated 22 December 2014 to comment on Dr Reiter’s report of that date. Amongst other things, Dr Ismail stated:
Regarding Dr Reiter’s report and your questions:
1.
The general history provided by Dr Reiter is reasonable.
Onset of symptoms /sequence of events:
The onset of symptoms was during Wendy’s employment with the Department of Defence. Despite time off, and a range of treatments her symptoms returned each time when Wendy went back to her administrative duties. Dr Reiter herself has acknowledged that between 2001 and 2005 the numerous graduated return to work programs resulted in increased pain and more time off work, sometimes for many months.
Current Status:
The upper limbs, upper back and neck pain is as described. Dr Reiter refers to buttock, lower back and leg pain however Wendy reported that these were only very occasional occurrences. This is consistent with Dr Pascall noting as early as September 2002 no lumbar or leg pain was reported. Wendy has never sought or received treatment other than for upper back, neck and arms. Wendy’s current physiotherapist reports that Wendy recently presented with symptoms consistent with the accepted condition.
…
Wendy does not fully meet the criteria for fibromyalgia. She doesn’t have symptoms such as overall body pain, concentration issues, digestive disorders, headaches, balancing problems etc that also encompasses fibromyalgia. The lower limbs and back have never been treated or even considered in Wendy’s Comcare claim. CBNS and epicondylitis have long been agreed and accepted as work related by medical practitioners and Comcare since 2001. There was no history of fibromyalgia before the onset of symptoms in the workplace as reported in 2001. The original diagnosis of fibromyalgia by Dr Sood was found to be incorrect.
Please note there have been similarities in many chronic pain syndromes and disagreements within the medical profession regarding them still do exist. These have been mentioned before by Wendy’s previous GP, Dr Watson and her rheumatologist Professor Champion.
2.
Regarding Dr Wolfe’s report which can be sourced from the Journal of Rheumatology. The quote was taken from the abstract of the article. May I bring to your attention that the author was analysing previous studies on the association between fibromyalgia and motor vehicle accidents, unfortunately, neither of which are relevant to this case.
I have taken a lot of time to peruse all her previous reports and documentation regarding her case which I’m sure you have copies of. I wonder whether the time and effort that was taken to investigate and formulate the diagnoses plus the management and multiple treatment modalities based on the diagnoses that the patient has gone through all these years are no longer valid?
CBNS and/or epicondylitis have been diagnosed in Wendy’s case as follows:
Dr Tim Watson, 2001 to 2010
Professor David Champion, 2004 to 2007,
Dr K Muirden Feb 2002,
Dr V Pascall Sept 2002,
Dr L Le Leu Aug 2004, and
Myself, from 2011 to present.
…
In August 2004, Dr Wearne (Like Dr Reiter, also from MLCOA), commented that in the early stages of Ms Ranger’s history she was diagnosed as suffering from fibromyalgia but he could not find evidence of this condition. He goes on to say that the most likely cause of onset of symptoms in her back shoulders and arms was an overuse syndrome caused by the nature of her work. He goes on to say that he can find no convincing evidence that the injury was caused by a pre-existing congenital or underlying condition and that no other factors unrelated to work might have contributed to her condition. He claimed that the injury was worked related but had now ceased. However Comcare gave historically accepted the injury and its associated relation to work based on the overall evidence.
3.
Physiotherapy:
As I do not agree with Dr Reiter’s current diagnosis of my patient, (this injury was caused by her employment, it has been well documented and accepted by Comcare since 2001), I am also unable to agree with her opinion on physiotherapy…

On 23 January 2015 a Comcare delegate wrote to Dr Reiter asking that she provide a further report in response to the following question:
1. In medical reports, which were provided to you prior to your assessment of Ms Ranger, Rheumatologist Dr Muirden diagnosed Ms Ranger with cervicobrachial syndrome and lateral epicondylitis (bilateral) (report dated 25 February 2002). This diagnosis was also supported by General Practitioner Dr Watson, and Occupational Physician Dr Virginia Pascall in her report dated 10 September 2002.
In your report dated 22 December 2014, you have reported that Ms Ranger presently suffers from Fibromyalgia, and you have not diagnosed ‘cervicobrachial regional pain syndrome and lateral epicondylitis (bilateral)’.
Please explain why you believe Ms Ranger presently suffers from Fibromyalgia, which is not a condition related to her employment, but does not presently suffer from work-related cervico-brachial syndrome (diffuse) and lateral epicondylitis (bilateral).
Please explain your opinion with reference to clinical signs and symptoms to support your conclusion.
On 12 February 2015 Dr Reiter responded to Comcare’s request, stating:
Dr Muirden, a rheumatologist diagnosed Ms Ranger with cervicobrachial syndrome and lateral epicondylitis bilateral in 2002, which is 13 years ago. Her condition may have changed and, it is now no longer due to cervicobrachial syndrome.
More than likely, Ms Ranger had a regional pain syndrome affecting both of her upper limbs and her upper torso, which was labelled as “cervicobrachial syndrome”. In my opinion, given the diffuse nature of her pain and the tender trigger points of the muscles in her left and right forearms, upper arms, shoulder girdle, including the scapula area, as well as her cervical spine, she more than likely had a regional pain syndrome.
According to Bennett R M in Textbook of Rheumatology (Kelley, Harris, Ruddy and Sledge – 4^th Ed) in Chapter 29 “The Fibromyalgia syndrome: Myofascial Pain and the Chronic Fatigue Syndrome”, Myofascial pain syndrome and Fibromyalgia are closely related (p.472). The diagnostic findings on examination of tender trigger points of muscles is the same in both groups, except Fibromyalgia involves the whole body and Myofascial Pain Syndrome may be limited to regional area. In the case of Ms Moretti [sic] her pain with associated tender trigger points currently affects her upper limbs and upper torso/neck area. In addition, he notes “that it is not uncommon to see a patient with a regional Myofascial Pain Syndrome evolves into the typical syndrome of widespread musculoskeletal pain – Fibromyalgia” (p.472).
In addition, if he did not consider the possible diagnosis of fibromyalgia and, therefore assess her for this condition by asking if she had pain affecting her chest, upper and lower back, as well as her lower limbs it may be missed. Also, if she was not examined for this condition, it could again be missed.
She now has the classic signs and symptoms of fibromyalgia with diffuse reports of pain throughout her upper limbs, chest, her upper and lower back, as well as her lower limbs.
Therefore, she meets the criteria as per all rheumatological textbooks, with tender trigger points in all her muscle groups of her upper limbs, lower limbs, chest, as well as her upper and lower back. There is no doubt, in my opinion that she clinically now has fibromyalgia.
Again, I reiterate the findings of Frederick Wolfe et al, one of the world’s leading authorities on Fibromyalgia, in a recently published article in The Journal of Rheumatology, September 1, 2014 vol.41 no. 9 1737 – 1745, titled “Fibromyalgia and Physical Trauma: The concepts we invent”, indicating that Fibromyalgia is NOT a work-related condition.
On 17 February 2015 a Comcare review officer made a determination revoking the determination of 21 November 2014 which accepted liability for gardening services.
On 2 March 2015 Dr Reiter provided a fresh copy of her report of 2 February 2015 substituting the incorrect name of Ms Moretti with that of Ms Ranger.
On 2 March 2015 a Comcare delegate wrote to Ms Ranger advising of an intention to consider ceasing liability on the basis that her medical condition was no longer employment related. The delegate set out a history of medical assessments and support provided to Ms Ranger, her present needs and the delegate’s preference for Dr Reiter’s recent opinion over that of Dr Ismail. Ms Ranger was advised that she had the opportunity to present further medical evidence by 3 April 2015, after which the delegate would make a determination.
On 3 March 2015 Ms Ranger applied to the Tribunal for review of Comcare’s decision to cease liability for household and gardening services (2015/0978).
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. Sweeping
b. Mopping
c. Vacuuming
21 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 assistance
26 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 areas
b.    Mopping the wet areas
c.    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.
Ms Ranger’s statement ended with:
31 My daily activities are greatly restricted, I cannot sit through a movie, or a dinner at a restaurant. I have some friends who visit me throughout the week, but the majority of my time is spent completing the aforementioned small tasks at spaced intervals through the week. I spend a lot of time resting at home, reading and watching television to recover from the stress placed on my body by the completion of these activities.
In her oral evidence, Ms Ranger was cross-examined about the medical practitioners she attended. Asked why she went to see Professor Cohen, whose reports are set out below, Ms Ranger said that she had previously seen Dr Champion who was also at the same pain clinic but had now retired. Ms Ranger said that the type of pain she experiences now is in the same areas as previously but the intensity can vary from day to day. Asked about the various medical practitioners she saw over the years, Ms Ranger could remember some appointments and not others. Ms Ranger said that unless she is poked or prodded she doesn’t usually have pain below the elbow level in her arms. It was suggested to Ms Ranger that Dr Reiter’s notes of the consultation were somewhat different to her recollections now, particularly in relation to pain in her legs. Ms Ranger said that she could not recall saying that but speculated that it may have been a problem on the day she saw Dr Reiter.
Asked about pain in the base of her spine, Ms Ranger said that she possibly did have some pain on the day she saw Dr Reiter but it was not usually a problem. She denied having any pain around her knees or inside the knees. Asked about pain on the inside of her elbow, Ms Ranger said the pain was on the outside not the inside. Ms Ranger said that Professor Cohen had examined her upper body. Ms Ranger could not recall the exact details of the examination and how much pressure was exerted. There was further discussion about the level of pressure and its painful impact.
Professor Milton Cohen, who holds the degree of Doctor of Medicine, describes himself as a Specialist Pain Medicine Physician and Rheumatologist and Conjoint Professor at the University of New South Wales. Professor Cohen examined Ms Ranger on 25 March 2015 and prepared reports dated 26 March 2015, 31 July 2015 and 19 January 2016. In his reports and in his curriculum vitae, he referred to articles he had written or co-written concerning fibromyalgia, pain medicine and related matters. His publications, as at January 2016, include 22 book chapters and 99 articles in peer-reviewed journals as well as numerous oral presentations in various forums.
In his first report dated 26 March 2015 addressed to Dr Ismail, Dr Cohen described Ms Ranger’s history, symptoms and treatment. He noted that Ms Ranger had been under the care of his colleague, Associate Professor Champion, who had been seeing her until her retirement in 2005. He stated, amongst other things, that:
…
The predicament presented by Ms Ranger is unfortunate. She is only 51 years old and has been out of the workforce for a decade. She is significantly disabled by persistent cervicobrachial pain syndrome which has features suggestive of central sensitisation of nociception. On this occasion I did not enter into a more in-depth assessment of the stressors that may have occurred over Ms Ranger’s life.
What is disappointing is the persistence of these problems over such a time, despite their variable nature. The inconsistent unpredictable nature of her problem is also had to understand. In this context I note the ongoing use of passive modalities of physiotherapy which really cannot be justified.
…
On balance, considering the tribulations she went through a decade ago, I consider that it is not unreasonable for Ms Ranger to continue with the current medications… but I see no indication at all for her to continue to have physiotherapy. She knows what to do, how to do it, and provided she paces herself at that there should be no problem.
One reason for this consultation according to Ms Ranger was to ascertain if there are any “new treatments” in this area. I have to say that there are none but the main insights over the last decade include the role of past stressors, somatic, psychological and environmental, in maintaining central sensitisation of nociception on the one hand and emotional and physical deconditioning on the other. I suspect Ms Ranger is caught in this cycle and egress from it would appear to be very difficult.
I would encourage her to pace herself optimally to pursue activities that are associated with pleasure and that she not increase medication.
…
Professor Cohen’s second report dated 31 July 2015 was prepared at the request of Ms Ranger’s solicitor. He summarised the content of his earlier report and provided responses to the solicitor’s questions as follows:
….
Responses to your questions
Prognosis
I suspect that Ms Ranger’s condition has stabilised: she is caught in a “vicious cycle” and egress from it would appear to be very difficult
Fitness for work
It follows that Ms Ranger is not fit for work.
Need for home help
The marked variability of Ms Ranger’s complaints renders it difficult for me to provide an opinion on the basis of one consultation only.
Comments on the reports of Dr Loretta Reiter dated 22 February 2014 and 2 March 2015
There are two sets of responses: those concerning “diagnostic labelling” of Ms Ranger’s condition; and those concerning her capacity.
The question of diagnostic labelling of regional pain syndromes remains vexed. The pseudodiagnosis “fibromyalgia” is clinical shorthand for “chronic widespread pain not clearly attributable to an underlying disease or damage process” and gives no insight into putative mechanisms, in contrast to the more operational label, as appended by Dr Champion on page 1 of her report dated 17 March 2004 of “work-related cervicothoracic and bilateral upper pain syndrome…implying considerable sensitisation of nociception”
The main implication of the label “fibromyalgia”, as attached by Dr Reiter, is that it is proposed as a “constitutional” condition, by which it is implied that her symptoms would have developed anyway, irrespective of any triggering factors, work-related or otherwise. This is of course strictly unknowable, as it is not possible to state confidently that the temporal and ergonomic relationship between Ms Ranger’s work tasks and the development of clinical problems was not also causal (vide Dr Champion’s letters cited above). The chronic pain condition to which “fibromyalgia” refers is characterised by altered function of the nociceptive (“pain-signalling”) apparatus and is the complex end-product of a number of factors – somatic, psychological and social – but it is not an intrinsic “disease”.
Professor Cohen then commented on Dr Reiter’s report dated 22 February 2014 stating that he agreed with Dr Reiter about Ms Ranger’s prognosis, treatment, capacity to work but disagreed with Dr Reiter’s opinion of the causation of Ms Ranger’s pain condition.
On 19 January 2016 Professor Cohen provided a further report to Ms Ranger’s solicitors at their request. He stated that:
Matters arising out of my earlier report
In that report I argued that fibromyalgia is a non-label… It follows that I do not accept Dr Reiter’s diagnosis.
Therefore:
(i) Where I wrote that I agreed with Dr Reiter’s assessment of prognosis… I was referring to the question put to her, viz “What is the prognosis for Ms Ranger’s current condition?” That question is in itself leading, as it should have been put as, ”What is the prognosis for Ms Ranger in her current condition?” My response to that question was (and is) “poor”.
(ii) Where I wrote that I agreed with Dr Reiter’s opinion regarding medication… I was responding to the question put to her, viz, “Whether in your opinion all medications are reasonable medical treatment for her condition” (emphasis added).
I confirm therefore that I agree with your interpretation of those responses of mine.
Academic support
Dr Reiter refers to Chapter 29 in Textbook of Rheumatology 4E, in which by implication ‘fibromyalgia”, “myofascial pain syndrome” (and “chronic fatigue syndrome”) are conflated. It is not clear why Dr Reiter introduces “myofascial pain syndrome” and its “trigger points” into this discussion. In fact, to the extent that they can be defined at all, that and “fibromyalgia” are defined quite differently. To dispose of “myofascial pain syndrome”, I refer you to the following paper: Quintner JL, Bove GM, Cohen ML. A critical evaluation of the trigger point phenomenon. Rheumatology 2015; 54:392-399.
The abstract of that paper reads:
The theory of myofascial pain syndrome (MPS) caused by trigger points (TrPs) seeks to explain the phenomena of muscle pain and tenderness in the absence of evidence for local nociception. Although it lacks external validity, many practitioners have uncritically accepted the diagnosis of MPS and its system of treatment. Furthermore, rheumatologist have implicated TrPs in the pathogenesis of chronic widespread pain (FM syndrome). We have critically examined the evidence for the existence of myofascial TrPs as putative pathological entities and for the vicious cycles that are said to maintain them. We find that both are inventions that have no scientific basis, whether from experimental approaches that inter-rogate the suspect tissue or empirical approaches that assess the outcome of treatments predicated on presumed pathology. Therefore the theory of MPS caused by TrPs has been refuted. This is not to deny the existence of the clinical phenomena themselves, for which scientifically sound and logically plausible explanations based on known neurophysiological phenomena can be advanced. [Emphasis added]
Any textbook chapter that fails to acknowledge the fundamental errors that have been made in the “myofascial pain” construct must be read with much circumspection.
With respect to the comments attributed to the article by Wolfe et al (Journal of Rheumatology 2014;41: 1737-1745) to which Dr Reiter also refers, I will quote from page 1741 of that article:
THE OUTCOME: DEFINING the FM IS PROBLEMATIC
I.According to ACR criteria, FM is diagnosed when certain levels of severity variables are exceeded and present for at least 3 months. The 1990 criteria require at least 11 tender points and CWP: the 2010 criteria require certain (high) levels of FM symptoms and pain. But many authors provide exceptions to the tender point criterion. Yunus writes of the 1990 criteria,”… one does not need 11 tender points to make a diagnosis of FMS the clinical or patient care purposes. If a patient has the characteristic symptoms of FMS and has as few as 5 or 6 TPs, they may still be diagnosed with FMS.” Despite published criteria, primary care physicians often misdiagnose FM in clinical practice, and diagnosis may depend on the skill or beliefs of the physician. If FM is dependent on satisfying criteria for proper diagnosis, improvement in symptoms can result in not meeting criteria. Even FM patients that were diagnosed using ACR criteria may be misclassified in as many as 25% of cases when physicians fail to realize that the patient no longer satisfies criteria.
In this context – of the diagnosis of “fibromyalgia” – I would draw your attention to another article by the same author, “What is fibromyalgia, how is it diagnosed and what does it really mean?” in Arthritis Care and Research, accepted October 2013. [doi: 10.1002/acr.22207, which includes the following:
Whether we call it fibromyalgia or characterise it as a physical symptom or bodily distress disorder, what we have actually done is to take a cloud of different symptoms and symptom severity, including pain symptoms, and organise it into convenient and useful syndromes – but not into discrete diseases or distinctly separate syndromes. Studies using fMRI and similar tools that purport to give insights about fibromyalgia, may be tapping into the wider domain of functional and psychological disorders. Central sensitization, hailed a as a biological marker of fibromyalgia, turns out to be found in almost all painful conditions. Claims that fibromyalgia causes pain or neurobiological abnormalities need to be examined carefully so that cause and effect to disentangle, and that causes not confuse with mechanism. [Emphasis added]
Most fibromyalgia patients meet criteria for other functional somatic syndromes and psychological disorders, and we will find overlaps and comorbidity related to shared genetic and environmental factors. The distress fibromyalgia symptoms is not dichotomous, but varies in severity, and is found in almost all pain-related disorders. Knowledge of the broad quantity of polysymptomatic distress are over its entire severity spectrum – from mild to severe – enlightens patient care and provides a mechanism for assessment and understanding the can be more meaningful and effective than just casting about for a specific diagnosis.
It should be clear from these two examples alone that the diagnosis of “fibromyalgia” is fundamentally unsound. Indeed we pointed this out more than 20 years ago: Cohen ML, Quintner JL. Fibromyalgia syndrome, a problem of tautology. The Lancet 1993: 342:904-908.
It follows that, in the absence of known courses for a symptom complex, the diagnosis of which presents major clinical (and indeed other) problems, it cannot be asserted, as does Dr Reiter, that it is “…NOT a work-related condition”. In this respect I would refer you again to the extract from my earlier report quoted above.
Ms Ranger’s predicament is marked at the biomedical level by clinical features suggesting enhanced nociception – that is, a change in function – in the absence of disease. Her predicament, about the existence of which there should be no dispute, is subject to the limitations of language in this area of medicine which in turn reflects concepts that are revolving. However there is no evidence to suggest that the symptom complex labelled as “fibromyalgia” is “constitutional” as asserted by Dr Reiter on page 4 of her report dated 22 December 2014.

Professor Cohen provided a list of selected publications on fibromyalgia to which he had contributed. The Tribunal was provided with copies of the articles cited in Professor Cohen’s report above. The Tribunal was also provided with copies of the articles cited in Dr Reiter’s reports.
In his oral evidence taken by telephone, Professor Cohen stated that both cervicobrachial syndrome and fibromyalgia were identifying labels for pain, rather than providing an analysis of the cause of the pain. He reiterated his view that fibromyalgia is not a constitutional condition. Under cross-examination, Professor Cohen conceded that he did not ask about the exact nature of Ms Ranger’s employment but had relied on the earlier reports about that work. Professor Cohen conceded that the debate about fibromyalgia is still ongoing and that he belongs to the school of thought that does not accept that fibromyalgia exists. He agreed that his view differed from the US College of Rheumatology and the Wolfe articles.
Dr Reiter gave oral evidence. She stated that she had worked as a rheumatologist for some 20 years. She had examined Ms Ranger on one occasion in December 2014. She stated she disagreed with Professor Cohen who did not like certain labels and he was the only rheumatologist she knew who did not follow the usual guidelines and descriptions. Dr Reiter confirmed her view that there was no evidence that trauma, including that in the workplace, precipitates the condition of fibromyalgia. Dr Reiter also confirmed that she had examined Ms Ranger’s upper and lower body in determining what the sources of pain were.
Dr Reiter said that there is no evidence to support that sitting at a computer using a mouse would result in widespread pain. Dr Reiter said that the causes of fibromyalgia are not known, although there can be certain personality types who are vulnerable. However, Dr Reiter was sure the current evidence shows that it is not related to the type of work undertaken by Ms Ranger. Asked about the temporal link with Ms Ranger’s symptoms, Dr Reiter pointed out that if there was a temporal connection the symptom should have gone away rather than persisted over the next decade or more.
Submissions
Mr Alan Anforth, counsel for Ms Ranger, submitted that Ms Ranger suffers from an injury simpliciter and not a disease, citing a number of cases supporting such a proposition. He submitted that it is sufficient that the injury arose out of the employment (the causal test) or occurred in the course of the employment (the temporal test). He cited the causal test which was enunciated in Roncevich v Repatriation Commission (2005) 222 CLR 115. In that case, the High Court of Australia, considering similar provisions in Veterans’ entitlements legislation, said that injuries arise out of the employment if they occur in the course of something the employee is required or expected to do to carry out the actual duties. The connection needs to be a causal one and not merely a temporal one. Mr Anforth also pointed out that the injury does not have to arise out of a single workplace incident and cited a number of relevant authorities.
In a written submission, amplified by his oral comments, Mr Anforth submitted that:
…
7. One of the common issues which arises in proceedings is the practice of respondents identifying the “injury” or “disease” with the particular diagnosis provided by the treating medical practitioner. The “injury” is the resultant effect of an incident or ailment upon the employee’s body (Canute v Comcare (2006) 226 CLR 535). The diagnosis is just the best guess of the aetiology of the injury and may change over time as more relevant information comes to the attention of the medical practitioners. The diagnosis is not definitive of the injury…
8. The same principles for assessing causation apply to both “injuries” and “diseases”, albeit the degree of causation required may vary… The fact that the work nexus does not have to be the proximate cause of the injury means that liability can be established where there is a multi-link chain of causation leading from the work nexus to the injury.
9. One of the common problems beset the assessment of causation in SRCA claims is the difference between the standard of proof required by medical scientists to establish causation and that required by decision-makers under the Act. Medical scientists will generally require proof of causation to the extent of one degree of statistical deviation (ie 95% satisfaction), below which the posited causation is said to be possible but not probable. On the other hand, decision-makers under the Act are only required to be satisfied that it is more likely than not that the work nexus played a causation role in the injury. This point was made clearly by the NSW Court of Appeal in EMI (Australia) Ltd v Bes (1970):
But if medical science is prepared to say that it is a possible view, then, in my opinion the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably years, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try. (at [242])
Mr Anforth contended that the diagnosis of fibromyalgia is only a tag to describe a group of symptoms. He submitted that the diagnosis does not purport to say anything about the causation issue that is before the Tribunal. He stated that even if Ms Ranger does not satisfy a particular checklist of symptoms, it does not mean that she is not suffering an injury.
Mr Anforth went on to contrast the opinions of Dr Reiter and Professor Cohen stating that there is not much difference between the two competing diagnoses except for Dr Reiter maintaining that a diagnosis of fibromyalgia leads to a conclusion that the condition is constitutional and would have developed no matter what Ms Ranger was doing. He noted that Professor Cohen testified that there were studies which demonstrated a correlation between repetitious clerical activities and the kind of pain developed by Ms Ranger. Mr Anforth contrasted the academic qualifications of Professor Cohen and Dr Reiter.
Mr Anforth suggested it is open to the Tribunal, on the evidence before it, to find that the repetitious work probably caused to some degree the onset of the pain now experienced by Ms Ranger. He submitted that the work does not have to have been the sole or dominant factor and that it may be that the experience of pain over time has also left its mark on Ms Ranger’s physical and mental state.
Mr John Wallace, counsel for Comcare, disagreed with some of Mr Anforth’s submissions, particularly some of his negative comments about Dr Reiter’s conclusions. Mr Wallace agreed that there was no dispute that Ms Ranger suffered from an ailment. However, he disagreed that her current condition is work-related.
Mr Wallace cited Seltsam Pty Ltd v McNeill [2006] NSWCA 158 as being a case that showed that epidemiological evidence can be useful. He also said that Dr Reiter expressed the view that Ms Ranger’s condition was due to constitutional factors until or unless there is evidence to the contrary.
Mr Wallace suggested that Professor Cohen did not point to the evidence that was the basis for his comment that Ms Ranger …is significantly disabled by persistent cervicobrachial pain syndrome which has features suggestive of central sensitisation of nociception. Mr Wallace pointed to the early medical reports which diagnosed fibromyalgia and described the various conclusions that other medical professionals had arrived at in identifying the nature of Ms Ranger’s condition. He also submitted that Professor Cohen’s first report was not a medico-legal report.
Mr Wallace submitted that while Comcare accepted in 2002 liability for cervicobrachial pain syndrome and bilateral lateral epicondylitis, and determined in 2007 that Ms Ranger suffered a permanent impairment as a result of those conditions, that did not mean that the diagnosis and condition could not change. Mr Wallace cited the decision of the Full Court of the Federal Court in Telstra Corporation Limited v Hannaford (2006) 151 FCR 253, 90 ALD 263 as standing for the proposition that it was open to the Tribunal, where later evidence showed that an employee who was originally found to suffer from a particular medical condition and obtained compensation for that condition did not actually suffer from it, to cease liability. The original diagnosis was not permanently enshrined.
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.
The Tribunal accepts that conditions can be misdiagnosed and/or be impacted by degenerative factors such that the nature of the condition changes over time. The Tribunal notes that Comcare accepted that Ms Ranger suffered from cervicobrachial regional pain syndrome with lateral epicondylitis in 2001 and again in 2007 when it determined that she was permanently impaired to the level of 27 per cent as a result of that condition.
Both parties agree that Ms Ranger is unfit for work and is unable to undertake certain tasks. The occupational therapist, Mr Walsh, recommended that Ms Ranger should be given some gardening assistance and that household help be reduced but still provided. This was partly due to Ms Ranger’s adult daughter living with her at that time and recommending, quite appropriately, that the daughter should contribute to the household tasks. One of the concerns was the use of the main bathroom, although Ms Ranger stated that she uses the bath in that bathroom as the one she regularly uses does not have one. The evidence was that Ms Ranger’s daughter works full-time and her travels to and from work take many hours per week, and that she has other commitments.
The Comcare review officer cancelled all of the assistance that had been given to Ms Ranger on the basis of Dr Reiter’s diagnosis that Ms Ranger suffered from fibromyalgia which was described as a constitutional condition. A later decision was made that Ms Ranger was no longer entitled to medical reimbursements and other entitlements for the same reason, namely Dr Reiter’s diagnosis.
The Tribunal prefers the diagnosis put forward by Professor Cohen, a noted academic who has written extensively on the topic of pain syndromes and also has practical involvement in being part of a pain clinic along with colleagues. Professor Cohen’s diagnosis is that Ms Ranger continues to suffer from chronic cervicobrachial pain syndrome. Whilst he has only seen her once, Ms Ranger’s general practitioner sees her regularly and independently of, and prior to, Professor Cohen’s reports, maintained that her patient is not suffering from fibromyalgia. Dr Ismail referred Ms Ranger to Professor Cohen to obtain specialist advice. She had been seen a decade earlier by Associate Professor Champion, who has now retired, at the same pain clinic. Dr Ismail, as Ms Ranger’s treating doctor for several years, is the only one who currently deals regularly with Ms Ranger.
The Tribunal accepts Ms Ranger’s evidence of her levels of daily pain and the impact on her of certain heavier household tasks such as vacuuming and mopping. It appears that her daughter is able to assist her to some degree. The Tribunal notes that while it had written evidence from the daughter and her mother’s evidence about her daughter’s activities around the time of Comcare ceasing liability, it is unclear whether she continues to live with her mother and spend so much time out of the home. Ms Ranger had commented that she did not know how long her daughter would stay with her.
The Tribunal finds, on the balance of probabilities, that Ms Ranger continues to suffer from cervicobrachial regional pain syndrome with the onset of the condition being work-related. In relation to the ceasing of medical and other incapacity entitlements, the Tribunal also sets aside the decision to cease payments and remits the finding to Comcare for recalculation and reimbursement of any entitlements. From the comments of both Professor Cohen and Dr Reiter, it appears that physiotherapy treatments may well not be reimbursable.
The Tribunal is not entering into the ongoing debate between Professor Cohen and Dr Reiter in relation to whether fibromyalgia is an acceptable label in general terms. However, the developments in that arena will be viewed with interest.
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.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member

....................................[sgd]....................................
Associate
Dated: 30 June 2017

Dates of hearing: 22 - 23 February 2016

Counsel for the Applicant: Mr Allan Anforth

Solicitors for the Applicant: Emanuel Solicitors

Counsel for the Respondent: Mr John Wallace

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 1054

30 June 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Dates of hearing:	22 - 23 February 2016
Counsel for the Applicant:	Mr Allan Anforth
Solicitors for the Applicant:	Emanuel Solicitors
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Sparke Helmore Lawyers