Schmidt and Comcare - [2002] AATA 903

DECISION AND REASONS FOR DECISION [2002] AATA 903

ADMINISTRATIVE APPEALS TRIBUNAL ) No A2000/220

) No A2000/463

GENERAL ADMINISTRATIVE DIVISON ) No A2002/45

Re      JOSEFA SCHMIDT
  Applicant
           And    COMCARE
  Respondent
DECISION

Tribunal Mr G A Mowbray

Date22 August 2002
PlaceCanberra

Decision For reasons given orally the Tribunal sets aside the decisions under review, being decisions made by the Respondent dated 30 May 2000, 23 November 2000 and 17 January 2002, and remits the matters to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:

(a) since at least October 1999 Ms Schmidt has suffered from fibromyalgia and she continues to suffer this condition today;
(b) Ms Schmidt's fibromyalgia was contributed to in a material degree by her employment, specifically an incident at work on 1 June 1999;
(c) Ms Schmidt continues to suffer from the "sprain of unspecified site of shoulder & upper arm (Right)" and "neck sprain" for which liability was accepted on 6 July 1999;
(d) Ms Schmidt remains totally incapacitated for work in terms of section 4(9)(a) of the Safety, Rehabilitation and Compensation Act 1988;
(e) Ms Schmidt had and continues to have a requirement for psychology services for the purpose of alleviating the abovenamed conditions;
(f) Ms Schmidt's bilateral carpal tunnel syndrome is compensable for the period 10 June 1999 to 17 October 2000 inclusive.
The Tribunal orders the Respondent to pay the Applicant's costs as agreed or taxed.
..............................................
Member
CATCHWORDS
COMPENSATION - fibromyalgia - whether contributed to in a material degree by employment – whether sequel of arm, shoulder and neck sprain – whether still suffers from arm, shoulder and neck sprain – whether incapacitated for work – whether need for psychological treatment

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 4(9), 14, 16

Re Carson and Telstra Corporation (2001) 33 AAR 351
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84
Comcare v Nichols [1999] FCA 209
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1; 144 ALR 510
Migge v Wormald Bros. Industries Ltd [1972] 2 NSWLR 29
Cavell v Repatriation Commission (1988) 9 AAR 534
Adelaide Stevedoring Co. Ltd v Forst (1940) 64 CLR 538
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
EMI Australia v Bes [1970] 2 NSWR 238

REASONS FOR DECISION

3 October 2002 Mr G A Mowbray

There are three applications before the Tribunal:

A2000/220, which is a refusal by Comcare to pay for psychology services for an accepted condition of upper right arm and shoulder sprain and neck sprain
A2000/463, a refusal by Comcare to accept a fresh claim for bilateral carpal tunnel syndrome and to amend the accepted claim to include fibromyalgia and recurrent low back pain
A2002/45, a decision by Comcare to cease liability for the upper right arm and shoulder sprain and neck sprain.

History of the Applications

On 10 June 1999 Ms Josefa Schmidt completed an application for rehabilitation and compensation for an injury sustained on 1 June 1999. She was experiencing pain in her neck and shoulder after picking up a full linen bag during her round at The Canberra Hospital. On 6 July 1999 Comcare accepted liability for "sprain of unspecified site of shoulder & upper arm (Right)" and "neck sprain".
On 18 January 2000 Comcare informed Ms Schmidt that she would need to lodge a new and separate claim if she wished to have liability for bilateral carpal tunnel syndrome considered, as it did not appear to relate to the incident on 1 June 1999.
On 28 January 2000 Comcare returned accounts submitted by Ms Schmidt for psychology services as it could not establish they were related to the accepted condition. Ms Schmidt through her solicitors requested a reconsideration of this refusal on 24 February 2000. On 30 June 2000 an independent review officer affirmed the determination of 28 January, and an application for review of this decision by the Tribunal was made on 19 June 2000. This is the subject of matter A2000/220.
On 7 June 2000 Ms Schmidt completed a new claim for "bilateral carpal tunnel syndrome", "fibromyalgia" and "recurrent low back pain". In it she states that the carpal tunnel syndrome was first noticed eight or nine months prior to 1 June 1999 and the back pain a couple of days after that date.
Comcare disallowed the new claim on 30 June 2000 on the basis that there was already an open and accepted claim for an injury on the same date. On 7 July 2000 Ms Schmidt's solicitors requested a reconsideration to amend liability to include the recently claimed conditions. An independent review officer affirmed the determination of 30 June 2000 on 23 November 2000, but on a different basis. An application for a review of this decision by the Tribunal was made on 7 December 2000. This is the subject of matter A2000/463.
Comcare advised Ms Schmidt on 3 August 2001 that it was proposing to cease her entitlements to compensation for her accepted claim unless further evidence was provided. On 11 September 2001 Comcare determined that on and from 8 September 2001 it was no longer liable to pay compensation under any provision of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Ms Schmidt's solicitors requested a reconsideration of that determination on 23 October 2001, and on 17 January 2002 an independent review officer affirmed the determination. An application for a review of this decision was made to the Tribunal on 30 January 2002. This is the subject of matter 2002/45.
The hearing for this matter was held on 16, 19 and 20 August 2002. Ms Schmidt was represented by Mr Ben Salmon QC and Comcare was represented by Mr Damien O'Donovan of Counsel. Oral reasons for decision were given on 22 August 2002 setting aside each of the decisions under review. On 3 September 2002 the Tribunal received a request for written reasons for the decision from Comcare's solicitor pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.
Background
Ms Schmidt was born on 9 September 1955 in Madrid, Spain, and came to Australia at the age of 6 years. Although she had a period of previous employment at Canberra Hospital, her most recent work at that Hospital commenced in about 1994. Her medical reports and other evidence indicate that she had suffered a number of accidents and illnesses over the years, including severe burns at the age of 14, injuries to the back, and at least two periods of depression.
The incident central to these proceedings occurred on 1 June 1999. In Ms Schmidt's compensation claim, she described it as follows:
"Doing a linen round. I tied off a full linen bag & it fell through the skip, on picking it up I felt a sharp pain in my shoulder."
Ms Schmidt attended the Accident and Emergency Department of the Hospital and was advised to have physiotherapy. She then returned to work on that day on restricted duties, until being put off work by her general practitioner on 10 June 1999. Since then she has made a number of attempts to return to work on reduced hours but without success.
Legislation
The relevant sections of the Act are as follows
"4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
"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.
…
"medical treatment" means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
…
…
"therapeutic treatment" includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…"
"14 Compensation for injuries
(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.
…"
"16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…"

Evidence

The Tribunal had before it three sets of "T-documents" lodged under section 37 of the Administrative Appeals Tribunals Act 1975 (Set 1 labelled T1 to T74; Set 2 T1 to T18; Set 3 T1 to T58), the Applicant's exhibits A1 to A9 and the Respondent's exhibits R1 to R5. Exhibit A1, the Applicant's Statement of Facts and Contentions, included a number of annexures labelled A to U. A few of these annexures contained more than one document, each of which was individually numbered, for example Annexure C2.
Oral evidence was provided by Ms Schmidt, Dr Rodgers, her former general practitioner, Dr Lawrence, her treating psychiatrist, Dr Corry, her treating specialist in rehabilitation and pain medicine, Dr Kelly, Ms Schmidt's current general practitioner, Dr Saboisky, a consultant psychiatrist and Dr McGill, a consultant rheumatologist.
Uncontentious Matters
A number of matters were not in contention. Comcare accepted that the incident of 1 June 1999 occurred. It also accepted that as a result Ms Schmidt injured her right upper arm and shoulder and her neck.
Both parties agreed that since 1999 Ms Schmidt has suffered from fibromyalgia, although there is some dispute over the precise date of onset and the cause. Fibromyalgia was accepted to be a disease as opposed to an injury simpliciter. It is also agreed that the claimed low back condition forms part of that fibromyalgia. Both parties accept that Ms Schmidt remains totally incapacitated for work.
During the course of the hearing Comcare accepted liability for the bilateral carpal tunnel syndrome for a closed period from 10 June 1999 to 17 October 2000. The underlying condition was aggravated by employment at the Hospital but this aggravation was quite unrelated to the 1 June 1999 incident.
Issues
The issues before the Tribunal are

whether Ms Schmidt suffered fibromyalgia, and if so whether she continues to suffer from it
if Ms Schmidt did suffer fibromyalgia, whether her employment contributed in a material degree to its onset
whether Ms Schmidt still suffers from the right upper arm and shoulder and neck injuries for which liability was accepted
whether Ms Schmidt is incapacitated for work
whether Ms Schmidt was in need of psychological services, and if so whether this need is ongoing
whether the bilateral carpal tunnel syndrome injury is compensable.

Consideration of Issues and Findings

"Cease liability/effects" decisions

In many "cease liability" or "cease effect" decisions made under the Act there appears to be a misunderstanding of the nature and effect of the determination that is made and of the statutory provisions relied on. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Escort stated
"49.     It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.
50.      In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.
…
55.      Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.
56.      That is to say the effect of the determination that "liability in respect of this injury ceased on and from 5 February 1995" was not a decision to "cease liability" altogether or to "cease liability" under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.
…
58. The conclusion I have reached, namely, that at its highest, Telstra's determination only ceased payment of compensation under s.16 and s.19 of the Act and did not effectively revoke the early determination to accept liability under s.14, thereby preventing further claims of compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare (1992) 39 FCR 236."
Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34] upon which Deputy President Escort relies. I agree with and adopt the views of Deputy President Escort.
In these proceedings the third matter is a cease liability decision. Mr O'Donovan said that it at least meant that all effects of the shoulder sprain had resolved, that Ms Schmidt was not entitled to further medical or incapacity payments for that sprain and that in any future claim relating to that sprain Ms Schmidt would need to demonstrate a relationship between the sprain and the medical expenses or incapacity payments sought.
I accept that the cease liability determination should be treated generally as contended by Mr O'Donovan, that is, as ceasing liability for the purposes of section 16 and section 19 of the Act consistent with the decision in Re Carson.
The burden of persuasion
It is not particularly apt or appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the "burden of persuasion" in these matters.
First, in relation to claims to establish liability for an injury or, as in this case to establish a sequela flowing from an injury, the Tribunal must be satisfied on the balance of probabilities of the existence of that sequela and that, in the case of a disease, work factors contribute to it in a material degree. A succinct statement of this is found in Comcare v Nichols [1999] FCA 209 where Justice Heerey said at [23]
"However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element."
Secondly, where claims are made for medical or therapeutic services such as those provided by a psychologist, a similar obligation lies on the Tribunal, that is, satisfaction on the balance of probabilities that the treatment relates to the injury and it is reasonable in all the circumstances.
Thirdly, where the relevant reviewable decision is one "ceasing liability" the authorities refer to an obligation on the Tribunal to be satisfied on the balance of probabilities that the particular condition has ceased. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525 Justice O'Connor and Mr Barbour spoke of an obligation to produce material supporting a change in circumstances
"In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances."
Justice Jenkinson in Commonwealth v Borg (1991) 20 AAR 299n at 307 put it in these terms
"I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist."
In Comcare v Nichols Justice Heerey said at [22]
"In the present case, Mrs Nichols was receiving compensation in respect of an injury (RSI) which had been found in 1985 to result in incapacity for work. Comcare contended in 1996 that she no longer suffered from RSI. Comcare therefore had to establish this fact. Perhaps more accurately, it was the Tribunal, as an administrative decision-maker, which had to satisfy itself that this was the case. It was so satisfied."

Nichols is consistent with the earlier authorities and is the approach I will adopt in considering the "cease liability" matter in these proceedings.

Did Ms Schmidt suffer from fibromyalgia?

It is not in dispute that at least from some time in 1999 Ms Schmidt suffered fibromyalgia. All the relevant specialists – Dr Corry, her previous treating rehabilitation and pain medicine practitioner, Dr Brook, a rheumatologist whom she consulted, Dr McGill, Comcare's consulting rheumatologist and Dr Speldewinde, Ms Schmidt's current treating rehabilitation consultant – are in agreement as is her general practitioner Dr Kelly. They also agree that she continues to suffer from this condition.
Where there is some difference of view is on the date of onset of this condition. This is due to some extent because a clearly definable organic cause for the syndrome is yet to be established and because it is diagnosed by a process of exclusion of other possible conditions.
Dr Corry reported to Dr Kelly on 27 October 1999 that
"[T]here is a fibromyalgic component." (Annexure H2)

And on 21 January 2000, again reporting to Dr Kelly, he wrote

"I think the diagnosis of post-traumatic fibromyalgia remains." (Annexure I)

A facsimile transmission dated 12 January 2000 records the contents of a discussion between the sender and Dr Corry the previous day. He is recorded as believing that "Josie is suffering from fibromyalgia" (Set 1 T47).

Dr McGill believes that Ms Schmidt's fibromyalgia is "entirely constitutional" (Set 3 T25). He therefore does not express a view about its onset.
Mr O'Donovan for Comcare asserts that the symptoms were apparent perhaps as early as four or five weeks after the 1 June 1999 incident. But precisely because fibromyalgia is diagnosed by a process of exclusion, and also because diagnosis requires the presence of a number of tender points, I do not think that Mr O'Donovan's characterisation of the evidence is correct in so far as he suggests that an early onset of fibromyalgia is evident.
In my view Dr Corry provides the best evidence on this issue. In his view it was not until October 1999 at the earliest that I can be satisfied that Ms Schmidt suffered from fibromyalgia. It is clear that Ms Schmidt suffered from fibromyalgia at least by that time and that she continues to suffer from it today. I so find.
As I have said at paragraph 16, there is no dispute that fibromyalgia is a disease as opposed to an injury simpliciter for the purposes of the Act. Both parties also agree that the recurrent low back pain for which liability is claimed is part of the fibromyalgia.
Did Ms Schmidt's employment contribute in a material degree to her fibromyalgia?
The definition of disease in section 4(1) of the Act provides
""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."
There have been numerous authorities on the phrase "that was contributed to in a material degree". In Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42 Justice Davies said at 43
"It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker's employment."
In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 the Full Federal Court said at 323; 328; 541-2
"In our opinion, it follows… that once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would not otherwise have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree… In all cases the question is whether there has been a "contribution"…
The use of the word "material" in conjunction with the words "contributing factor" in the legislation… has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."
On this issue of causation the Full Federal Court said in Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; 144 ALR 510 at 515
"Whether total incapacity results from an injury is a question of fact. This is no different from the application to a given case of the common law principles of causation in negligence cases: a "common sense" evaluation of the causal chain is required – that evaluation being made in the light of the statutory formula itself." (citation omitted)
In Migge v Wormald Bros. Industries Ltd [1972] 2 NSWLR 29 Justice of Appeal Mason, as he then was, said
"It has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of commonsense, rather than scientific or logical theories of causation…
…
The question of causation is essentially one of fact."

Justice Mason's view was subsequently approved on appeal to the High Court (Migge v Wormald Bros. Industries Ltd (1973) 47 ALJR 236).

In another context, Justice Burchett said in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 that the Tribunal's task was
"[T]o make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
This common sense approach is supported in a sense by Acting Chief Justice Rich in Adelaide Stevedoring Co. Ltd v Forst (1940) 64 CLR 538 at 563
"I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology."
Further assistance is provided in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 to which I was referred by Mr Salmon. Justice of Appeal Reynolds, who was in dissent but not on this particular point, said at 194
"Difficulty arises when an expert witness speaks only in terms of possibility in circumstances where it can be seen that he declines to draw the inference which the lay tribunal is invited to draw. It seems to me that the answer to the question which is posed in such cases begins with an understanding of the real content of the medical opinion relied upon. An expression of opinion that a condition could be or might be related to a suggested cause will have different meanings in different contexts. If nothing is known as to the aetiology of a condition or disease, no cause can be excluded as a matter of logic, and so it might be said that any suggested cause might have or could have caused it. In such case the assertion is not in the full sense an expression of expert opinion and has no probative force.
If very little is known of the relevant aetiology, a similar expression of opinion may mean that present scientific knowledge does not exclude the possibility of a causative relationship. If much is known and the knowledge is explained and expounded to the tribunal of fact, an expression of opinion which does not pass beyond possibility may be regarded as a precise and guarded scientific statement which leaves the ultimate question or probability to the tribunal to pronounce upon, having regard to all the facts."
In the same case Justice of Appeal Mahoney at 200 quoted with approval a passage from the judgement of Chief Justice Herron in EMI Australia v Bes [1970] 2 NSWR 238 at 242
"Medical science may say in individual cases, that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside the area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical evidence denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try."

Following this quotation Justice Mahoney said

"I do not read the Chief Justice to mean that, given a possible cause, the reasoning to its being an actual cause is simply "intuitive" and subject to no limitations. In such a case as the present, the question would be whether the evidence showed the connection between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind, faced with the problem of determining the question upon the evidence before it, concluding that the possible was the actual cause."

This brings me to the nub of the dispute between the parties, that is, what causes fibromyalgia and whether Ms Schmidt's employment was a material contributor.
Mr O'Donovan for Comcare submitted that both Drs Corry and McGill ruled out physical trauma as a cause. There could be no single physical cause. However, a psychological trigger could result in fibromyalgia. In Ms Schmidt's case, the 1 June 1999 incident was not itself psychologically traumatic.
Mr O'Donovan said that Dr Corry's theory was that chronic pain, that is, pain lasting at least three months, might provide the psychological environment precipitating fibromyalgia. However there was no evidence of such chronic pain. Indeed, in Mr O'Donovan's submissions, at the latest the pain had become fibromyalgia by 6 July 1999, that is approximately five weeks after the 1 June 1999 incident. Thus, the injury did not result in chronic pain, bringing on fibromyalgia, but rather the rapid onset of diffuse pain consistent with fibromyalgia. The evidence did not support Dr Corry's view that fibromyalgia resulted from chronic pain, but rather supported Dr McGill's view that Ms Schmidt suffered from fibromyalgia that was "entirely constitutional in aetiology".
Mr O'Donovan rejected both psychiatrists' opinions, Dr Lawrence's because of the inadequacy of his inquiries and Dr Saboisky's due to his failure to have a "proper appreciation of the origin of the pain". He also questioned the credibility of Dr Lawrence. He submitted that Ms Schmidt's psychological condition resulted from the fibromyalgia and not the reverse.
Mr Salmon, for Ms Schmidt, placed greater reliance on Dr Corry as Ms Schmidt's treating specialist and also on the psychiatric evidence, especially that of Dr Lawrence. He submitted that as a result of the 1 June 1999 incident Ms Schmidt suffered not only pain, but also an associated significant loss in self esteem and self worth due to the inability to continue in her full-time work – that is, manual labour – which was the source of that self worth and her confidence.
As a result of her injury Ms Schmidt was unable to take up a new job which was available to her and to therefore remove herself from a situation of some distress in her current employment. This precipitated an adjustment disorder with depressed mood, which then provided the psychological environment that contributed to the onset of fibromyalgia.
In my view, the evidence of Dr Corry is critical. In fact Mr O'Donovan praised him as an excellent witness. In his report of 23 February 2000 (Set 1 T55) he said
"Because of the generally widespread nature of her pain complaints following a relatively minor injury, the possibility of diagnosis of fibromyalgia was raised at my assessment with her on 21 October 1999. Further investigation in the form of routine blood tests and thyroid function tests were performed, but these were within normal limits. I last reviewed her on 10 February 2000. At this time she continued to complain of widespread musculoskeletal pain complaints and despite normal investigation, I concluded that the diagnosis of post-traumatic fibromyalgia was likely."
In his report of 4 September 2000 (Set 2 T12) Dr Corry said
"Conservative treatment has been maintained and although there has been initial improvement, more recently her symptoms have become generally more widespread and she has developed pain and disability both with non-specific in muscle tissue, but also within larger weight bearing joints. Further investigation has not revealed the presence of any inflammatory arthritis and a diagnosis of fibromyalgia has been made. Fibromyalgia is a generalised musculoskeletal pain complaint of uncertain aetiology. There is little evidence that the development of fibromyalgia is a consequence of physical trauma, but there is good evidence that it can be a consequence of psychological trauma. I would therefore accept the injury of 1 June 1999 and its consequences as causal. Fibromyalgia responds poorly to treatment and the prognosis for full recovery is not good."
In his oral evidence Dr Corry qualified the above opinion about physical trauma not causing fibromyalgia. He referred to recent studies that suggested physical trauma may "possibly" result in fibromyalgia. In all his evidence, despite at one point agreeing that if Mr O'Donovan was correct that there was no three month period of chronic pain this might weaken his conclusion, he consistently asserted that "the injury of 1 June 1999 and its consequences" were causal to the fibromyalgia.
Dr McGill's views are summarised in his report of 19 March 2001 (Set 3 T25)
"She today reported symptoms typical of depression, anxiety and fibromyalgia (i.e. the presence of widespread musculoskeletal pain in the absence of any physical disorder to explain that pain).
…
Her fibromyalgia is entirely constitutional in aetiology. I think it reflects her depression/anxiety. I do not believe that her work, including the episode in June 1999, has had any influence on her fibromyalgia and I think her current situation in that regard would have been the same regardless of her work activities…
The aetiology of her depression/anxiety is best commented upon by those with expertise in psychiatric matters. I felt however it was clear from the history she provided that personal issues such as the illness and subsequent death of her father have displayed a substantial role. I do not believe that her psychological problems are the result of any physical disorder."
Dr McGill confirmed his views in his oral evidence making it clear that he did not accept that apart from the compensation setting there was any such condition as post-traumatic fibromyalgia. He had never seen it in the clinical setting. However he conceded that the causation of any depression or anxiety was not something within his expertise, rather it was a question for psychiatrists. He also conceded that depression could bring on fibromyalgia.
Dr Lawrence, Ms Schmidt's consultant psychiatrist, reported
"Mrs Schmidt is suffering from an Adjustment Disorder with Depressed Mood (DSM IV 309.0). This disorder is the development of emotional or behavioural symptoms in response to an identifiable stressor occurring within 3 months of the onset of the stressor. The symptoms are clinically significant and result in significant impairment in social or occupational functioning.
…
In my view her psychiatric condition is attributable to the workplace incident on the 1st June, 1999. Although it occurred in the context of an unpleasant and stressful work situation pertaining her relationship with her supervisor it appears that this accident has prevented her from taking up work anywhere else. As noted above she was actively seeking other employment and apparently had the possibility of a new position when this accident occurred. She feels that this has been a major event in her life in that it has prevented her from taking up other work which may have been more satisfactory. Mrs Schmidt clearly states that she would have been able to take up other work had she not had this accident and thus her deep feeling of resentment centres around the accident itself.
…
In my view the work injury on 1st of June, 1999 was a contributing factor to her depressed condition. As I mentioned above it has been in her terms a major event in her life and has changed her life. Whereas before she was an active contributing conscientious and competent person in her work both in the hospital setting and in the home she is now disabled by chronic pain. This pain increased when she attempts to return to work and makes it very difficult for her to sleep well at night and has lead [sic] to a considerable loss of her self-worth and self confidence." (Exhibit A6)
Dr Saboisky, the consulting psychiatrist called by Comcare said in his report
"In respect to her current psychiatric condition I found no real evidence to support a diagnosis of depression. She is however on the maximum dose of Luvox.
She does give a history of being depressed because of her disabilities and this is supported by Dr Kelly, Dr Corry and Val Gould who saw her initially in January 2000.
…
It is difficult to judge whether the psychiatric condition that she had after the injury at work was caused by the incident or related to ongoing difficulties that she had from the past. Given the fact that the work injury was so trivial I suspect there was a lot of functional overlay regarding her complaints of pain.
…
On the balance of probabilities I think that work was a contributing factor to her depressed mood but there clearly were other factors at play." (Emphasis added)

I note that in oral evidence Dr Saboisky agreed that the diagnosis made at the beginning of this passage was on the basis of his assessment at the time of his consultation with Ms Schmidt on 18 August 2001.

I have also examined carefully the other medical and paramedical evidence presented to the Tribunal.
As I have said earlier, I regard Dr Corry's evidence as crucial. He was Ms Schmidt's treating rehabilitationist. He is clearly eminent in his field. He saw Ms Schmidt on numerous occasions, commencing in October 1999. His written and oral evidence was balanced, objective and well reasoned. As Mr O'Donovan said, he was an excellent witness. Mr O'Donovan referred to some "slippage" in Dr Corry's evidence, a comment that I do not accept.
Dr McGill is also clearly eminent in his field, but he saw Ms Schmidt on but one occasion. He conceded that fibromyalgia can be triggered by psychological factors and he conceded the presence of such factors was not for him but for a psychologist or psychiatrist.
I accept some of the criticisms Mr O'Donovan made of Dr Lawrence who I did not find a totally satisfactory witness. But in essence they do not detract from his clear conclusion which is supported to some degree by Dr Saboisky.
Taking the evidence as a whole, I generally accept Mr Salmon's submissions and with some modification the conclusions of Dr Corry. To the extent that there is conflict between Dr Corry and Dr McGill I prefer Dr Corry's evidence for the reasons given above.
I therefore find on the balance of probabilities that on 1 June 1999 Ms Schmidt suffered an injury to her right upper arm and shoulder and her neck at work. This led to pain and a significant effect on Ms Schmidt's self esteem and confidence, resulting in a psychiatric condition of adjustment disorder and depressed mood. This in turn triggered fibromyalgia, a condition that she continues to suffer.
I am confidently satisfied on the balance of probabilities that Ms Schmidt's fibromyalgia was contributed in a material degree by her employment, and specifically the 1 June 1999 incident. This fibromyalgia is therefore a sequel to the condition for which Comcare accepted liability on 6 July 1999.
Does Ms Schmidt still suffer from a right upper arm and shoulder sprain and neck sprain – the original accepted condition?
Although Mr O'Donovan asserted on a number of occasions without specific references to the evidence that this condition had resolved, my examination of the evidence has raised some doubts in my mind

Dr Andrews reported on 28 September 1999 that Ms Schmidt's neck pain "seems to have resolved" (Annexure G1)
Diana Howell, a physiotherapist, reported on 7 October 1999 that the right shoulder and arm continued to trouble Ms Schmidt, although less than some other parts of the body (Set 1 T31)

Dr Corry on 15 October 1999 referred to cervical symptoms as still being present but now relatively minor (Annexure H1)
IRS Total Injury Management visited Ms Schmidt at home on 6 December 1999, and recorded her as saying the shoulder and neck injury were causing the most pain (Set 1 T43)
Dr Mills, who examined Ms Schmidt on 13 December 1999, said in his report that although he could not exclude a soft tissue injury it was likely her neck and right shoulder symptoms would be of a temporary nature (Set 1 T44). The report does not say the symptoms had resolved
Dr Corry says in his report of 23 February 2000 that Ms Schmidt's neck pain seemed to gradually resolve (Set 1 T55). However this is said in discussing the history of the condition, rather than observing it as his own conclusion. In fact I think it is based on Dr Andrews' earlier conclusion
Dr Gordon's report of 16 May 2000 appears to contain reports of continuing pain in the original area (Annexure N)
Dr Brook report on 4 October 2000 records Ms Schmidt as saying that she had never really recovered. However Dr Brook also says there is no evidence of joint, muscles, skin or nervous system disease (Annexure R)
Dr McGill on 19 March 2001 concluded there were no ongoing problems from the original sprain (Set 3 T25).

Ms Schmidt's evidence when questioned directly by the Tribunal was that sharp pain or spasms affected her neck, shoulder and the back of her head, which she distinguished from the flu-like aches in joints elsewhere. The two types of pain could occur together or separately.
Dr Kelly in his report of 9 September 2000 (Set 2 T13) said
"It is my opinion that Ms Schmidt currently suffers:
a. soft tissue neck/right shoulder/arm strain injuries
b. cervical facet joint strain injury
…"

In oral evidence Dr Kelly said that Dr Andrews was currently investigating facet joint problems.

Dr Kelly also gave evidence that a soft tissue injury could resist treatment. The response of Ms Schmidt's injury had been variable or intermittent, rather than failing to respond. As well as having specific trigger points associated with fibromyalgia, Ms Schmidt had other soft tissue pain. Dr Kelly referred to two separate regions as being affected. He was unsure whether the conditions were entirely separate or whether the soft tissue injury had been overtaken by or evolved into fibromyalgia. He considered the question somewhat academic.
As I noted earlier at paragraph 26 and following, the test in ceasing liability is that I must be satisfied on the balance of probabilities that the condition no longer exists (Comcare v Nichols). On the evidence before me, I am not so satisfied.
Is Ms Schmidt incapacitated for work?
Section 4(9) of the Act provides
"A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened."
The vast bulk of the evidence before me is that Ms Schmidt is so incapacitated by fibromyalgia and her associated work-related conditions that she is incapable of engaging in any work. There is some qualification or disagreement with this in the reports of Dr McGill and Dr Saboisky. Dr McGill says she is not physically incapacitated and Dr Saboisky says that apart from her complaints of pain she could go back to work. However Mr O'Donovan conceded that Ms Schmidt is totally incapacitated for work in terms of section 4(9)(a). I so find.
Is Ms Schmidt in need of psychological treatment services?
Section 16(1) provides
"Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment."
Medical treatment is relevantly defined in section 4(1) as
"(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner"

And therapeutic treatment is defined as including

"[A]n examination, test or analysis done for the purposes of diagnosing or treatment given for the purposes of alleviating an injury."

In matter A2000/220 Comcare refused claims for professional psychological services provided on 30 September 1999, 1, 7 and 20 October 1999 and 12 November 1999. Psychological services in this case clearly involve therapeutic treatment. They were obtained at the direction of a legally qualified medical practitioner, Dr Kelly (see Annexures D and F). There is abundant evidence that this treatment relates to the injury and that it was reasonable to obtain such treatment in the circumstances. I so find.
I further find that ongoing psychological treatment at the direction of a legally qualified medical practitioner is reasonable for the alleviation of Ms Schmidt's condition. I refer especially to the reports of Dr Kelly and that of Dr Speldewinde (Exhibit A5).
Is Ms Schmidt's bilateral carpal tunnel syndrome compensable?
Comcare has conceded this during the hearing for a closed period from 10 June 1999 to 17 October 2000. I am satisfied that the evidence supports this concession.
Conclusions
On all the material before me, I conclude

that since at least October 1999 Ms Schmidt has suffered from fibromyalgia and she continues to suffer this condition today
that Ms Schmidt's fibromyalgia was contributed to in a material degree by her employment, specifically the incident of 1 June 1999
that Ms Schmidt continues to suffer from the right upper arm and shoulder and neck sprain for which liability was accepted on 6 July 1999
that Ms Schmidt remains incapacitated for work in terms of section 4(9)(a)
that Ms Schmidt had and continues to have a requirement for psychological services
that Ms Schmidt's bilateral carpal tunnel injury is compensable for the period 10 June 1999 to 17 October 2000.

Decisions

The reviewable decisions in each of these matters will be set aside. These matters are remitted to the Respondent for reconsideration in accordance with the direction that the Respondent give effect to the findings of the Tribunal as set out in these statements of reasons. The Tribunal orders the respondent to pay the applicant's costs in these proceedings as agreed or taxed.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:         .....................................................................................
  Associate
Dates of Hearing  16, 19 and 20 August 2002
Date of Decision  22 August 2002
Date of Written Reasons         3 October 2002
Counsel for the Applicant        Mr Ben Salmon QC
Solicitor for the Applicant         Mr Bill McCarthy, Bradley Allen
Counsel for the Respondent    Mr Damien O'Donovan
Solicitor for the Respondent    Ms Andrea Hanley, Phillips Fox