Re Lewis and Comcare - [2002] AATA 197

DECISION AND REASONS FOR DECISION [2002] AATA 197

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/773

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JULIE GAY LEWIS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr M J Sassella Senior Member

Date25 March 2002
PlaceSydney

Decision      The decision under review is affirmed. The applicant is entitled to no costs from the respondent in respect of this application
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – Tribunal's power to review decision reviewed previously by Tribunal – applicant made new claim in respect of same employment events – new claim related to different diagnosis – Tribunal decided to hear new application – central sensitisation of nociception – regional fibromyalgia – pain disorder – personality disorder – arising out of or in the course of employment – aggravation to which employment made a material contribution – applicant's claim rejected by respondent – Tribunal affirmed respondent's decision

Re Julie Lewis and Comcare [2000] AATA 158
Re Wood and Comcare [1999] AATA 263
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Casarotto v Australian Postal Corporation (1989) 86 ALR 399
Comcare v Mooi (1996) 137 ALR 690
Re Polder and Comcare [2001] AATA 780
Re Bianchi and Comcare [2001] AATA 805

Safety. Rehabilitation and Compensation Act 1988, ss 4(1) "ailment", "disease". "injury", 14(1).

REASONS FOR DECISION

25 March 2002 Mr M J Sassella Senior Member

history of application

On 7 April 1998 Ms Julie Gay Lewis ("the applicant") lodged with Comcare ("the respondent") a claim for compensation (T159). She claimed in respect of central sensitisation of nociception with allodynia. She attributed it to the nature and conditions of her employment with the Department of Defence ("the Defence Department"). She had noticed its onset in 1988 and had first sought medical treatment in December 1998. It affected her back, chest and left arm.
On 27 May 1998 Ms Lewis lodged a claim in respect of alleged permanent impairment (T160). She claimed for pain in the thoracic spine, in the left side and chest, intermittent pain and pins and needles of the left arm, a burning sensation. The condition as diagnosed was "chronic post-injury back pain syndrome with major psychosocial consequences (neuropathic pain syndrome)". She was said to have a 20% whole person impairment in accordance with the Comcare Guide to the Assessment of the Degree of Permanent Impairment ( This claim appears to have been not acted on by the respondent. There has been no reviewable decision affecting it.
On 6 July 1998 a delegate of the respondent rejected the claim on the basis that:
"Ms Lewis previously submitted a claim in 1988 in relation to various back injuries sustained in the course of her employment. Her claim was accepted and she continued to receive all her entitlements until liability was ceased with effect 31 May 1995. On appeal this decision was affirmed by the Administrative Appeals Tribunal (AAT) on 13 December 1996.
"The claim which you are now seeking to lodge … appears to relate substantially to the same conditions and the same causes as those which were the subject of her original claim. … Accordingly, I am unable to accept that it is a new claim but rather that it should be considered as a further submission in relation to the original one.
"As that claim has been finalised I regret that no further action can be taken nor any further consideration be given to it. …"

The earlier decision of the Administrative Appeals Tribunal ("the tribunal") ("the earlier decision") was in matter number N1995/1181 and was handed down on 13 December 1996.
On 26 August 1998 the applicant's solicitor requested reconsideration of the delegate's rejection (T175).
On 6 November 1998 a delegate of the respondent again decided that the applicant's claim, this time clearly only the claim in T159, was invalid for the same reasons as in paragraph 3 of these reasons (T188).
On 18 February 1999 Ms Lewis personally requested reconsideration on the basis that her condition had been misdiagnosed by doctors involved in the earlier tribunal case and she had new medical evidence (T191).
reviewable decision
On 30 March 1999 a Comcare delegate issued a reviewable decision (T204) affirming the decision to reject the claim in T159. This decision affirmed the decision taken on 6 November 1998 in T188. The delegate's reasons were essentially:
"The conditions referred to in this claim are similar to those that were ultimately assessed and determined by the Administrative Appeals Tribunal in your claim for compensation lodged on 3 May 1988. Your original claim for compensation related to 'muscular strain' and liability was accepted for the injury 'muscular strain left chest wall'. Following the acceptance of liability, many medical opinions were obtained from a variety of medical practitioners in various specialities and, as a result, a decision was made that the conditions from which you suffered were not caused or materially contributed to by your employment with the Department of Defence.
"You appealed this decision to the Administrative Appeals Tribunal and the Tribunal found, on the evidence, there was no liability to pay compensation to you under any section of the Safety, Rehabilitation and Compensation Act 1988 in respect of any condition that [you] were suffering from at the time of the Tribunal hearing....
"It is considered that the conditions you are now claiming [were] adequately considered by the Administrative Appeals Tribunal during the hearing on 3 and 4 October 1996 and the decision handed down on 13 December 1996.
"Having decided that the matter has already been adequately dealt with by both Comcare and the Administrative Appeals Tribunal, I am satisfied that the conditions now being claimed have not arisen out of or in the course of your previous employment with the Department of Defence, nor has that employment contributed, to a material degree, to the causation or aggravation of those conditions."

On 24 May 1999 the applicant lodged with the tribunal an application for review (T1).
relevant legislation
The relevant legislative provisions are those that follow from the Safety, Rehabilitation and Compensation Act 1988 ("the Act"): sections 4(1) "ailment", "disease", "injury", 14(1).
"SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Interpretation
4.(1) In this Act, unlessthe contrary intention appears:
…
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. …
…
Compensation for injuries
14.(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

background

Ms Lewis was born on 27 April 1956 (T1, T4). Dr N W McGill recorded (T146/334) the following education and work history.
"She left school in third form and then worked at Coles for a couple of months before working for National Mutual as a clerk for less than one year. She didn't like office work and being around people and she then moved to various jobs in factories. She could not recall the details but I gather that she maintained each position for a short period of time. She did some bar work and worked in shops. When her daughter was born 18 years ago she was out of the workforce for two to four years. She then did some part-time work. When her daughter was aged five years she commenced as a civilian on contract working for the Army. That continued between about 1983 and 1987. During the same period she did some part time work in a hotel at Manly. In about 1987 she commenced work as a cleaner with the Air Force. She did not like that job and then transferred to gardening in the same year. Her job was to perform mowing, concreting and whipper snipping. She continued to work until July, 1988 when she ceased. At either the end of 1988 or in 1999 she worked for Regal Shirts in the canteen for about four months. She was a cook. She was dismissed from that position. She subsequently worked for Better Brakes as a delivery driver and performed banking, reports and bookkeeping. She was in that position for about four months and she was dismissed after she was involved in a motor vehicle accident which was her fault. She has not worked since about 1990."

She told a medical board in 1990 that her hobbies were "anything physical and outdoors" such as fishing, scuba diving, sailing and riding her motor cycle (T50, T51).
Ms Lewis's earlier claims history is necessary as background. Much of this was relevant to and covered in the earlier decision.

On 6 July 1988 Ms Lewis lodged a compensation claim for "muscular strain" (T4). It had had an onset over the months from December 1987. At the time she was working on a tip truck onto which she emptied tins of garbage.
On 2 November 1988 the claim was admitted and it was stated to be for "muscular strain left chest wall" (T18).
On 31 May 1995 Comcare ceased liability for compensation as of that date on the basis that she had only a psychological condition for which Comcare was not liable (T135).
On 3 July 1995 the applicant requested reconsideration of the decision in T135 (T137).
On 6 July 1995 Comcare affirmed the decision on the basis that there was an absence of physical injuries to explain Ms Lewis's symptoms (T138).
On 20 July 1995, having received from Ms Lewis a report from a pain doctor, Dr Hoolahan, Comcare reaffirmed its decision of 6 July 1995 (T139).
On 15 August 1995 Ms Lewis appealed to the tribunal (T140).
On 13 December 1996 the tribunal affirmed Comcare's decision (T149). Amongst other things the tribunal said by way of summary that it found that:
"there was a soft tissue injury in 1988 arising from particular activities in the workplace; that this resolved; that an underlying condition of personality disorder pre-existed the injury; and that manifestations of this condition existed prior to the injury, during the injury period and subsequently and that no evidence has been led which would allow a finding of aggravation of this pre-existing condition to have occurred during the time of the injury or for such an aggravation to have caused incapacity of a continuing nature" (paragraph 35).

On 30 January 1989 her employment with the air force was annulled (T22).
interlocutory proceeding
On 28 February 2000 Senior Member Allen heard an application by the respondent that, given the earlier decision, the tribunal ought not to entertain these proceedings. In the decision, Re Julie Lewis and Comcare [2000] AATA 158, Senior Member Allen decided that the better course was to decline the respondent's invitation to dismiss the applicant's application for review. He said, "Whereas I have strong doubts as to the Applicant's claim, it seems to me preferable that this decision as to merits should be made upon a full hearing of the matter rather than in interlocutory proceedings" (paragraph 20). Senior Member Allen summarised the intentions of the applicant's representatives in this fresh application:
"8.       It would appear that the Applicant and her new legal advisers did not accept the decision of the Tribunal, although no appeal was lodged against the decision with the Federal Court. The documents prepared for the Tribunal in this matter... contain several reports from Dr G. David Champion, Rheumatologist of St Vincent's Clinic, addressed to the Applicant's then solicitors, who were not the solicitors who acted for her in her first application to the AAT, nor were they the solicitors who lodged this Application for Review.
"9.       Document T155 is a report by Dr G. D. Champion to the Applicant's then solicitors dated 12 January 1998.... In that report, which is of nine pages, Dr G. D. Champion reviewed various medical reports brought into existence as a result of the Applicant's claim and also the Tribunal's reasons for decision (part of which he categorises as 'gobble de gook'). He opined that the Applicant suffered a 'sensitised nociception' as a result of mechanical strain suffered by the Applicant in 1988.
"10.     As stated above, under cover of letter dated 7 April 1998, the Applicant, by a third firm of solicitors (who are not her current solicitors), made a further claim for compensation alleging injury in 1988. That claim picks up Dr G. D. Champion's diagnosis of 'sensitised nociception'".

This tribunal agrees with Senior Member Allen that it was appropriate to deal with this new application via a full merits review. Ms Adamson for the respondent submitted to this tribunal that there is no proper discretionary basis in this case for permitting the applicant to relitigate issues decided against her in the earlier hearing. At the hearing on 15 March 2001 Ms Adamson said as follows:
"But it may be useful to go to the matters which appear to have influenced Senior Member Allan and they appear to be two-fold. One, is that Dr G. David Champion first saw the Applicant after the hearing before Dr Campbell and he came to a different view than one which had been expressed by other doctors who had seen the Applicant and therefore the - if I could refer to them generally as Dr Champion's theories - were not ventilated in the earlier hearing.
"... A further complicating factor is that the applicant was involved in a motor vehicle accident on 25 March 1997.
"And in view of those two matters Senior Member Allen said:
"I believe the better course is to decline the invitation to dismiss the application for review. It seems to me preferable that this decision as to merits should be made... (reads)... proceedings.
"Now, in my respectful submission, having regard to what Senior Member Allen has said, if at the end of the day having looked at the evidence you're satisfied that those two matters are not have sufficient significance to displace Dr Campbell's decision, that would be open to you simply to say that and to dismiss the application for review. And that is the respondent's primary submission." (Transcript, P-50 – P-51)

The force of this submission will be addressed below.
hearing and appearances
The tribunal convened a hearing in this matter in Sydney on 8 and 9 February 2001 and on 15 March 2001. Mr L Grey of counsel represented the applicant and Ms C Adamson of counsel represented Comcare.
The tribunal had access to a considerable volume of documentary evidence. It was recognised through the following exhibit numbers.

Exhibit TD1 – Section 37 Statement and associated documents (T1-T205) provided by the respondent, 11 June 1999.
Exhibit A1 – Report by Dr C A C Canaris, psychiatrist, 2 May 2000.
Exhibit A2 – Report by Ms R Tait, psychologist, 13 November 2000.
Exhibit A3 – Curriculum vitae of Dr G D Champion, rheumatologist.
Exhibit A4 – Research paper, "Abnormal brain chemistry in chronic back pain".
Exhibit A5 – Editorial by Dr G D Champion, "Emerging influences of pain medicine in clinical reasoning".
Exhibit R1 – Report by Dr N W McGill, rheumatologist, 5 June 2000.
Exhibit R2 – Report by Dr J Donsworth, psychiatrist, 18 October 2000.
Exhibit R3 – Report by Dr R G Beran, neurologist, 24 November 1989.
Exhibit R4 – Notes from file at Western Metropolitan Health Region dated 3 March 1992.
Exhibit R5 – Letter dated 31 October 1995 from Dr J Taylor, psychiatrist, to Dr D I Gibson, general practitioner.
Exhibit R6 – Report by Dr J Champion, psychiatrist, 21 August 2000.
Exhibit R7 – Australian Medical association Code of Ethics and Guidelines for Doctors Acting as Expert Medical Witnesses.
Exhibit R8 – Dr Gibson's clinical notes.
Exhibit R9 – Ms V Garner's clinical notes, 24 March 1997.
Exhibit R10 – Letter dated 12 June 1997 from CIC Insurance to Dr Gibson.
Exhibit R11 – Report by Dr Gibson, 15 July 1997.
Exhibit R12 – Report by Dr R Sundaraj, anaesthetist, 13 August 1997.
Exhibit R13 – Referral by Ms Garner to Dr G D Champion, 16 September 1997.
Exhibit R14 – Ms Garner's clinical notes, 22 September 1997.
Exhibit R15 – Undated letter from Ms Graham to Dr G D Champion.
Exhibit R16 – Ms Garner's clinical notes, 11 November 1997.
Exhibit R17 – Ms F Robards' clinical notes, 11 February 1998.
Exhibit R18 - Ms Robards' clinical notes, 25 February 1998.
Exhibit R19 – Ms Robards' clinical notes, 25 March 1998.
Exhibit R20 – Report by Dr K E Khor, pain management specialist, 29 December 1998.
Exhibit R21 – Report by Dr Khor, 3 February 1999.
Exhibit R22 – Report by Dr G D Champion, 9 March 1999.
Exhibit R23 – Report by Dr G D Champion, 12 July 1999.
Exhibit R24 – Report by I W Webster, Professor of Public Health, 20 July 1999.
Exhibit R25 – Report by Dr G D Champion, 7 September 1999.
Exhibit R26 - Report by Professor Webster, 21 September 1999.
Exhibit R27 – Report by Professor Webster, 29 September 1999.
Exhibit R28 – Report by Dr R D Motum, psychiatrist, 22 October 1999.
Exhibit R29 – Clinical notes from Liverpool Health Service, 9 March 2000.
Exhibit R30 – Report by Dr Gibson, 11 April 2000.
Exhibit R31 – Dr Lau's clinical notes.
Exhibit R32 – Report by Dr McGill, 24 February 2001.
Exhibit R33 – Transcript of tribunal hearing in N1995/1181.

overview of the case

This tribunal intends to do very little rehashing of what occurred before the tribunal in its earlier hearing. It should suffice to record that this tribunal has read the earlier decision and the evidence on which it based its decision. This tribunal is satisfied that, on the evidence as then available in the earlier matter, the current tribunal would have made the same decision.
The approach to be adopted is consistent with what the applicant's representative proposed to Senior Member Allen at the interlocutory hearing. At page P-4 of the transcript of the jurisdiction hearing held on 28 February 2000 Mr Grey said:
"I have instructions that in fact the applicant in this case does not seek to reagitate the effect of the decision [in N1995/1181] which was that for a period from the time when liability was terminated, that's May 1995 up until the day of the decision made by [the tribunal], there's no liability. She doesn't seek to assert liability during that period. In fact on my instructions the concern, primarily, is to try and get herself some coverage for medical treatment for the problems that she still has."
Later, at the close of the present proceedings, Mr Grey reiterated this. He said on 15 March 2001, "I told the Tribunal then, and I can repeat it now, that we had instructions that we wouldn't necessarily press any – that there be any revisitation of the period up until Dr Campbell's decision. In other words, I'm not attempting to get benefits prior to that date that Dr Campbell denied to her, we're concerned with the period since that decision" (transcript, P-43).

There can be no doubt that Ms Lewis has found an enthusiastic supporter in Dr G D Champion. Within the tribunal's Section 37 Statement there are no less than 11 reports written in support of the applicant between January 1997 and May 1999. In addition there are three amongst the exhibits (ex R22, R23 and R25).
Dr G D Champion's thesis explaining Ms Lewis's injury and its relationship to her work in 1987-1988 for the Department of Defence is best explained in his report dated 12 January 1997 (T150/375-376). He says:
"It is reasonable to conclude that Ms Lewis' previous personality and general life circumstances created a degree of vulnerability in respect of personality disorder and psychosocial consequences of any injury. There was a minor predisposing incident in 1983 and perhaps 1984, but the Court [sic] did not make much of that. There was general acceptance by doctors of the time and subsequently, and by the Tribunal, that a significant mechanical strain had occurred in the course of the garbage activities whilst employed by the Department of Defence in 1988. It was reported that in those early days (1988-90) her personality and demeanour were quite reasonable, and that point was evaluated by Ms Eva Lowy. What happened subsequently was persistence of chronic pain at a relatively high level which was not only incapacitating in regard to work and functioning for activities of daily living, but which progressively caused disturbance of mood, demeanour, personality and her psychosocial circumstances generally. It is very easy to trace the whole demoralising psychosocial circumstances throughout these reports and it makes very interesting reading. As her personality deteriorated and the psychosocial problems concurrently increased, the medical focus beginning with Dr Marsden and continuing thereafter was partly distracted from any organic basis by the rather impressive psychological abnormalities. In the absence of discernible pathology that one could clearly demonstrate, the medical opinions stated or inferred that the psychological processes were the dominant reason for ongoing problems. There was a widely stated view, false in my experience, belief and understanding, that the kind of mechanical strain she experienced in 1988 would necessarily resolve. The reality is otherwise. Such disorders, even when the underlying mechanism and anatomical origin may be imprecise, very frequently become chronic and can become life long. It is not only psychosocial factors which determine such persistence, but the very important process of sensitised nociception.
"The concept of sensitised nociception is relatively new. As a post injury disorder it began in approximately 1990 at least in respect of central sensitisation of nociception. After injury, the pain nerve endings (nociceptors) in the injured region become sensitised and their connecting nerve cells (neurons) in the spinal cord and higher in the central nervous system also become sensitised and will fire impulses leading to the experience of pain on minor stimuli or no stimuli at all. One of the consequences of central sensitisation of nociception is that there is a particular pattern of superficial and/or deep tenderness in tissue which is not primarily pathological and which has special characteristics referred to as secondary allodynia/hyperalgesia. Ms Lewis exhibits those features in large measure and it is this process of central sensitisation (of which secondary allodynia is a clinical counterpart) which accounts for the severity, nature and chronicity of the clinical problem. It is a disturbing experience having sensitised nociception with allodynia and it is usual that there are substantial secondary psychological consequences which in turn can augment the pain experience and further influence behaviour. Unfortunately, while this sensitised nociception concept is well-established, recorded in detail in extensive medical literature, it has not yet [sic] widely disseminated into general medical curricula and into the mind set of most medical practitioners."

Although Dr G D Champion appeared dogmatic in that first report, in a subsequent letter to Dr Gibson, Ms Lewis's treating doctor, he seemed less certain. On 18 October 1998 he wrote, "The precise pain generator is not all that clear and it is quite possible it is mainly a central nervous system process provoked by the initial work related injuries/mechanical stresses" (T182/450). On the following page he suggests that Ms Lewis's "disorder of personality" and associated emotions are being driven by pain. Thus, the diagnosis of personality disorder accepted by the tribunal in 1996 is not as inappropriate as Dr Champion has suggested elsewhere. Some eighteen months after writing the first report, the sensitised nociception thesis had become merely "quite possible".
Dr G D Champion's views have not commended themselves unreservedly to the tribunal over the years. Senior Member Allen said in Lewis (supra) at paragraph 16:
"I have perused the several reports prepared by Dr G. D. Champion which are in the s 37 documents. I am aware, from my own experience and from discussions with other members of this Tribunal, that Dr G. D. Champion's opinions as to the causes of alleged chronic muscular pain are not generally accepted, however, that is not to say that his opinions in this matter might not find acceptance with the Tribunal in the particular circumstances of the case. A problem with Dr G. D. Champion's opinions in this matter, as is common with many of Dr G. D. Champion's reports, is that he has allowed himself to become a protagonist for his own theories and hence the Applicant's case, and thus has not illustrated a proper scientific detachment to this Applicant consistent with the preferred role of an expert witness."

Deputy President Burns was similarly wary in Re Wood and Comcare [1999] AATA 263 where he said:
"18. The Tribunal had the advantage of carefully listening to Dr Champion during the giving of his evidence which included a robust cross-examination by Mr Watson. At the end of the day the Tribunal does not have the necessary confidence to accept as reliable the views that he proffered concerning the aetiology of and the nature of that which he diagnosed in relation to the applicant. In the Tribunal's considered opinion, as well intentioned as Dr Champion no doubt is, he lacked the necessary objectivity for his opinions to be accorded any real regard. In fact, from time to time, the Tribunal gained the distinct impression that Dr Champion was advancing a cause as distinct from considering the issues at large in a dispassionate and truly objective fashion, so essential in the giving of reliable expert testimony."

complicating factors
Motor vehicle accidents

Some time in early 1990 Ms Lewis had a motor vehicle accident while she worked as a courier for Better Brakes (T124/285).
She had another motor vehicle accident on 22 March 1997 (ex R8, Dr Gibson's clinical notes for 10 June 1997, and ex R9). Dr Gibson recorded that she was hit on the passenger side of her vehicle. She had neck pain, an injury to her right calf, and she had ongoing headaches.
She had yet another motor vehicle accident on 25 March 1998. In a file note dated 27 May 1998 (T164) a Defence Department officer records that Ms Lewis phoned on 26 May 1998. She reported that "she had a MVA on 25 March 1998 and sustained back injuries for which she now wishes to serve a claim for compensation on the Department. I informed her that it would have little chance of success, as she was no longer employed by us, and suggested that she pursue action through common law".
It is recorded in T117 that she had yet another motor vehicle accident in May 1994.
This could suggest that Ms Lewis's symptoms are attributable to causes other than her former work with the Department of Defence.
Substance abuse

Ms Lewis has a considerable substance abuse problem.

Dr G A Robbie, psychiatrist (T123/277-278) in August 1994 recorded that Ms Lewis had been in a court case to do with cannabis, although she had escaped the charges on appeal. Since her army work she had been binge drinking. She referred to a recent session where she drank beer and bourbon from 3.00 pm to 10.00 pm. She said she usually drinks at a club on various bases, daily, thrice a week, once a week. He wrote, "[S]he has been drinking for two years, and can 'sometimes have nine schooners, sometimes more'. Nine schooners is 13 drinks. I suggested this was rather too much but she said 'not for me' and thought that she was quite all right after 12 drinks 'I am into it, I've drunk too much' meaning in the past to be too affected. She also said 'I've gone off, like the other day and cancelled all this'. … She smokes 10 cigarettes a day, but stopped using cannabis 'months ago', when it was only once a week".
Dr D K Dowda, occupational physician (T145/327), in December 1995 recorded that Ms Lewis was sleeping up to 13 or 16 hours a day. She had had Pethidine injections on three occasions in 1995.
Dr N W McGill, rheumatologist (T146/333), in December 1995 recorded that she was having intermittent Pethidine and Morphine. "She stated that she receives the Pethidine and Morphine 'when I go down there and stress out and say I want one'. The Pethidine and Morphine has been supplied by Dr. Gibson her general practitioner and most or all of the injections have been given this year. … She drinks a considerable amount of alcohol and she stated that she continues to binge drink".
Dr J R Champion, psychiatrist (T148/344) in April 1996 said that in the previous four years, "when things had been bad" she had taken "pills, pot, grog". She said she had first used marijuana when aged 19 and continued using until 22. In the past four years she had used it in combination with alcohol, cigarettes and other drugs. This was to relieve her pain.
On 27 October 1997 Dr G D Champion (T152/381) recorded that "[c]urrently she [was] taking Lexitan 6 mg, from one to 'heaps' per day and she has been having Pethidine 100 mg about once or twice a week I understand. She said she wants it once a day (not on)."
Later, on 25 February 1998, Dr G D Champion (T156) wrote to Dr Gibson, who had been administering Morphine and Pethidine:
"Today I really focused on drug therapy. I note that she is taking Lexitan 6 mg averaging about 1 per day she said and uses this mainly at night to sleep. She takes Mersyndol forte 0-4 per day and this helps especially if she also lies down. Pethidine she has been having once a week or once a fortnight. She has mixed feelings about this. She understands that it is not entirely appropriate, on the other hand fears that you may decline. It will be important to avoid this in due course, but I'm not suggesting that be stopped abruptly has clearly is a fairly stable situation. I note that she continues Zoton 30 mg/day.
"Oral opiate drugs have had most unfavourable reactions it seems. I understand she had MS Contin and it made her sick. Endone made her even more sick. She is concerned about Physeptone and I suspect that that to would cause gastrointestinal upset and nausea. The best bet among opiate type analgesics is Fentanyl patches. She is quite likely to tolerate as well as she does the Pethidine, and it is a controlled regular dose with minimal gastrointestinal disturbance and very little addictive potential because of the fixed nature of the patches. Unfortunately, it is very costly and there is no insurance mechanism obvious to pay for it. However, I thought it would be worth a one-month trial of Fentanyl patches..."

On 15 April 1998 Dr G D Champion noted a good result from Fentanyl patches (T161).

On 24 September 1998 a Comcare file note contained quotes from Ms Lewis (T179/445). Amongst other things she said that she had a Morphine injection. She said she may be an alcoholic and drug addict but that she lived in Cabramatta. She said she had been drinking all night.
On 18 October 1998 Dr G D Champion (T182/451) discussed treatment via "a trial of very low dose intrathecal morphine by catheter and pump". In T189 Dr Champion wrote to pain specialist, Dr Khor, apologising for Ms Lewis's "unfortunate behaviour" when she attended his clinic in December 1998. Dr Khor had decided against the intrathecal Morphine trial and Dr Champion sought to have him review that decision.
On 12 May 1999 Dr G D Champion (T205) wrote to Dr Gibson and said, "I note for the present, you have been giving her an occasional opioid injection, and she is appreciative of that, seeking not to abuse the opportunity. I suppose that practice comes under the heading of 'harm minimisation'".
Psychologist, Ms R Tait (ex A2/2), recorded on 13 November 2000:
"She stated that she had recently moved to Coffs Harbour and that she was having Pethidine injections to help her to reduce the pain. However, she stated that the effects of the medication were not lasting."

Rheumatologist Dr N W McGill (ex R1/1) recorded on 5 June 2000 that Ms Lewis had told him that she was having only a couple of cigarettes each week, although Dr McGill said she smelt of cigarette smoke and admitted to having had a couple of cigarettes that morning. She told him that she had ceased binge drinking "years ago".
Dr J Donsworth, a psychiatrist, saw Ms Lewis on 11 October 2000 (ex R2). Dr Donsworth reported:
"Her GP in Coffs Harbour is Dr Scott. She went to Coffs Harbour Hospital asking for Pethidine and Morphine injections. She has been in the habit of getting a script for Morphine and she injects herself intramuscularly when the pain is bad.... Dr Scott has expressed a reluctance to continue prescribing the Morphine unless she has documentation supporting the need for it.
"She told me she would prefer to have Pethidine. The Morphine makes the nauseated. She has used Maxalon to control the nausea. She uses Morphine about once every three or four days. When she was living in Sydney she had to use it three times a week.
"She also takes Mersyndol Forte, about forty tablets per week, and used to be on Epilim. The other day she saw a program on TV about the Pain Clinic at RNSH and she is keen to get a drug mentioned on the program, the drug's name being Gabapentin....
"She also takes Panadeine, as many as she needs, plus sleeping tablets such as Temaze which she sometimes takes in the daytime."

By the time of the hearing in the current matter Ms Lewis told the tribunal that she now has only an occasional drink (transcript, 8 February 2001, P-50). She told her counsel that she was still having Morphine injections at a rate of from one to five injections a week (transcript, 8 February 2001, P-59).
There is thus a fairly consistent history of extreme dedication to drugs of one type or another, some being very strong and addictive, since her late teens, but notably since 1994.
respondent's position
As noted earlier, the respondent considers that the tribunal should decline to reopen the matter of the applicant's compensation entitlements in view of the earlier decision. However, the respondent presented an alternative argument. If the tribunal must consider afresh the earlier decision to cease liability, it should dismiss the current application for review for the following reasons.
Dr G D Champion's theory of sensitised nociception is not accepted as part of orthodox medicine. Ms Adamson in a written submission noted that Dr Champion appeared to concede as much in T150/375-376 where he says, "while this sensitised nociception concept is well established, recorded in detail in extensive medical literature, it has not yet [sic] widely disseminated into general medical curricula and into the mind set of most medical practitioners". There was evidence on this from Dr McGill, discussed in paragraph 72 below.
Dr Champion assumed that Ms Lewis's work on the garbage truck for the Defence Department was repetitive work. This was erroneous. This issue was raised during Ms Adamson's cross-examination of Dr Champion at pages 102-103 of the transcript for 8 February 2001. There is an exchange on those pages during which it is clear that Dr Champion did not recall what, if any, repetitive activities the applicant had to carry out. However, he then modified his evidence to state that "[t]he development of a chronic pain disorder can result from a single mechanical stress, [nociceptive] input into the spinal cord of sufficient magnitude in a biologically susceptible person but repeated, even if it's periodic, mechanical stresses of an essentially painful or potentially noxious manner can have an accumulative effect on the disordered processing within the central nervous system". Ms Adamson suggested that this reference to a cause being a single mechanical stress undermines the cohesion of Dr Champion's theory.
Dr Champion's original view (as represented in T150) was based on the absence of prior pain in the areas now complained of. Dr E C W Lau, Ms Lewis's general practitioner, on 20 September 1988 (T10) reported that on 11 November 1983 Ms Lewis had complained of "pain over the left scapular region on the medial aspect", which was diagnosed as fibrositis. On 26 March 1984 she complained of pain over the left ribs. Later, on 3 November 1997 (T153), he modified his understanding of the history to "a little problem in a similar area prior to her claim". This was discussed at the hearing (transcript, 8 February 2001, P-106) and, Ms Adamson says, it is clear from that discussion that Dr Champion never received the full history received by the tribunal. That is clearly a correct statement. Dr Champion was reliant on Ms Lewis's history.
Dr Champion's assistance was sought in a medico-legal context. However, he adopted the role of advocate for the applicant. Ms Adamson says this was "a proposition to which he acceded with alacrity". That is fair comment. He was asked, "In terms of your dealings with [Ms Lewis], do you think you have been acting as advocate for her?" (transcript, 8 February 2001, P-97). He responded, "Yes, absolutely". Ms Adamson submitted that this was without regard for the requirements that a medical expert, whether treating or non-treating, should be impartial when giving evidence. The Australian Medical Association's Code of Ethics and Guidelines for Doctors Acting as Expert Medical Witnesses (ex R7) requires expert witnesses not to be advocates for those who have secured their services. However, in fairness to Dr Champion, the tribunal notes that the Association's documents prescribe a more limited function for a treating doctor, as Dr Champion was. It seems that Ms Adamson saw Dr Champion as both a treating doctor and expert witness and considered that he had let himself down in the latter capacity. Ms Adamson itemised certain acts done by Dr Champion that she suggested compromised his independence as an expert witness. He wrote to Dr Gibson, the applicant's general practitioner, on 9 March 1999 (ex R22) stating that Ms Lewis had asked him to write to Comcare on her behalf and he was going to do that. In T200 (9 March 1999) one finds that letter. He also communicated by telephone with Ms Lewis's solicitors to see if the tribunal's earlier decision could be overturned (transcript, 8 February 2001, P-105 – P-106).
Ms Adamson wrote in her submission:
"The referral to Dr G. David Champion came from Dr Carruthers, whom the applicant saw only once, and solely for the purpose of the referral … . Dr Champion agrees that he did not have any further involvement with Dr Carruthers after the referral (tr. 101, lines 24-26) Before the first consultation with the applicant, Dr Champion had been made aware, via a letter from Ms Garner..., of precisely what was expected of him by way the report, and the medicolegal context in which it was sought. Ms Garner's letter reflected what she and the applicant had been told by the applicant's then solicitor, Dominic Carbone, would be required in order to give the applicant any chance of overturning Dr Campbell's decision."

Ms Adamson is correct on this point. Ms Garner's letter is ex R15. In part of that letter she says:
"Julie is anxious to know what treatment regime there is for her back pain as well as whether or not you can provide a 'strong' report to support her putting in a new claim to Comcare. The solicitor, Mr Carbone, at Fairfield, has said that you would need to state why you disagree with the other doctors' findings/reports for this claim to have a chance of acceptance, not just be able to say the ongoing pain/injury is work-related.
"If you cannot provide such a report Julie will be very angry & distressed and we will have to deal with that the best we can."

The transcript backs up the role suggested for Dr Carruthers in Ms Lewis's own evidence (8 February 2001, P-52).
Ms Adamson made the point that, in so far as people such as Dr G D Champion (eg T152; transcript, 8 February 2001, P-106) and Dr Sundaraj (ex R12) had considered the applicant's failure at the tribunal in 1996 to have worsened her "condition", the denial of compensation cannot itself give rise to a compensable condition. She cited the Federal Court decision, Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36, as authority.
As noted earlier, the applicant has had multiple motor vehicle accidents, one of which (in 1998) caused her to injure her back. Ms Lewis is quoted by psychologist Ms F Robards (ex R18) as saying on 25 February 1998 that, before the second motor accident [it was actually the fourth motor accident], she had pain but she felt "OK about herself". She attended the gym regularly and was able to manage her pain through exercise. Since the car accident she has been depressed and wanted to die. She currently has pethidine twice a week."
Despite constant reports of pain, the applicant does not display restrictions of movement. On 13 August 1997 Dr R Sundaraj, anaesthetist (ex R12) noted, "She was having thoughts of 'suicide' in view of the current unbearable pain. Interestingly, whilst she was rather expressive she had good movements to her head and neck, (L) upper limb and infact [sic] the whole of the (L) mid torso".
Ms Robards, the psychologist, wrote on 25 March 1998 (ex R19), "Teresa said that although [Ms Lewis] may be in a lot of pain, Julie appears quite flexable [sic] + able to move around".
Numerous doctors have been unable to ascertain a physical cause for Ms Lewis's complaints of pain in various parts of her body in both medico-legal and clinical settings.
As Ms Adamson put it, "The drugs administered to the applicant in purported relief of her pain are addictive. It is consistent with personality disorder (which Dr Campbell found was an apposite diagnosis) that persons with the disorder abuse substances (see also Dr G. David Champion's evidence at tr. 104). Views of treating practitioners and others have been expressed that the applicant is addicted to such drugs (see for example the note of Ms Garner dated 11.11.97 in [ex R16] which records the view of the Mental Health Team." This led Ms Adamson in cross-examination to raise with Dr Champion that Ms Lewis's complaints of pain may be calculated to result in access to addictive substances.
Ms Adamson suggested that, if this tribunal approaches the current application on the merits, it faces the same competing hypotheses as did the previous tribunal. These might be illustrated as:
           Applicant's hypothesis    Respondent's hypothesis
Earlier hearing       She continued to suffer a physical injury arising out of or occasioned during the course of her employment with the Department of Defence    Based on evidence from Drs J R Champion (T148) and (now) Donsworth (ex R2), the applicant's behaviour results from a personality disorder which pre-existed the work incidents. Based on Dr McGill's evidence (T146), any pain experienced does not have a physical cause and is not consistent with any known physical pathology.
Current hearing     Based on Dr Canaris (ex A1), the applicant's behaviour results not from a personality disorder but from severe and chronic pain which Dr G D Champion considers to have a physical cause related to conditions of work. Based on Dr G D Champion (transcript, 8 February 2001, P-109), there is no such thing as wholly physical or wholly psychogenic pain. Accordingly there is some physical basis for pain which is related to work.           Based on the updated evidence secured by the respondent, the same hypothesis as in 1995-1996.

Ms Adamson pointed out that aspects of the respondent's case were accepted by Dr G D Champion. He accepted that Ms Lewis has a personality disorder which affects her behaviour (T182 and transcript, 8 February 2001, P-104 – P-105). Dr J Taylor, a psychiatrist to whom Dr Gibson referred Ms Lewis, wrote on 31 October 1995 that psychogenic components seem to be predominant in perpetuating Ms Lewis's pain but this is not an interpretation she wants to accept (ex R5). Ms Adamson concluded , "That part of the respondent's hypothesis as relates to the diagnosis of personality disorder itself must be regarded as conceded".
Ms Adamson reinforced that proposition by stating:
"Although the applicant has little insight, she did give evidence of her attention-seeking behaviour, which is another hall mark of personality disorder: 'I said a lot of probably disturbing things to people. I said a lot of things I would never possibly do. I'd said a lot of things I would never do. I cried out and said a lot of things for attention because I could never get any and so I said a lot of things... so I'd get attention to get help that I needed'" (transcript, 8 February 2001, P-87 - P-88).

Ms Adamson went on to say that the applicant's witnesses had accepted that substance abuse is an aspect of personality disorder which can manifest itself in complaints of pain which must be vociferous to be effective. Dr G D Champion agreed in cross-examination that a complaint of pain per se, in the context of personality disorder which manifests itself in substance abuse is equivocal in that it is consistent with the presence of pain with a physical cause, but can also be consistent with the cry of pain required in order to prompt someone to administer Morphine or Pethidine (transcript, 8 February 2001, P-103 – P-104).
Miss Adamson also presented submissions as to the applicant's credit. She wrote:
"The applicant is an unreliable witness in that her capacity to perceive events is compromised. Accordingly her evidence should not be accepted except where corroborated. Such corroboration can necessarily only be derived from independent sources, and not from doctors who record complaints of pain made in a medicolegal context.
"Examples of unreliability
·Non recollection of prior complaints of pain (see tr. 64-72; cf [ex R31])
·Tendency to associate pain solely with work activities (see e.g. tr. 67, lines 13-18)
·Disparity between disinterested reports contained in contemporaneous documents and applicant's sworn evidence re her work and what she swore to the Tribunal, e.g.:
·tr. 69- and what she told Dr Kolos (see report dated 15 October 1985 in [ex R31])
·tr. 72- and what she told Dr Latt (see report dated 25 November 1987 in [ex R31)
·tr. 73-74 and what she told Dr Beran (see T51(139)
·Her evidence that on many occasions others have misinterpreted what she has said, e.g.
·tr. 70, lines 2-5;
·tr. 77, lines 24-27: 'You see people get things very disinterpretated [sic] when you're telling a story what's been happening with your life. With all the stories that you're telling them they get mixed up of what you're telling them.'"

By way of summary, Ms Adamson wrote:
"Even if the Tribunal rejects the respondent's primary submission that it is not obliged to reconsider the merits of the reviewable decision, they already having been determined by Dr Campbell at the previous AAT hearing and can dismiss the application, the Tribunal ought, in any event, dismiss the application.
"In the alternative, it is incumbent on the applicant, if it wishes to disturb the earlier decision, to demonstrate that there is some reason to do so: for example, the discovery of fresh evidence which was not available previously or some change in circumstances (it is difficult to imagine a change in circumstances in the instant case since the applicant is no longer employed by the Commonwealth). Dr Champion's theories pre-dated the earlier AAT hearing and accordingly cannot be regarded as 'fresh evidence'.
"Given that the applicant concedes that some weight, at least, should be given to Dr Campbell's decision, the Tribunal ought ascertain for itself whether there is any matter in respect of which Dr Campbell's decision can be shown to be incorrect. No error has been demonstrated.
"Further, even were the Tribunal to consider the matter afresh, as if the Tribunal had not earlier determined exactly the same question, it ought properly dismiss the application for review."

the applicant's case

Mr Grey, for the applicant, started by suggesting that the applicant's symptoms before 1987 were spasmodic and quite different from the later symptoms. "[O]ne can't say that whatever pre-existed in 1987, … it involved significantly, the left scapula area or shoulder area, or that it was incapacitating" (transcript, 15 March 2001, P-35).
Mr Grey said that Dr McGill worked under an incomplete history as regards the work Ms Lewis did for the air force. He has at all times been ignorant that she did heavy work at that time (transcript, 15 March 2001, P-35).
Mr Grey commented that Comcare was prepared to pay compensation to Ms Lewis for quite a lengthy period. The tribunal notes that this was from April 1988 to May 1995 (T18; T135).
Mr Grey submitted that it was only from 1991 that any medical experts began to comment adversely on Ms Lewis's presentation and began to identify a psychological component (transcript, 15 March 2001, P-38). Prior to that, and even up to 1994 and 1995, the doctors who examined Ms Lewis were prepared to admit the presence of physical signs for her pain (transcript, 15 March 2001, P-43). Dr Campbell, the tribunal member who decided Ms Lewis's earlier case, found that she had suffered a soft tissue injury in 1988 but that it had resolved. It is difficult to accept any proposition that she had no injury.
Mr Grey pointed out that the doctors involved in a medical board assessment (T123-T125) in August 1994, at Comcare's instigation, reported less favourably on Ms Lewis than had been the case in a 1990 board (T50-T52). The latter board assumed an unbroken similar symptomatology since 1983 which, Mr Grey said, was not correct (transcript, 15 March 2001, P-41).
Mr Grey then said that it was only after the earlier decision that Dr G D Champion became involved and was able to explain that there is modern pain research to explain the mechanism affecting Ms Lewis (transcript, 15 March 2001, P-45). Although Mr Grey conceded that Dr McGill was entitled to disagree with Dr Champion, "with all due respect to Dr McGill, [he was] really ducking the issue. Because the whole history of this woman's progress shows she's progressed from what would have been a very simple work related problem into a much more complex scenario and to kind of adopt these sort of hard and fast tests is not dealing with the administrative issue that this case is concerned with" (transcript, 15 March 2001, P-46).
Mr Grey concluded with the following proposition:
"Well, Medicare is not structured to deal with work related rehabilitation in the way that this Act is. She's not going to get it if she doesn't get it under this Act, I mean, that's the reality of it. So that in my submission, the path through this is quite clear. There is the work related injury. It continues. There is no sensible way of disentangling what everybody agreed was the case back in the early 80s by the time that years have gone by....
"Now, in reality if one is looking at this in a sensible administrative way, which is the way you've got to look at it, there is no sensible way that one can reverse that kind of process, six, seven, eight years down the track, having accepted that there was the work related component. Unless there is a point at which one can say the symptoms stopped here, they stopped here and then there was a fresh injury, and there's nothing like that in this case. The effect of that is that we say liability should be recommenced." (Transcript, 15 March 2001, P-48)

medical evidence

The tribunal takes Mr Grey and the applicant at their word and will concentrate largely on the medical evidence that postdates the earlier tribunal decision. This reflects the fact that the tribunal is considering whether a fresh claim should be admitted and the applicant's argument that the tribunal should entertain this case because the applicant is interested only in establishing a fresh liability from 7 April 1998 (see claim form in T157). The only medical witnesses called to give oral evidence were Drs McGill and G D Champion who, along with several others considered below, had provided medical reports after 1998.
Dr G D Champion

The tribunal has already quoted from his most important report (see paragraph 24 of these reasons). The extract presented there summarises why he believes that Ms Lewis has a compensable condition. The tribunal has also noted certain aspects of his oral evidence in its consideration of the respondent's position (see paragraphs 37ff of these reasons). Below, in relation to Dr McGill, there are some quotations in extenso from Dr Champion's oral evidence.
Dr N W McGill

Dr McGill has examined and reported on Ms Lewis a number of times. On 14 December 1995 (T146) he concluded that there was a large degree of embellishment or amplification in her reporting of pain. He considered that the nature of her work in the air force would not produce any permanent effect on her thoracic spine nor any other structures that could possibly be responsible for her pain. However, Mr Grey was correct in suggesting that Dr McGill may have an inadequatre understanding of Ms Lewis's air force work. He makes no mention of garbage collection as one of her duties, while mentioning mowing, concreting and whipper snipping.
Dr McGill saw Ms Lewis again on 5 June 2000 (ex R1). He relied on the work history he took in 1995 stating that she had not worked since about 1990. When examining Ms Lewis he noted that she moved freely. "She demonstrated normal dexterity when doing up her shoes." She demonstrated a full range of neck movement. Thoracolumbar spine movements were full in all directions. "She reported diffuse tenderness in the left upper back in the region of the left scapula and also between T3 and T7 in the midline". "There was a full range of movement of all upper limb joints". "Power, reflexes and sensation in the upper limbs were normal and symmetrical". He noted that when bending and slightly twisting to do up her shoelaces and when she twisted to clear a filing cabinet when walking out of the examination room she performed normal spinal movement with no loss of fluency nor any indication of discomfort. He wrote:
"I note that Dr Champion, in his report dated 27 October, 1997, commented 'Clearly, the motor vehicle accident of March, 1997 has contributed to her mid to low cervical pain syndrome and aggravated her thoracic pain syndrome'. Ms Lewis made no mention of the motor vehicle accident today and she specifically stated that she has no problem with her neck. The neck movements were full."

In his summary Dr McGill wrote:
"This 44 year old lady has reported pain in the region of left scapula and over the left chest wall since 1983. Repeated examinations and investigations have not revealed the source of her pain. The symptoms she reports were established prior to her work in the gardening section of the Air force, as is clear from Dr Lau's letter.
"I think the label 'regional pain syndrome' remains appropriate. When used by myself, that label reflects that the person reported pain for which there is no physical explanation. In my hands, the label does not attempt to differentiate genuine pain from a pattern of reporting without genuine pain nor does it attempt to differentiate between different severities of pain.
"I agree with Dr Champion that it is impossible to accurately assess what another person experiences when they report pain. I think it is however possible to assess whether the pain experience results in an alteration in physical function as observed. Although she has reported incapacity, there was no evidence on observation or on the other components of the physical examination that the pain she reports is interfering with her physical function."

Dr McGill considered that there was no evidence to suggest that her current symptoms resulted from an injury suffered in the course of her employment or from any disease or condition to which her employment has contributed in a material degree. In his view she was fit in 2000 for any of the jobs she has previously done and for any full normal employment.
On 24 February 2001 he commented in a report on Dr Champion's diagnosis (ex R32). He wrote:
"I have examined the correspondence provided by Dr Champion. The articles discuss a range of pain related problems, many of which have no possible relationship with Ms Lewis' situation. The Work-Related Musculoskeletal Disorders (1998) article [T190] commences with the question 'What are the conditions affecting humans that are considered to be work-related musculoskeletal disorders?'. The answer provided is 'the musculoskeletal conditions that may be caused by (non-accidental) physical work activities include disorders of inflammation, degeneration, and physiological disruption of muscles, tendons, ligaments, nerves, synovia, and cartilage involving limbs and trunk...'. Ms Lewis has no evidence of any of these disorders. The editorial by Dr Champion [ex A5] (which I presume he feels is relevant to Ms Lewis) refers to 'the scientific legitimacy of chronic pain with minimal or irrelevant pathology...'. He thus appears to be referring to the situation to [sic] where a person reports pain but has no evidence of any pathology that could be considered relevant to that reported pain experience.
"I would be happy to discuss specific questions arising from the opinions provided by Dr Champion but when assessing Ms Lewis' situation I think the key facts are that she has reported pain in the absence of any identifiable physical abnormality since 1983, dating well before she commenced work in the gardening section of the Air Force. The history she provided did not suggest that she suffered any physical injury as a result of her work in the gardening section of the Air Force and her investigations have not revealed any suggestion of the physical injury. Despite the severity of her pain experience as reported by her, the physical examination did not reveal evidence of impaired function (either on some primary basis nor secondary to pain).
"You asked me whether the theory put forward by Dr Champion is commonly accepted by the medical profession. Although he has provided a lot of words, I could not find in his various reports a distinct description of his 'theory'. [The tribunal, with respect, suggests that such a description appears in the paragraphs extracted at paragraph 24 of these reasons.] If the question is asked whether it is accepted by the medical profession that people can experience pain in the absence of physical disease, I think the answer is yes. Fibromyalgia is a common clinical syndrome where people report widespread pain, usually in association with depression or anxiety and often in the setting of sleep disturbance. That condition is not caused by physical activity and in fact an increase in physical activity has been shown to be of some help in improving the symptoms. If it is asked whether it is generally accepted that physical activity can produce a chronic pain syndrome in the absence of any evidence of physical pathology, I do not believe that the medical profession generally accepts the hypothesis."

Dr McGill gave oral evidence on 15 March 2001. Unless otherwise noted, all transcript references in this segment are from that day. Dr McGill was asked to address some oral evidence from Dr G D Champion. Dr Champion had said:
"Well, for a long time the thinking about pain, particularly, in the persistent and chronic pain context was all about locating pathology that was driving the persistence of pain. We increasingly in recent years have recognised the enormous role that changed sensory function in the central nervous system is playing in the neuro-biology of chronic pain, for example, in respect of chronic back pain we now have brain imaging as well as the whole host of other neuro-biological studies which show pathological sensory processing within the central nervous system and I have a paper here which is one of the very latest on that if it's considered relevant. So the understanding of the neuro-biology of chronic pain and how it becomes to a large extent autonomous, understanding increasingly how some of the mechanisms that a neuro biological change are reversible and some become irreversible so that person with sufficient initial pain severity or intensity or sufficiently prolonged low-grade pain intensity or continued low-grade pain inputs, may have lifelong pain through altered neuro biology, particularly within the central nervous system.
"We understand better about this psychological, psycho-social issues where instead of a common practice, especially in the medico-legal processes to say -- I can't explain this pain on pathology, it's therefore psychological. This psychological, psycho-social issues are now much more effectively thoughtfully researched and are accessible through appropriate interviews and measures and the like. For the most part, chronic pain disorders as we see in Julie Lewis' case, is an inter-relationship between the injury induced neurobiology and the psycho-social factors. It's an integration and each needs to be much better assessed than used to be the case as just a few years ago when this unfortunate woman went through the medico-legal process." (Transcript, 8 February 2001, P-92 – P-93)

Dr McGill said in response:
"The concept that pain derives from the periphery is modified by other factors which in putting it from [central] mechanisms before the pain experience is appreciated, has become increasingly well accepted and I think is accepted and certainly accepted by me, that is that painful stimulus can start in the periphery, can move up through the spinal cord, in the spinal cord or somewhere else in the brain, spinal cord system. I don't think it's been very well worked out precisely where, can be influenced by other factors such as emotional factors. People who are depressed, people who have sleep disturbance, a range of things that we think of as being psychological inputs can affect that. The reason I use the word think of as being psychological is that even in psychiatric diseases we are now starting to understand some of the change in the chemistry that occurs in the brain in relation to our psychological feelings. Those feelings, our thinking is all based on things actually happening at a physical level when you get down to a small enough level. So the division between psychological and physical in terms of brain function is an artificial one. It is very common to see people and has been for a long time, in fact it makes up a substantial amount of ordinary clinical rheumatology practice which is what I do most of the time, for people to come along and complain of pains often in the setting of disturbed psychology, that is depression, anxiety, often with sleep disturbance and in the absence of any physical lesion to account for the pain and the theory which I've just described I think helps explain why those people report pain rather than simply reporting that they're depressed. That those [central] mechanisms of depression and the personality make up and how they have come up as a child and their work experience in the past and their social life experiences, how they all impact on the sensations they feel that is called fibromyalgia, that the label put on that is fibromyalgia, that is people who report pain in the absence of any physical problem to account for that pain. So terms of that, I accept that. In terms of and it's not entirely clear whether Dr Champion here is making this point, but if I ask the question and answer it because I think it might be implied by his words. In terms of whether a non damaging peripheral activity doing repetitive thing will actually cause change in the pain system to cause ongoing pain, that is not accepted and I don't think that is true. That's certainly not a widely held belief or accepted amongst pain specialists. In terms of whether someone who has the appropriate psychological personality etcetera will report more pain with a physical injury, so now we're not talking about no physical problem but someone who has a physical problem, an arthritic knee, and the amount of pain the people report differs greatly between people that correlates quite well with their psychological status...." (Transcript, P-6 – P-7)

Dr McGill did not accept Dr Champion's assertion that many in the profession are not well educated in pain theory. He mentioned that he had organised and chaired a general practice session on aspects of pain and a Professor Littlejohn had been invited from Melbourne to address Dr McGill's unit. This was run for general practitioners in the area to discuss these matters.
Dr McGill went on to make the following remarks:
"In terms of the concept that peripheral painful sensory input can cause ongoing pain, I think that's true. If you have someone who particularly years ago when medical treatment was less good, had a very ischaemic painful leg that went on for a period of months, the leg could then be amputated and the person could continue to have pain, so-called phantom leg pain. That's in the setting of severe persistent pain. The concept that doing normal activities of a repetitive or non repetitive nature for that matter can lead to a [central] change that actually causes ongoing pain, I don't believe is accepted and I don't believe it's correct. I think we see that the types of stimuli that Dr Champion talks about, the wind up of pain, the radiation and persistence of pain after ceasing the stimuli, these are all of the same characteristics as seen in fibromyalgia, that is people who have a sensual -- on the hypothesis, a [central] malfunction of the pain system in association with anxiety, depression, sleep disturbance wherefore the vast majority of those people there is no suggestion of any abnormal or repetitive activity. I mean most of those people are not working, that's a common syndrome in the general population not restricted to compensation. It's very similar to the situation seen in the compensation setting except in the compensation setting the focus is all on something that the person is alleged to have done peripherally. So the presence of those characteristics of the way the person reports pain is not evidence that's there been some peripheral injury and the fact that people who have peripheral injuries, documentable peripheral injuries, don't tend to report correct causing [central] problem that pattern of pain, I think strongly indicates that it's not a minor peripheral injury or a minor peripheral event of a small degree that we can detect that is causing the [central] problem. If that was the case, then surely those peripheral lesions where we actually can detect problem, where it's bad enough to be visible clinically or on imaging studies, would cause a greater degree of that type of pain, but we don't see that....
"I don't think in these words here he is suggesting at all that there is any physical injury. In fact I think he actually goes to the -- he specifically states there isn't, I think. Sorry, I'll just go to the part. I was referring to his words where he says:
"... repetitive use of muscles without actually significant pain can produce the same change of sensual sensitisation of nociception and so muscle soreness from repetitive. Repetitive use is not due to local muscle pathology, it's due to the sensual sensitisation of nociception
"That was the comment that I was referring to, so at least in that - when he's referring to that comment, he's not suggesting that there is any peripheral injury at all. I agree with his conclusion that there's no peripheral injury. I don't agree with the hypothesis that normal activities that don't cause any pain at the time would be -- appear as normal activities can somehow produce a pain response. I think the evidence strongly suggests that what's producing the pain response is the psychology of the person and the influence that's having on their perception of pain....
"... there's truth in what Dr Champion says in that people have difficulty in understanding and getting to grips with people report pain and who don't have any physical injury, so I agree with that. I think -- I can't -- you know I don't think that I can add to my previous comments in regard to our understanding of lie that happens....
"I mean I think it is important to recognise that people who have a psychological problem when they report pain, need to be dealt with sympathetically to try and genuinely help their experience, but just as in the fibromyalgia model, that's not helped by giving them analgesics and telling them to rest and stop doing things and the sort of pitying type response. In fibromyalgia, the core treatments are a low dose antidepressant therapy and encouragement to exercise and they are not fantastically successful, but they have been demonstrated in controlled trials to be better than the other options. So I think in the setting of the report of pain in someone who doesn't have a physical injury to account for that pain, then antidepressant therapy can have a role, encouragement to function as normally as possible and get on physically with their life is much more productive than giving them potent analgesics and encouraging them or allowing them to back out of life....
"Professor Littlejohn who also has major interest in pain disorders prefers the label regional fibromyalgia to describe this syndrome in recognition of the fact that it is a very similar problem to the fibromyalgia that all rheumatologists very commonly see outside the compensation setting and the difference in the compensation setting is that it tends to be regionalised focused to whatever the area the person is attributing to their work activities." (Transcript, P-9 – P-12)

Mr Grey cross-examined Dr McGill and queried why he had said in his 1995 report (T146/336) that Ms Lewis's condition was due to the natural progression of some pre-existing or underlying condition. Dr McGill had relied on Dr Lau's report of September 1988 (T10), discussed in paragraph 39 above. In that report Dr Lau referred to a history of scapula pain since 1983. Mr Grey suggested that Ms Lewis's reports of such pain in 1983 and 1984 appeared to settle each time. Dr McGill responded:
"When dealing with a pain experience for which no pathology has been identified at any stage to explain the pain and someone reports pain here and here, this is a similar region and she, when I saw her, continued to complain of pains in both those regions I think or in the general region. I think that it's quite likely that that whole pain experience relates to the same problem. It would be -- you know, it's possible, it would be a coincidence if someone who had a pain experience, which there was no physical explanation, also just happened to have in the same area a physical problem that got better. I mean, it's much more likely that these previous reports of pain represent the same problem as she has subsequently reported.... I think they [pain in the left scapula and pain in the left ribs] both represent part of her regional pain syndrome.... it would be remarkable coincidence for someone who has a regional pain syndrome in the area to have previously had a pain and had had another pain in the same area, both of which, I think the suggestion is, which is some other problem that just happened to go away, and get them now she's left with these other pains in that same area. I mean, is it possible? It's possible. Is it that likely? It's not likely." (Transcript, P-15 – P-16)

Mr Grey suggested that she may have had a problem that was treated and dropped to a level where it ceased to be a reportable difficulty for her and then it was aggravated by her work. Dr McGill considered that possible but, "at least in regard to part of her pains" she had had the same type of pain "on and off since then". Mr Grey asked Dr McGill to comment on whether a genuine injury in 1988 could have apparently settled but still be causing pain. Dr McGill said it depends on the original injury. If the original injury was a painful, persistent injury, as with phantom leg pain, then that can occur. If the original injury was not noticed or did not cause persistent pain then he did not think this would occur.
In re-examination Ms Adamson returned to this theme (transcript, P-28 – P-30). She asked that he consider the notes by Dr Kolos. [In fact she meant to refer to Dr Lau's notes produced under summons.] These referred on 5 May 1981 to a motor accident three days earlier causing pain over the ribs, pain in 1983 in the left scapula region (diagnosed as fibrositis which, Dr McGill explained, was the same condition as fibromyalgia), pain over the left ribs in 1984 when fibrositis was diagnosed in both August and December and left sided chest pain in 1985. He noted that she had been prescribed Tryptanol, an anti-depressant, as part of her treatment for this pain in 1985. Dr McGill then quoted from Dr Latt's report (ex R31) where the history recorded is that Ms Lewis has suffered left sided chest pain of approximately 12 months duration, a pain for which Dr Latt could find no explanation. Mr Grey questioned Dr McGill further and Dr McGill agreed that he was assuming that pain experienced before 1988 in the left scapula and pain in the left ribs were related to the same condition. He was then asked if he accepted that it is possible that these pains "may not have been related to the same [condition]". Dr McGill replied that it was possible but not likely (transcript, P-30).
Mr Grey sought to have Dr McGill admit that he had not noted that Ms Lewis did potentially heavy work emptying garbage bins. Ms Adamson objected that Mr Grey was said to be basing his questions on a premise that had as its source only the applicant's statements. The applicant's evidence was said to be inherently unreliable because of its inconsistencies.
At page P-21 of the transcript Mr Grey asked Dr McGill, "So, this lady could be reporting, even on your own assessment, pain which she genuinely feels?" Dr McGill answered yes. He also agreed that she could feel worse pain on activity.
In T146 and ex R1 Dr McGill was of the view that, physically, Ms Lewis was fit for her full normal employment and fit for all work. However, in his oral evidence Dr McGill addressed how a person with fibromyalgia would need to be handled in order to make a successful transition into the workforce. At P-24 of the transcript he explained that they need psychological support and encouragement. The existence of a pending compensation case can militate against a sufferer returning to work function. As regards Ms Lewis, in answer to Mr Grey's question, "[Y]ou would not tell this woman … that next Monday [she] should start back on full duties with no restrictions, would you?", Dr McGill stated that psychologically that would be very unlikely to be accepted. "… could she do it? I think she could, physically. Would she – would that be a useful way to go about getting her to accept a return to work? I don't think it would be. I think that a graduated program would be better" (transcript, P-25).
Dr C A C Canaris

Dr Canaris, a psychiatrist, provided a report on 2 May 2000 (ex A1) but did not give oral evidence. He did not accept that Ms Lewis has a personality disorder, as was found in the earlier decision. The indicia of such a condition did not appear present in Ms Lewis's adolescent years. He considered that Ms Lewis's pain was consistent with a physical diagnosis of allodynia. The tribunal understands this to be an alternative way of identifying the presence of central sensitisation of nociception. A doctor who subscribes to the theory of sensitised nociception conducts an examination where he or she looks for signs of allodynia (ie extremely sensitive skin). He considered that the applicant provided a credible history. "What I find most impressive in talking to your patient today and reading through her numerous reports is the sheer consistency of her physical complaints and which do not alter from assessment to assessment. Patients who malinger, by contrast, tend to change their story as they variously embellish their accounts. Similarly, patients with somatoform disorders or pain disorders (our new fangled terms for the age old diagnosis of hysteria) similarly tend to give somewhat inconsistent accounts" (ex A1/5-6). He accepted that "Her pain is real".
The diagnosis was severe and chronic adjustment disorder precipitated by her constant pain, characterised principally by anger and frustration.
He believed that Ms Lewis's "present parlous condition [was] directly attributable to a physical cause which has gone unrecognised while [she] herself has been greatly traumatised by her experience of the medicolegal process" (ex A1/6). He conceded that he was "in no position to comment on the relationship between Ms Lewis's workplace and the onset of allodynia". He left that to Dr Champion to judge.
Dr J Donsworth

Dr Donsworth, another psychiatrist, saw Ms Lewis on 11 October 2000 (ex R2). She could identify no current psychiatric disorder and the "outstanding factors are the personality and behaviour factors" (ex R2/7). Her diagnosis was:
"a. Pain Disorder Associated with Psychological Factors DSM IV 307.80.
b.Personality Disorder (mixed Histrionic and Narcissistic) DSM IV 286." (Ex R2/8)

These two disorders had "long since ceased to have any connection with the employment of 1987".
The applicant was unfit for any employment, "her conviction regarding her pain, plus an extreme degree of elaboration of personality and behavioural factors currently render her unfit for any employment".
There were "danger signs of addiction to opioids developing".
It is clear from pages five and six of Dr Donsworth's report that Ms Lewis presented badly at interview.
"Ms Lewis arrived fifty five minutes late for this appointment. She said that the plane from Coffs Harbour had arrived in Sydney late, although the ultimate reason why she was so late was because she had caught an ordinary commuter bus from the airport to Bondi Junction and then to Paddington.
"She was dressed casually and untidily, appearing overweight with untidy hair.
"She was very controlling and verbose in the interview. She would not answer questions directly, but would continue on with her own theme, talking down to me rudely and making disparaging remarks about other doctors.
"She told me that last Monday she had been waiting in Coffs Harbour for a doctor from Liverpool Hospital to phone her and this had not occurred. She told she was extremely angry with this doctor and was going to tell him so.
"Several times she launched into tirades about how other people don't do their jobs properly....
"She clearly does not listen to anything unless she herself deems it relevant....
"The interview was punctuated by many difficulties, including her anger, her uncooperativeness, her extremely high sense of entitlement, her over whelming decision to have the interview going just her way and no other.
"There was no evidence that she was depressed.
"There are obvious personality factors present."

Dr J R Champion

Dr Champion, another psychiatrist, has provided several reports. On 23 April 1996 (T148) he diagnosed a constitutionally-based personality disorder, finding no evidence of anxiety, depression or any other psychiatric disorder. On 21 August 2000 (ex R6) Dr Champion described an aborted consultation he had experienced with Ms Lewis on 10 August 2000:
"Mrs Lewis was noticeably angry and hostile from the outset of the examination. She told me that she planned to take their own notes and produced a writing pad but became so involved with expressing anger that I observed that she did not manage to take any notes.
"She told me that she had not wanted to come to the examination. She told me that she had read my report about her which she told me was 'disgusting and disgraceful' and told me that I had 'destroyed' her life. She continued on paying little attention to any questions addressed to her. Her comments remain focused upon personal denigration. She expressed considerable anger.
"I gave her some time to allow her anger to be expressed and possibly to subside with a view to the possibility of being able to conduct an examination however Mrs Lewis went on barely pausing to draw breath. When she did cease speaking and I attempted to interpose an inquiry as to how she had been since I had seen her last she immediately resumed her hostile barrage.
"I noted that although she appeared superficially very angry the anger appeared to be under control and directed deliberately at causing the examination to be abandoned. She told me that she was currently under the care of 'wonderful doctors' who were 'incredibly intelligent'. When I asked her to tell me about these doctors and the treatment they provided she resumed her abuse 'why would you want to know'. She repeated many times that she was only here today because she had been sent by her lawyers. The tirade continued seemingly endlessly 'You are a disgusting human being'.
"After almost half an hour of listening to the tirade I told Mrs Lewis that I could see little point in continuing the examination and that it was concluded. At that stage she assured me that I had a Personality Disorder and left.... In my view her behaviour was consistent with the opinions expressed in my initial report and appeared to substantiate the opinion that Mrs Lewis' complaints of pain and disability were strongly associated with a dysfunctional personality structure (Personality Disorder)."

Dr J R Champion noted Dr Canaris's report. He homed in on the frequent Pethidine and Morphine injections. He wrote, "The use of an addictive narcotic analgesic, on a long term basis in those complaining of pain in the absence of evidence to substantiate the presence of physical disorder is a questionable activity. This is particularly so in the case of an individual with the history of drug abuse and possible personality dysfunction. The risks are obvious in terms of addiction." Dr Champion went on to say that, "Overall it would seem that Dr Canaris' suggestion is that Mrs Lewis' 'over the top' behaviour results not from Personality Disorder but from severe and chronic pain. I do not agree with this point of view and believe that much of the information reported by Dr Canaris dealing with his examination of Mrs Lewis would suggest to most psychiatrists the presence of Personality Disorder." He concluded that Ms Lewis has a personality disorder that is constitutionally based and likely to be permanent.
Dr J R Champion said that, from a psychiatric point of view, the presence of a personality disorder is not inconsistent with being psychiatrically fit for a return to work if motivated in that direction. Currently the applicant is motivated towards compensation. This echoes the opinion of psychiatrist Dr J Taylor (ex R5, 31 October 1995) who said that psychogenic components seem to be predominant in perpetuating her pain but this is not an interpretation Ms Lewis wanted to accept.
findings on material questions of fact with reference to the evidence and other material in support of those findings
Legal issues

The tribunal has decided to resist Ms Adamson's somewhat convincing arguments inviting it to refuse to hear this application given the existence of the earlier decision. The tribunal considers that the interlocutory decision by Senior Member Allen effectively disposed of the issue. The tribunal accepts that Senior Member Allen's decision was correct. There was the appearance of a fresh diagnosis that could conceivably have commended itself to a newly constituted tribunal. At the same time the tribunal emphasises that its decision to hear this application was not influenced in the least by the applicant's approaches to Comcare seeking to reopen the earlier decision.
For Comcare to be liable to pay compensation to Ms Lewis under s 14 of the Act she must have suffered an injury under the Act. For an "injury" to have occurred under the Act, s 4(1) requires that an employee must have a disease or a non-disease physical or mental injury arising out of, or in the course of, the employee's employment, or an aggravation of a physical or mental injury provided the aggravation arose out of, or in the course of, the employee's employment.
A "disease" under s 4(1) is an ailment suffered by an employee, or the aggravation of such an ailment. The ailment or aggravation must have been contributed to in a material degree by the employee's employment.
The Act defines an "ailment" in broad terms as any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.
In this case, therefore, it is necessary to discern whether Ms Lewis has an injury and whether any such injury is related in an appropriate way to her employment with the Defence department in 1997-1998.
Central sensitisation of nociception

As a first step the tribunal does not accept that the applicant suffers from an injury, disease or ailment known as central sensitisation of nociception with allodynia, as she claimed on her claim form. I am unaware of any decision of the tribunal in which this has been accepted as an injury under the Act. In paragraph 27 above, Deputy President Burns in the Wood case (supra) was quoted expressing views about this diagnosis and Dr G D Champion which are equally applicable in the present case.
Exhibits A4 and A5 do not assist greatly. Exhibit A4 is a learned article from a journal called Pain. The article details the results of experiments that suggest that sufferers of chronic pain exhibit changes in brain chemistry. Apparently these can be discerned using magnetic resonance spectroscopy. At the hearing on 8 February 2001 Dr G D Champion refereed to this article during cross-examination. Ms Adamson asked: "Is it fair to say that where there is no pathology, it's ultimately a question of judgment or opinion as to whether this [nociceptive] pain disorder is present or whether the problem is purely psychological?" He replied:
"But there's no evidence of that – in the ordinary practice of medicine of purely psychological pain disorder, especially of a focal type, certainly – I mean even – even the hysterical conversion reactions – diminished to almost zero and pain is not one of those which are widely accepted. There is always an integration of neurobiology with the psycho-social factors. The latest issue of Pain and I brought this paper with me shows – takes a sample of individuals with chronic spinal pain without much in the way of pathology in the conventional sense and does brain chemistry imaging and shows remarkable contrasts with people without back pain. So, the problem lies in our human ability to understand and interpret what's going in where people are – have chronic pain after injury and in many other contexts and the research shows – showing us all the time that the cynical views of predominantly psychological causation and so on – have been overvalued. Thus said, thus said there is no question that psycho-social factors are at least as important as the neurobiological changes in peoples ability to work and determination of whether they will work" (transcript, P-118).

This would appear to say no more than a person with genuine chronic back pain has demonstrable changes in brain chemistry. A reading of the article does not suggest that the sample consisted of some or all who demonstrated no organic source of disease or injury. Indeed, the article seemed concerned more with identifying where surgical intervention might be in order in a case where there are spinal abnormalities without noticeable symptoms. As far as the instant application is concerned we have no evidence that Ms Lewis's brain has undergone any change in its chemistry. The study applied to sufferers of chronic back pain. Ms Lewis claimed originally in respect of muscular strain in the left chest wall (T18, 6 July 1988). Even as late as 1992 she claimed for permanent impairment by way of muscular strain to the left chest wall (T73). The tribunal was not assisted by any substantial interpretation of this study from Dr Champion.
Dr G D Champion also provided a copy of an editorial he had written for Current Therapeutics journal (ex A5). This receives a mention in Dr G D Champion's evidence at transcript, P-114, however its purpose is unclear. It seems that Dr Champion thought it would help explain central sensitisation of nociception, but the tribunal finds it less useful than the material in the T documents. He does say in the editorial:
"The scientific legitimacy of chronic pain with minimal or irrelevant pathology within the clinicopathological model is often questioned.... Such pain is often considered unreal and is banished from the medical domain by references to psychogenic or somatoform disorders.
"If pain is not linked with disease, it tends to drift within medical theories. Many medical practitioners invoke 'somatisation' as an explanation for pain without tissue pathology because it permits explanation of symptoms in terms of defects within the individual, as the clinicopathological process would seem to determine. In one sense, all pain is psychological in that the somatic or neuropathic experience has to be mentally filtered, interpreted, and it influences out behaviours including reporting. However, the answer to the understanding of persistent or chronic pain, including pain which seems inappropriate to expectations, lies increasingly in improved pathological research in some contexts, a knowledge of the neurobiology of nociception, with improved awareness of the associated psychological processes, and a deeper understanding of the individual patient.
"The new knowledge of pain medicine has not yet sufficiently influenced clinical practice....
"There have been major but quiet paradigm shifts occurring in the areas of neurobiology and psychological medicine in the pain context. They have been 'quiet' because there is a serious deficiency in the extension of published evidence and knowledge into the medical community and into the general community. The essential difficulty has been the lack of scientist-practitioners able to highlight the need, perform the clinical studies, and deliver the knowledge and applications."

This editorial states the problem rather than providing any answer. It provides support for Dr McGill's view that Dr Champion's theories command no general acceptance and it seems to concede that they are as yet unsupported by rigorous research. At the end of the day it seems to the tribunal that Dr Champion's theories are as yet little more than interesting ideas that may or may not be correct.
On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:
"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression 'onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.
"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:
'Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:
"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."
"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."
In Ms Lewis's case the evidentiary onus was on Comcare in the earlier decision because it had interfered with the status quo by ceasing her compensation. Practically, one could say that there was an evidentiary onus on Comcare to satisfy the tribunal of the appropriateness of its actions if it was to successfully resist Ms Lewis's application for review. Comcare succeeded in defending its decision. In the present application, as has been established already, the applicant is seeking to press for the acceptance of a fresh claim and so the evidentiary onus is upon her. To the extent that success in her application depends on showing that the alleged injury was central sensitisation of nociception the application has failed.
That, in view of the case made for the applicant, might appear the end of the matter. As can be seen from paragraphs 56-62, above, the applicant proceeded wholly on the basis of a continuing physical injury or disease referable to her Defence Department employment. However, the tribunal will consider whether any of several other possible conditions may be affecting the applicant and may be compensable.
Relying on the evidence adduced in these proceedings there are several possibilities. One is that she has a personality disorder as found in the earlier decision. Another is that she has what Dr McGill has variously described as regional pain syndrome (ex R1) or regional fibromyalgia (ex R32; transcript, 15 March 2001, P-12) (formerly called fibrositis – see paragraph 76 above).
Regional fibromyalgia or regional pain syndrome

Explanations, and the bases, for Dr McGill's opinions are fully canvassed earlier in these reasons (paragraphs 65-79 above) and will not be repeated here. However, it is necessary to address Mr Grey's attempts to undermine them.

Mr Grey had suggested that Ms Lewis's various thoracic pain conditions from 1981 to 1987 had come and gone and were discretely different conditions. Dr McGill considered this possible but unlikely. It was unlikely that discrete and different pains would recur in the one location over so many onsets and over so many years. He relied on Ms Adamson's list of thoracic pain conditions in paragraph 76, above, in making these comments.
Dr McGill had not had as part of his history the information that part of Ms Lewis's duties for the air force involved the emptying of heavy garbage bins. Although Dr McGill admitted this was the case, Ms Adamson countered the potential impact of this absence of information by casting doubt on Ms Lewis's account. Ms Adamson, as explained above in paragraph 54, was able to mount a convincing case that the applicant's credibility as a witness was weak.
Ms Lewis was reporting pain that she genuinely feels. Dr McGill conceded that this could be so. However, that was consistent with his diagnosis of fibromyalgia in any event.

The tribunal finds that Dr McGill's evidence is very credible and considers that he convincingly answered Mr Grey's attempts to undermine that evidence.
Part and parcel of Dr McGill's evidence is that Ms Lewis has suffered from fibromyalgia (however described) since at least 1983 (and possibly since 1981). Dr McGill noted that she was prescribed Tryptanol in 1985. He did not make the connection explicitly, but the tribunal notes Dr McGill's evidence about the coincidence of fibromyalgic conditions and depression (transcript, 15 March 2001, P-6 – P-7). These symptoms from 1983 predate by four years her work for the air force. The tribunal accepts Dr McGill's evidence on this point.
As a result of these findings, if Ms Lewis has a fibromyalgic condition, she has suffered from it since 1983, at least, and at its highest her case would have to be that she suffered an aggravation of the condition from her work for the air force in 1987-1988. Such an outcome would be consistent with Comcare's determinations authorising incapacity and other payments from November 1988 to 1995. Dr McGill was confident in T146 that any employment effect on her condition would be only temporary. By 2000 he considered that her condition by that stage was not at all connected with her employment (ex R1).

Mr Grey made something of the fact that Comcare paid Ms Lewis for seven years and that it is only through Comcare that she will be able to obtain necessary coverage for required medical treatment (see paragraph 62, above). With respect to Mr Grey, that is not a criterion recognised by the Act for continuing or, as here, re-establishing, a liability under that Act. In truth, it may be that Comcare was somewhat generous to have continued paying Ms Lewis for as long as it did. Pretty clearly, as the tribunal found in the earlier decision, liability had ceased by 1995, even if we do not know how much earlier that state of affairs prevailed.
The tribunal therefore accepts Dr McGill's as the best evidence available to it that any aggravation of Ms Lewis's fibromyalgic condition had ceased by 1995.
Personality disorder and pain disorder

Mr Grey asserted that there were difficulties with the diagnosis of personality disorder. Certainly Dr Canaris did not accept it, largely because it did not appear present in the applicant's adolescent years (ex A1/5). Mr Grey argued that Ms Lewis's interactions with doctors between 1988 and 1991 had been unexceptionable. It was only after that that Ms Lewis began to exhibit unfortunate personality traits. The tribunal makes the obvious point that it was on 15 January 1991 that Comcare determined for the first time that it had no continuing liability to pay compensation as of 21 December 1990 (T58). Until that time Ms Lewis had received all she asked for. She had no reason to exhibit any negative personality traits. This new threat to her income position was coincident with the change in her presentation and demeanour.
Ms Lewis was adamant in her oral evidence that she certainly does not have a personality disorder. It is not at all clear to the tribunal that anyone has explained to Ms Lewis exactly what is a personality disorder and it is not at all clear that she understands what such a disorder is. She seems to see it as a diagnosis that denies her any right to feel pain and which is calculated to deny her compensation. Her counsel, Mr Grey, appeared to follow that approach, perhaps because the tribunal in the earlier decision had identified a pre-existing personality disorder as the cause of Ms Lewis's problems, a disorder that did not sound in compensation because of lack of any evidence of any cause or aggravation attributable to employment by the air force. Thus Mr Grey erroneously asserted that "there is no real clear analysis here of what the personality disorder is. Nobody seems to have put a DSM 4 category on it …" (transcript, 15 March 2001, P-44). Ms Adamson rightly corrected this at P-74 of the transcript by referring to Dr Donsworth's assessment which identified the relevant conditions in "DSM-IV" (the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed), (see paragraph 83, above). The tribunal will consider DSM-IV in due course, but it is instructive to identify the collected evidence for a personality disorder. Ms Lewis's representatives may have served her better had they argued that there was some connection between her Defence Department work and the severity of Ms Lewis's personality disorder. Provided she can surmount the principles laid down by the Federal Court in Comcare v Mooi (1996) 137 ALR 690, any personality disorder that might be present might constitute an injury under the Act.
Dr G D Champion considered that Ms Lewis suffers from a personality disorder. In the transcript (8 February 2001, P-104) he not only agreed with Ms Adamson that Ms Lewis has a personality disorder, but he agreed that substance abuse is a hallmark of a personality disorder. Subjected to extremely skilful cross-examination Dr G D Champion said the following at P-104 – P-105:
"…
MS ADAMSON         Dr G D CHAMPION
And if one of the substances that is being abused is and correct me if my pharmacology is wrong on this but if one of the substances which is being abused is pethidine or other morphine derivative, then in order to obtain such substances for pain relief, a complaint of pain has to be made by the seeker of that drug?    Yes, yes.
If someone has a personality disorder of some variety which manifests itself at least in part in the abuse of substances, then that person has an incentive arising from a manifestation of the personality disorder to complain of pain, do they not?         Yes.
Indeed, it is typical of people with personality disorder manifested at least in part in substance abuse that they will repeatedly present to medical centres or the casualty departments of hospitals complaining of excruciating pain which they say could only be relieved by pethidine injection, morphine injection or the like?          Yes.
Because these drugs, namely pethidine and morphine, are very powerful drugs, are they not?     Yes.
Which would only be -- which could only be properly administered to relieve very serious, very severe pain, would they not?         Yes
And they also happen to be very addictive, don't they?.      Yes.
And as you understand it, that's one of the reasons why doctors prescribing pethidine need -- I think it's an approval or clearance from the New South Wales Department of Health in order to permit them to prescribe drugs of that variety? Yes.
And that's in contrast to other pain relieving drugs such as Naprosyn, Voltaren etcetera which do not -- are not subjected to such a regime because of their, I suppose, lower potential for addiction and lesser effect, is that right?       Yes.
So, when a patient complains to you of pain then there [can], as a matter of logic, be a physical reason for it or a psychological reason for it -- psychological maybe being attached -- associated with substance abuse or it may have a be a mixture of both of those, do you accept that as a matter of logic?        Yes, yes.
All right. So, when a patient complains to you of pain that, of itself, cannot in any unequivocal way establish a diagnosis of the disorder you've mentioned because to do that would be to catch, as it were, all the people with a psychological disorder which causes them to complain of pain in order to obtain drugs of the varieties I've mentioned, would you agree with that?   Yes.
And as part of the process of complaining of pain in order to obtain drugs, it is common to your knowledge that particularly in a medico -legal context that such patients attribute the cause of the pain either to work or to a motor vehicle accident or some other compensible event in order to attract the financial support of authorities such as my client, Comcare, or a CTP insurer? I think that probably is quite -- quite common, yes.
…."
It has already been noted that in T182 Dr G D Champion said that the applicant has a personality disorder and that he had become less certain about her alleged central sensitisation of nociception.
Dr H E Marsden, a surgeon (T99), considered in 1993 that Ms Lewis had a personality disorder.
Dr G A Robbie, a psychiatrist (T123), considered in 1994 that Ms Lewis had an atypical personality disorder.
Dr A Hodgkinson, an orthopaedic surgeon (T125), considered in 1994 that Ms Lewis had a severe personality disability.
Drs Bodel (orthopaedic surgeon)(T127) and Taylor (psychiatrist)(T142) in 1995 identified less precise psychiatric effects. Dr Bodel described "a very significant psychological disability". Dr Taylor identified dysthymic disorder and somatoform pain disorder.
Dr J R Champion, a psychiatrist (T148), diagnosed "dysfunctional personality structure (personality disorder)" in 1996. He wrote: "there is a long history of alcohol and other drug abuse as well as a highly unstable employment record. Failure to develop and establish major interpersonal relationships and at least one instance of problems with a law associated with drugs. All these factors are consistent with the presence of underlying personality disorder. Those with personality disorder often suffer with emotional lability and are prone to feelings of depression and anxiety from time to time and are also more likely to complain of physical symptoms such as chronic pain which may represent gross exaggeration of minor symptoms" (T148/350).
Dr Donsworth (ex R2) nominated two possible DSM-IV categories for the applicant's alleged personality disorder. DSM-IV provides in general in relation to personality disorders, "A personality Disorder is an enduring pattern of inner experience and behaviour that deviates markedly from expectations of the individual's culture, is pervasive and inflexible, has an onset in adolescence or early childhood, is stable over time, and leads to distress or impairment" (DSM-IV, p 647).
Dr Donsworth identified "Personality Disorder (mixed Histrionic and Narcissistic)" as part of a viable diagnosis. For histrionic personality disorder five or more of the following must be present (DSM-IV, p 676):

(a)Is uncomfortable in situations in which she is not the centre of attention;
(b)interaction with others is often characterised by inappropriate sexually seductive or provocative behaviour;
(c)displays rapidly shifting and shallow expression of emotions;
(d)consistently uses physical appearance to draw attention to self;
(e)has a style of speech that is excessively impressionistic and lacking in detail;
(f)shows self-dramatisation, theatricality, and exaggerated expression of emotion;
(g)is suggestible, ie, easily influenced by others or circumstances;
(h)considers relationships to be more intimate than they actually are.

For narcissistic personality disorder DSM-IV describes, "A pervasive pattern of grandiosity (in fantasy or behaviour), need for admiration, and lack of empathy, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following" (DSM-IV, p 680):

(a)has a grandiose sense of self-importance;
(b)is preoccupied with fantasies of unlimited success, power, brilliance, beauty or ideal love;
(c)believes that she is "special" and unique and could only be understood by, or should associate with, other special high status people (or institutions);
(d)requires excessive admiration;
(e)has a sense of entitlement, ie, unreasonable expectations of especially favourable treatment or automatic compliance with her expectations;
(f)is interpersonally exploitative, ie, takes advantage of others to achieve her own ends;
(g)lacks empathy: is unwilling to recognise or identify with the feelings and needs of others;
(h)is often envious of others or believes that others are envious of her;

shows arrogant, or haughty behaviours or attitudes.

Clearly Dr Donsworth favoured a mixture of these two diagnoses because the applicant is not accommodated easily under either taken in isolation. Dr Donsworth did not flesh out her thoughts on how Ms Lewis comes within the diagnostic criteria. However, it would appear necessary to say at least something on this. As regards Histrionic Personality Disorder there appears some evidence that, not unnaturally, the applicant sees herself as the centre of attention in her encounters in the medicolegal environment. However, there are also a number of interactions with Comcare and the Defence Department where this tendency is apparent as, for example, in T61, T62, T63, T115, T117, T129, T134, T177, T179 and T189 (an interaction with Dr Khor).
In her presentation to many doctors Ms Lewis has shown self-dramatisation, theatricality and exaggerated expression of emotion. The extract from one of Dr J R Champion's reports (paragraph 88, above) is a good example.
Ms Lewis appears suggestible. In her oral evidence she appeared suggestible in relation to the ideas of Dr G D Champion and Ms V Garner.
As regards Narcissistic Personality Disorder, a grandiose sense of self-importance would appear to cover similar ground as a self-perception of the self as the centre of attention (see paragraph 123, above).
Ms Lewis has a sense of entitlement. This manifested itself most noticeably in her dealings with Comcare after the earlier decision where she showed a considerable disregard for the tribunal's decision.
DSM-IV says as regards pain disorder, "The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention... The pain causes significant distress or impairment in social, occupational, or other important areas of functioning... Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain... The pain is not intentionally produced or feigned as in Factitious Disorder or Malingering...... Examples of impairment resulting from the pain include inability to work or attend school, frequent use of the health care system, the pain becoming a major focus of the individual's life, substantial use of medications, and relational problems such as marital discord and disruption of the family's normal lifestyle" (p 470).
Pain Disorder Associated with Psychological Factors is said to be "used when psychological factors are judged to have a major role in the onset, severity, exacerbation, or maintenance of the pain. In this subtype, general medical conditions play either no role or a minimal role in the onset or maintenance of the pain" (DSM-IV, p 471). The diagnostic criteria for pain disorder in general are as follows:

A.Pain in one or more anatomical sites is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention.
B.The pain causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
C.Psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain.
D.The symptom or deficit is not intentionally produced or feigned.
E.The pain is not better accounted for by a Mood, Anxiety, or Psychotic Disorder and does not meet criteria for Dyspareunia.

Should there be any doubt as to whether Ms Lewis satisfies the criteria for mixed histrionic and narcissistic personality disorder, there is a clear case that she satisfies the criteria for pain disorder associated with psychological factors.
In relation to personality disorder Dr Canaris doubted the diagnosis because of a lack of evidence of personality problems at the time of adolescence. As was seen earlier, this is a requirement under DSM-IV for personality disorder. The tribunal, like Dr J R Champion, is not convinced that the applicant's earlier life was as trouble-free as Dr Canaris is prepared to assume. There is a history of cannabis use and an arrest associated with that. There is the considerable evidence that Ms Lewis has substance abuse problems, including an actual or developing addiction to opioids. Ms Adamson made a very convincing case that a probable explanation for Ms Lewis's pain behaviour before doctors is calculated to ensure her access to opioids, a proposition with which Dr G D Champion agreed in principle, and a phenomenon often associated with the presence of a personality disorder. There was also a lengthy list of jobs done before she worked for the Defence Department. In any case, there appears no requirement for any symptoms in adolescence for pain disorder.
The tribunal, in view of this material on mental state conditions, finds on the balance of probabilities that Dr Donsworth's diagnoses are correct. The applicant has a pain disorder and a personality disorder.
The tribunal finds, as it did in the earlier decision, that any personality disorder is constitutional and not associated with Ms Lewis's employment in the air force.
The tribunal finds itself in agreement with Dr Donsworth (ex R2/8) that any combination of the two disorders discussed above has long since ceased to have any connection with her employment in 1987. The tribunal notes the evidence discussed earlier suggesting that the applicant's chest wall pain was of longstanding by 1987 and finds that, if that condition contributed in any way to Ms Lewis's pain disorder, the contribution predated any injury suffered in 1987. In essence, the tribunal accepts Dr Donsworth's opinion that the applicant would be where she is today (and in 1998 when she made her current claim) regardless of the 1987 employment.
In other decisions the tribunal has been prepared to find in favour of an applicant where he or she feels pain even if the basis for that pain is difficult to diagnose. Recent examples are Re Polder and Comcare [2001] AATA 780 and Re Bianchi and Comcare [2001] AATA 805. However, in these cases the applicants had established clear links between employment and the conditions engendering pain.
conclusion
The tribunal has found that the evidence does not establish that the applicant has suffered an injury under the Act such that Comcare is liable to pay compensation to her.
decision
The decision under review is affirmed. The applicant is entitled to no costs from the respondent in respect of this application.

I certify that the 135 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Dates of Hearing  8, 9 February 2001, 15 March 2001.
Date of Decision  25 March 2002
Counsel for the applicant         Mr L Grey
Solicitor for the applicant         Carroll & O'Dea
Counsel for the respondent     Ms C Adamson
Solicitor for the respondent      Dibbs Barker Gosling