Sutherland and Comcare (Compensation) - [2024] AATA 3609

Sutherland and Comcare (Compensation) [2024] AATA 3609 (10 October 2024)
Division:GENERAL DIVISION
File Number(s): 2023/5695
Re:Rebecca Sutherland
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:10 October 2024
Place:Canberra

The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 and makes a decision in substitution that Comcare remains liable to pay compensation to Ms Sutherland under the Safety, Rehabilitation and Compensation Act 1988.
........[SGD]...........
Member W Frost
Catchwords
WORKERS’ COMPENSATION – sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 – definition of ‘injury’ under subsection 5A(1) SRC Act – ailment - employment ‘contributed to, to a significant degree’ under subsection 5B(1) – disease suffered by an employee – medical treatment required – incapacitated – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 ss 43, 37, 42C
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 19, 67
Cases
Comcare v Power (2015) 238 FCR 187
SRGF and Comcare [2024] AATA 1818
REASONS FOR DECISION
Member W Frost
10 October 2024
INTRODUCTION

The Applicant, Ms Rebecca Sutherland, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision made by the Respondent, Comcare, affirming a determination that it had no present liability to pay her compensation for medical treatment or incapacity under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act1988 (SRC Act), in relation to her previously accepted condition of fibromyalgia.
The Tribunal has considered all of the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the joint hearing bundle and the parties’ evidence and submissions.[1] For the reasons that follow, pursuant to subsection 43(1)(c) of the AAT Act, the Tribunal sets aside the decision under review and in substitution makes a decision that Comcare continues to be liable to pay compensation to Ms Sutherland pursuant to the SRC Act.
[1] Exhibits 1 and 2.
ISSUES
The issues for the Tribunal to decide in this proceeding were:
(a)whether Ms Sutherland suffered an ‘ailment’ as defined in the SRC Act;
(b)if so, whether Ms Sutherland’s ‘ailment’ was ‘contributed to, to a significant degree’, by her employment with the Commonwealth, as required by subsection 5B(1) of the SRC Act in order to constitute a ‘disease’; and
(c)if so, whether Ms Sutherland continued to require medical treatment and was incapacitated for work as a result of that condition.
BACKGROUND
Ms Sutherland is 52 years old.[2]
[2] Exhibit 1, page 7.
On 10 September 2018, Ms Sutherland commenced employment as an executive assistant on a full-time, but non-ongoing, basis with the Department of Communications and the Arts (Department).[3]
[3] Ibid., page 13.
In or around October 2018, Ms Sutherland completed the Department’s ‘Incident/Near Miss’ form and recorded that glass entry gates at her workplace ‘slammed on me’ on 26 October 2018, resulting in a ‘[b]ruise on top of right hand and bump. Sore left foot. Left knee a little sore too’.[4] The nature of the ‘injury/illness’ was described by Ms Sutherland to be a ‘[b]ruised and swollen right hand (less [sic] foot and left knee less injured)’.[5]
[4] Ibid., pages 15-18.
[5] Ibid., page 15.
On 30 October 2018, a workstation assessment was performed for Ms Sutherland, which relevantly reported that she:[6]
experienced a workplace injury on the Friday the 26 October 2018. Ms Sutherland was struck by the turnstile gait [sic] when entering the building. Following this Ms Sutherland experienced extensive amounts of ‘full body joint’ pain as well as localized symptoms affecting the areas where the turnstile struck her. Ms Sutherland has seen her General Practitioner for assistance with her symptom management.
[6] Ibid., page 19.
On 1 November 2018, Ms Sutherland first consulted her general practitioner regarding the workplace incident.[7]
[7] Exhibit 1, page 36 and Exhibit 2, page 144.
On 12 November 2018, an ‘Initial Needs Assessment Report’ was provided to the Department in relation to Ms Sutherland, which stated that:[8]
Ms Sutherland reported to Rehab Management that on Friday the 26 October 2018 she incurred a workplace injury when exiting the Nishi building on the ground floor. Ms Sutherland reported after swiping her access pass on the gate, she walked through the turnstiles when the glass gate closed on her. Ms Sutherland reported that the gate struck the back of her right hand, left foot and knee on impacted [sic]. Ms Sutherland reported that there was a significant jolt to her body as she was struck by the gate. Ms Sutherland reported she continued about her work schedule however, did notice a significant increase in symptoms of pain and throbbing as her adrenalin from the incident subsided. Ms Sutherland reported that her right forearm and wrist symptoms were significant and resulted in her unable to use this limb for most tasks. Ms Sutherland reported that the work Health and safety team assisted with providing her with an ice pack and assisted her in returning to Goulburn via Taxi. Ms Sutherland advised that she attended Goulburn Hospital to review her right arm as her reported numbness and tingling was of concern. Ms Sutherland advised that a x-ray was taken and confirmed that no fracture was present and was advised to take Ibuprofen and Panadol as required with the supplementation of an ice pack to help manage her symptoms.
Ms Sutherland reported to wake during the early hours of the 27 October 2018 experiencing full body aches and pains as well as significant headache. Ms Sutherland advised that her symptoms progressed to included aches and tightness in her shoulders, neck, upper back and lower back. Ms Sutherland advised that the symptoms in her foot have decreased and she is currently wearing flat shoes. Ms Sutherland reported that over following weekend she spent time resting to manage her symptoms however, little improvement in symptoms was made.
Ms Sutherland advised that she returned to work on Monday 29 October 2018 at her pre injury duties with frequent rest breaks and was mindful of not overreaching as this exacerbated her symptoms. Ms Sutherland reported that she had been avoiding some strenuous tasked and had noticed that prolonged use of the phone without the use of a head set had increased pain and discomfort in her neck. Ms Sutherland reported that whilst she has not changed her duties she has noticed difficulties managing her workload.
Ms Sutherland reported during the initial assessment she will review with her General Practitioner Dr Ruwantha Wijetunga on 3 November 2018 for further guidance as her symptoms have not improved.
[8] Exhibit 1, page 25.
On 21 December 2018, a Monthly Progress Report from Ms Sutherland’s rehabilitation manager noted that she ‘advised that her pre injury duties are manageable, though she is constantly experiencing pain symptoms’.[9]
[9] Ibid., page 32.
On 9 January 2019, Ms Sutherland lodged a Workers’ Compensation Claim with Comcare in relation to a condition she described as ‘[i]nflammation of my joints that causes pain and that is a result of being hit by a glass security gate’ at work on 26 October 2018.[10] The claim form noted that the affected body parts were ‘[e]very joint in my body, I ache in all of my joints all the time’.[11] In response to the question about what happened and how she was injured, Ms Sutherland responded as follows:[12]
I swiped my security pass, the glass security gate opened and I went to walk through when it shut and hit my right hand and left foot. My knee was sore too but I don’t think the gate hit my knee – maybe it twisted a bit on the impact. Initially the pain was mainly in my hand. I woke up at 4am the following morning in severe pain where every joint in my body was painful. This has continued without break to the present day. I have flare-ups of pain to the point that I can barely walk.
[10] Ibid., pages 7-12.
[11] Ibid., page 8.
[12] Ibid.
On 11 January 2019, a representative of the Department confirmed that, following review of the available video of the incident, they were satisfied that ‘an injury was sustained’ by Ms Sutherland as a result of that workplace incident.[13]
[13] Ibid., page 34.
On 17 January 2019, Dr Wijetunga, General Practitioner, provided a requested report to Comcare detailing that:[14]
Rebecca presented to consult me first on the 1.11.2018, stating that an automated glass door closed on her striking her right wrist and left foot on the 26.10.2018 at her work place. Immediately post presented to local hospital where she had some xrays which did not reveal any injury and discharged home with an initial work cover certificate as per patient with nil need for analgesia.
Rebecca states to me at the initial consult she did not have any concerns with her left foot and some mild pain in her right wrist. States the next morning after the date of the injury she had pain in her whole body and in all her joints and used some Panadol for pain relief.
On my examination there were nil joint swelling redness or tenderness to note in her left foot. There was some bruising in her right wrist which was settling down 6 days post impact. She did not complain of any other joint pains during her first visit. I commenced her on celebrex for analgesia.
She presented to see me again on the 13.11.2018 complaining of intermittent joint pains and stating she was unable to go to work as a result of same. States some days she was symptom free and other days she was feeling unwell with pain and stiffness in her joints mainly in her spine, shoulders, knees. She also mentioned she was stressed at work with a large workload which was not considered in view of her injury which was adding to her stress. I have not seen the patient since.
[14] Ibid., page 36.
On 21 January 2019, Comcare accepted Ms Sutherland’s claim for compensation under section 14 of the SRC Act for the condition it described as ‘contusion – wrist (right)’.[15]
[15] Ibid., pages 40-42.
On 8 February 2019, Dr Teddy Quan, General Practitioner, referred Ms Sutherland to Dr Raymond White, Rheumatologist, in relation to ‘suspected fibromyalgia’, which ‘started after she experienced blunt contact with security gait [sic] to her right hand and left foot. She then started to get progressive polyarthralgia’, limiting her ability to work.[16]
[16] Ibid., page 43.
On 11 February 2019, Ms Sutherland informed the Department that Dr Quan had referred her to Dr White and advised her ‘to work three days a week at restricted hours (finishing at 3pm each day) until reviewed again.[17]
[17] Ibid., page 44.
On 26 March 2019, Dr Tony Kostos, Rheumatologist, provided a requested report to Comcare following his assessment of Ms Sutherland on 20 March 2019, which relevantly stated that:[18]
Fibromyalgia is a chronic pain condition that is usually characterised by widespread pain and tenderness but her examination today did not reveal any tenderness at all.
You also indicated that she also has a “newly-diagnosed chronic nerve condition” but there clearly is no chronic nerve condition.
Furthermore there are no abnormalities with her right hand and left foot related to the incident as described.
In considering all of this information it may be that the most likely diagnosis is a somatic symptom disorder but this would need to be confirmed by a psychiatrist.
…
There are no constitutional factors that have contributed to any physical condition.
…
Pain disorders are frequently associated with psychological and social factors with the role of inherent personality traits, previous life experiences, attitudes and beliefs and the adaptability to cope with anxiety and stress become increasingly appreciated.
[18] Ibid., pages 52-59.
On 29 March 2019, Dr Quan responded to a set of questions from Comcare relevantly as follows:[19]
I diagnosed her with Fibromyalgia based on her symptoms, examination, negative blood tests and the criteria outlined by the American College of Rheumatology Diagnostic criteria for Fibromyalgia 2010.
Ms Sutherland presented to me with widespread joint pains in her back, fingers, wrists, shoulders and hips. She reported that these polyarthralgia symptoms started after her blunt trauma to her right hand and left foot sustained from a security gate closing on her on the 26/10/2018. Ms Sutherland reported to me she was painfree prior to this work incident.
…
Her symptomatology met the diagnostic criteria for Fibromyalgia based on the internationally accepted criteria from the American College of Rheumatology 2010. She has widespread pain, chronic symptoms for more than 3 months and there was no other disorder that would explain her symptoms, for example she was not depressed and her blood tests did not suggest an inflammatory arthritis.
Ms Sutherland’s symptoms may not have been present when seeing Dr Kostos as she has been on endep 25mg at night, and she had started a mild progressive home exercise program to assist in the treatment of her Fibromyalgia. Her symptoms are cyclical in nature, which could mean that her symptoms were not present whilst seeing Dr Kostos. The ‘older’ criteria used to diagnose Fibromyalgia was from the year 1990, which suggests that muscular [sic] ‘trigger points’ be used for diagnosis, but in clinical practice, many patients with Fibromyalgia may not have triggers points or painful movement. This was the reason why the American College of Rheumatology, updated their diagnostic criteria for Fibromyalgia in 2010, which doesn’t require ‘triggers points’ in the diagnosis of Fibromyalgia.
[19] Ibid., pages 61-62.
Also on 29 March 2019, Ms Sutherland’s non-ongoing contract with the Department ended and her employment ceased.[20]
[20] Ibid., pages 67-68 and 82-83.
On 4 April 2019, following an assessment of Ms Sutherland, Dr White, Rheumatologist, reported to Dr Quan that he agreed ‘that the clinical picture is consistent with fibromyalgia’.[21]
[21] Ibid., pages 69-70.
On 23 April 2019, Comcare determined that it had no present liability under the SRC Act for Ms Sutherland’s accepted condition of ‘contusion of right wrist’ and also declined liability for her ‘claimed condition fibromyalgia’ under section 14 of the SRC Act.[22] Comcare was not satisfied on the available evidence that Ms Sutherland then suffered from either condition as a result of the workplace incident in October 2018.[23] While Comcare accepted that Ms Sutherland suffered from fibromyalgia, it was not satisfied, on the balance of probabilities, that the condition was causally connected to the workplace incident.[24]
[22] Ibid., pages 72-74.
[23] Ibid.
[24] Ibid.
On 6 June and 12 July 2019, following Ms Sutherland’s request for reconsideration, Comcare separately affirmed its determination denying liability under the SRC Act for medical expenses and incapacity payments for her wrist condition and in relation to her ‘newly reported condition of fibromyalgia’.[25] Most relevantly, Comcare found that there was ‘insufficient medical evidence to confirm a diagnosis of fibromyalgia’.[26] Ms Sutherland applied to the Tribunal for review of those decisions (2019 Proceedings).
[25] Ibid., pages 80-94.
[26] Ibid., page 91.
On 2 August 2019, Dr Milton Cohen, Specialist Pain Medicine Physician and Rheumatologist, following assessment of Ms Sutherland on 18 July 2019, reported to Dr Quan that there were ‘no features of neurological or rheumatological disease or other’.[27] In Dr Cohen’s opinion, Ms Sutherland ‘does not fulfil criteria for “fibromyalgia”, which in any event is not a helpful label in my view’, the ‘main features of her current syndrome are variable arthralgia, decreased endurance for activity and cognitive dysfunction’, and Ms Sutherland’s condition was ‘probably best labelled as an acute somatic stress response with no dire or threatening features’.[28]
[27] Ibid., pages 95-96.
[28] Ibid., page 96.
On 14 November 2019, following an assessment of Ms Sutherland on 12 November 2019, Associate Professor David Champion, Rheumatologist, provided a report to her solicitors which relevantly stated that:[29]
Ms Sutherland presented in a reasonable and straightforward manner giving me no reason to doubt her integrity.
It is important to record that Ms Sutherland was feeling and functioning well up until the incident of 26 October 2018.
…
There was no outstanding single risk marker for chronic widespread pain or fibromyalgia but there were a number of points in her history prior to October 2018 which could well have had a cumulative effect…I mentioned two weeks prematurity, rhesus mismatch with her mother at birth requiring humidicrib care and blood transfusion. She probably had iron deficiency. There was a history of infectious mononucleosis followed by fatigue, but it probably was not profound or protracted. She has had lifelong dysmenorrhoea. She was somewhat overweight. There was also a history of brief low back pain, but I am not sure that that was relevant. Considering these minor risk markers collectively, she probably was at increased risk of a chronic widespread pain disorder and fibromyalgia precipitated by trauma.
In my very extensive experience of responses to injury, it is unusual for a focal injury, such as occurred on 26 October 2018 and which was well documented, to be followed rapidly (the early hours of the next morning) by a widespread pain disorder which ultimately became chronic. There was no indication that she had any infective or inflammatory cause of those early widespread pain symptoms. Clearly there was no other precipitating influence than the trauma. One might have expected a traumatic incident to be accompanied by post-traumatic stress when it appears to have precipitated a widespread pain disorder, but Ms Sutherland does not acknowledge such initial significant emotional/stress response.
Notwithstanding how uncommon it might be for a focal injury to be followed by widespread pain disorder which became chronic, this is what happened. The most likely interpretation is that, with her vulnerability, the pain experience, especially in her right hand and wrist, precipitated a major response of central sensitization, also with impairment of descending pain modulation (however the latter point can only be speculation based on research publications since it cannot be readily tested during a consultation). Chronic widespread pain and the fibromyalgia syndrome have been described as, in some cases, a primary pain syndrome. Since there was a painful injury as a precipitating factor, her illness cannot be attributed solely to a primary pain syndrome but rather it occurred in a person who must have had high vulnerability. The clinically assessable risk markers for such vulnerability cannot include genetic influences and no doubt there were other factors of relevance that my history taking could not pick up. I can only assume that she had really high-level vulnerability including genetic or other factors that we are unable to discern. The question will follow as to whether she would have developed a chronic widespread pain disorder and met criteria for fibromyalgia syndrome in the absence of such traumatic precipitating event. Maybe, but one cannot know the answer to that question.
I share the reservation expressed by my colleague, Professor Cohen, about application of the label “fibromyalgia” which can cause obfuscation and be inferred dismissively and inappropriately as “idiopathic”. He preferred to give a descriptive interpretation: variable arthralgia (I suggest that her pains are not just arthralgia but are in wider distribution), decreased endurance for activity and cognitive dysfunction augmented by her perplexity and inability to work (adding appropriately that she used to define herself by her work). Nevertheless, since the diagnosis of fibromyalgia syndrome has been made by Dr Quan and supported by Dr Raymond White, rheumatologist, I acknowledge that the current diagnostic criteria were met and the somatosensory test findings as described in the examination, particularly the responses to repetitive deep pressure stimuli at the pain threshold, permit inference of widespread central sensitisation and do support the diagnosis of a chronic widespread pain syndrome and its derivative fibromyalgia syndrome. As the sole identifiable precipitating factor, the traumatic incident on 26 October 2018 must be regarded as a substantial causal influence on her initial and on her continuing symptoms and disability. The cognitive impact, no doubt worsened by impaired sleep, is probably greater than one would usually expect for fibromyalgia syndrome of this mild to moderate severity.
[29] Ibid., pages 97-108.

On 3 February 2020, Professor Peter Youssef, Rheumatologist, provided a report to Comcare, following examination of Ms Sutherland on 28 November 2019, which relevantly stated as follows:[30]
Ms Sutherland fulfils some of the 2010 American College of Rheumatology preliminary diagnostic criteria for fibromyalgia which do not require a tender point examination. She has widespread pain in multiple areas and reports sleep and cognitive disturbances. However, there are parts of her presentation that are not consistent with this condition such as the intermittent limp and the use of a walking stick in the absence of any objective evidence of a musculoskeletal or neurological condition that would require the use of an aid. This finding is not consistent with an organic disease. Also, her alleged impairment is out of proportion to any physical disability. In order to diagnose fibromyalgia, there must be the absence of another condition that explains the pain. It is my opinion that secondary gain may be a significant driver in this presentation for reasons that I will outline below.
Firstly, I cannot explain the development of Ms Sutherland’s widespread pain on the basis of the injuries sustained on 26 October 2018 or another physical condition, even though there is a strong temporal relationship between the injuries and the development of her more widespread symptoms. I have seen many hundreds of patients with fibromyalgia but have never seen a patient who developed this condition within 24 hours of a minor injury. Dr Champion documents that in his experience, it is unusual for a focal injury that was well documented to be followed rapidly by a widespread pain disorder which ultimately becomes chronic.
Furthermore, if her injuries were the cause of the chronic widespread pain in such a rapid fashion, the mechanism involved would require that nociceptive afferents due to tissue damage caused by the injuries would result in increased synaptic transmission at somatosensory neurons in the dorsal horn of the spinal cord causing central sensitization, initially at the level of injuries, with spreading to other parts of the spinal cord causing the experience of pain in other parts of the body. In that case, one would expect her to have continued to experience pain in the injured areas, even after healing of the physical injury because central sensitization at the level of the injury is required before spread. This was not the case with Ms Sutherland. The notes of the treating doctors document healing of the injuries and the absence of symptoms and signs in the injured areas following healing. Also, I found no allodynia or hypersensitivity over the injured sites. In conditions such as complex regional pain syndrome type 1 (also known as reflex sympathetic dystrophy) which are well described after minor trauma and in which central sensitization may play a role, the symptoms and signs occur at the site of the injury. I cannot explain how the injuries in the right hand (lower cervical dermatomes C6-8) and in the left foot (lower lumbar dermatomes L5/S1) would cause shoulder pain (C4, C5 dermatome), generalised neck and back pain (multiple levels) due to central sensitization without evidence of central sensitization at the level of the injuries.
There is controversy as to whether physical trauma can cause fibromyalgia. It is my opinion that there is no conclusive evidence that fibromyalgia is due to trauma.
…
It is my opinion that the nature of this presentation, the relatively minor injuries sustained and the absence of objective evidence of a significant physical musculoskeletal disorder at any time following this injury strongly raises the possibility of secondary gain impacting significantly on the symptoms and the overall presentation. An assessment by a psychiatrist would help determine whether this is the case.
…
The presentation is very unusual. The rapid onset of widespread symptoms despite the absence of significant injury, the biological implausibility of her presentation, the inconsistency in gait and the alleged disability out of proportion to any impairment strongly raises the possibility of secondary gain.
[30] Ibid., pages 109-169.
On 11 May 2020, following a review of the available material, Professor Geoffrey Littlejohn, Rheumatologist, provided a report to Comcare which relevantly stated that:[31]
[31] Ibid., pages 170-184.
Based on the available information, I believe Ms Sutherland meets the criteria for fibromyalgia. She fulfils the American College of Rheumatology 2010/11 criteria for fibromyalgia. I cannot determine whether she has at some time fulfilled the 1990 American College of Rheumatology classification criteria. This demands there to be abnormal tenderness using digital palpation under pre-specified conditions at 11 or more of 19 prescribed bodily sites. This examination has not been recorded by any of the medical examiners in the documents you have provided. I do note, however that many of the examiners noted abnormal tenderness in different regions at different times.
…
The 2010/11 criteria are patient’s self-report and do not require medical evaluation of the symptoms.
…
Based on the information I have before me, I believe Ms Sutherland’s fibromyalgia relates to the accident which occurred on 26 October 2018. Significant symptoms of fibromyalgia began several hours after the incident in a person who did not have pre-existing symptoms of fibromyalgia. I believe this incident contributed to a significant degree to her developing fibromyalgia.
I cannot segment the factors from employment-related and personal/constitutional. Fibromyalgia is often triggered by a specific event or events. These can include physical trauma, illness, or emotional distress. Some patients are more vulnerable to the effect of triggers than others, and this represents a background constitutional or personal factor. However, without the trigger in such persons there may never be development of fibromyalgia. In this instance, I believe the trigger to developing fibromyalgia was the injury.
…
I believe the accident contributed to a significant degree to her developing this condition.
…
My opinion would be the diagnosis in this lady is fairly straightforward. A key issue by some examiners was their lack of finding abnormal tenderness on examination. Tenderness can fluctuate in patients with fibromyalgia and some people are not as tender as others even though they have the mechanism of fibromyalgia giving rise to other symptoms.
The rapid onset of the condition has also been commented on. Fibromyalgia can occur quickly after a triggering event, as has happened here.
I have enclosed a number of articles which summarise literature in different areas related to my report above, including discussion of criteria and diagnosis, current management, mechanisms and some comments on injury associated fibromyalgia.[32]
[32] The articles accompanying Professor Littlejohn’s report were not enclosed with the copy of the report contained in the Tribunal documents lodged in this proceeding and were therefore not before the Tribunal.
On 3 June 2020, the Tribunal made a decision by consent in the 2019 Proceedings.[33] In accordance with subsection 42C(2) of the AAT Act, the Tribunal affirmed Comcare’s decision of 6 June 2018 regarding it having no present liability for Ms Sutherland’s wrist condition, but set aside Comcare’s decision dated 12 July 2019 declining liability in relation to fibromyalgia and, in substitution, decided that:[34]
Ms Sutherland suffered ‘fibromyalgia’ (Injury) being a disease that was significantly contributed to by her employment with the Department of Communications and the Arts, deemed to have been sustained on 1 November 2018 (the date of first medical treatment). Comcare is liable to pay compensation to Ms Sutherland, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of the Injury.
[33] Exhibit 1, pages 91-92.
[34] Ibid.
On 27 July 2021, following assessment of Ms Sutherland on the same date, Dr Romil Jain, Specialist Pain Medicine Physician, reported to Dr Quan that ‘I believe Rebecca has generalised body pain following a work related injury with a significant component of central sensitisation’.[35]
[35] Ibid., pages 231-232.
On 7 September 2021, Mr David Guthery, Clinical Psychologist, provided a report to Comcare following 10 sessions with Ms Sutherland over a period of one year, and noted that she was ‘assessed as having an Adjustment Disorder with depressed mood…related to the sequalae of her injury’.[36]
[36] Ibid., pages 235-236.
On 30 November 2021, following an assessment of Ms Sutherland on 23 November 2021, Dr Loretta Reiter, Rheumatologist, provided a report to Comcare which relevantly stated that:[37]
Ms Sutherland meets the American College of Rheumatology (ACR) criteria for fibromyalgia as she has a widespread pain index of 16 and a symptom severity score of 9, with the criteria being met if the person has a widespread pain index greater than 7 AND a symptom severity score greater than or equal to 5.
In addition, she meets the AAPT diagnostic criteria for fibromyalgia as she has eight pain sites, with more than 6 pain sites of a total of nine possible pain sites being required, and she also suffers with severe sleep problems and fatigue that has been present for at least three months…
…
In my opinion, her condition of fibromyalgia is intrinsic and constitutional to her. It bears no relationship to the incident that was minor, which occurred when she was at work on 23 November 2021 [sic].
…
Ms Sutherland does meet the most criteria for fibromyalgia. The current diagnostic criteria do not involve tender trigger points, which is the ACR 1990 criteria, but rather it is a clinical diagnosis. In this regard I refer you to above in the body of the report under Diagnosis where I outline how she meets the current 2016 criteria, as well as the 2010/2011 criteria.
…
The event on 26 October 2018 is not, and has never been, a significant contributing factor to her condition, despite temporal relationship. Correlation is not causation. [emphasis in original]
[37] Ibid., pages 249-262.
On 10 March 2022, following the Department’s request for reconsideration, Comcare affirmed its determination from February 2022 in relation to Ms Sutherland’s ongoing medical treatment for her accepted claim of fibromyalgia.[38] Comcare found that ‘Dr Reiter’s report is not sufficiently persuasive to justify revisiting the decision to accept liability’ and it relied upon the opinions of Professor Littlejohn and Associate Professor Champion.[39]
[38] Ibid., pages 291-294.
[39] Ibid., page 292.
On 9 May 2022, Ms Sutherland’s rehabilitation services was closed.[40] While she had been ‘cleared with capacity for 4 hours per week’, it was reported that Ms Sutherland ‘has yet to engage in volunteering or employment due to ongoing flare of symptoms’ impacting her ‘capacity to engage’.[41]
[40] Ibid., pages 303-305.
[41] Ibid., page 304.
On 8 February 2023, a Functional Capacity Evaluation was performed on Ms Sutherland, however she was unable to continue with the testing because ‘she had reached her maximum sensory, pain, and stress tolerance threshold’.[42] It was reported that Ms Sutherland’s decision to cease testing ‘was due to a number of factors, including worsening global pain, nerve-type pain running down the arms, breathlessness, and extreme fatigue’.[43]
[42] Ibid., page 331.
[43] Ibid.
On 24 March 2023, after assessing Ms Sutherland on 24 February 2023, Dr Kalesh Seevnarain, Occupational Physician, reported to Comcare that:[44]
There has been debate about her diagnosis, however, Ms Sutherland meets the criteria for fibromyalgia. In my opinion, this is not thought to be related to the workplace incident in
October 2018 as there is no biological plausibility or medical evidence to support the relationship.
…
Ms Sutherland's condition is characterised by the reporting of her pain and tenderness.
This is subjective in nature.
As such, Ms Sutherland may describe subjective flares in her symptoms. However,
[44] Ibid., pages 345-356.
objectively, there was no evidence to support any specific deficit in her functioning.
On 15 May 2023, Dr Seevnarain provided a supplementary report, which relevantly stated as follows:[45]
…there is no strong medical evidence to support a causal relationship between Ms Sutherland’s fibromyalgia and the incident described.
Ms Sutherland’s condition is caused by pre-existing constitutional factors.
The workplace incident was not thought to be significantly related to the development of her fibromyalgia.
…
Ms Sutherland’s condition would have reached its current state irrespective of her employment with the Commonwealth. There was no causative association with the workplace. Also, if Ms Sutherland’s condition was considered to be linked to her workplace, there would be a temporal relationship between her work environment and her symptoms. If the condition was truly work-related, Ms Sutherland would have experienced some improvement in her symptoms from May 2020 noting that she ceased work at this point.
[45] Ibid., pages 357-361.
On 22 June 2023, Comcare determined that it had no present liability to pay compensation to Ms Sutherland for medical expenses or to make incapacity payments under sections 16 and 19 of the SRC Act in relation to fibromyalgia, because it found that the medical evidence suggested the condition was no longer significantly contributed to by her employment with the Commonwealth and would have reached its current state irrespective of that employment, and that there was no causative association between the onset of her fibromyalgia and employment.[46]
[46] Ibid., pages 367-370.
On 2 August 2023, following Ms Sutherland’s request for reconsideration, Comcare affirmed the determination of no present liability under the SRC Act based on the finding that, while Ms Sutherland continued to have fibromyalgia, it was not significantly contributed to by her employment.[47] In this regard, Comcare noted that, while ‘Drs Kostos, Cohen and Youssef do not consider you met the diagnostic criteria for fibromyalgia, the other seven doctors do consider you met this criteria’ and, in relation to the contribution from employment, it ‘preferred the evidence of Dr Seevnarain and Dr Reiter as they had the benefit of reviewing and took into account the various and numerous medical reports and opinions of other experts over a more extensive timeline’.[48]
[47] Ibid., pages 371 and 376-380.
[48] Ibid., page 378.
On 3 August 2023, Ms Sutherland applied to the Tribunal for review of Comcare’s decision that it had no present liability to pay her compensation under the SRC Act.[49]
[49] Ibid., pages 1-5.
On 4 October 2023, Professor Littlejohn provided a supplementary report, on this occasion to Ms Sutherland’s solicitors, following an examination of her on 27 September 2023, which relevantly stated that:[50]
[50] Exhibit 2, pages 22-29.
She scores highly on levels of fatigue, waking unrefreshed, cognitive symptoms such as memory and concentration, and other symptoms such as headache.
The above features comprise the American College of Rheumatology 2011 and 2016 diagnostic criteria or fibromyalgia. She fulfils those criteria based on those responses.
She also has high levels of sensitivity on the Central Sensitivity Index, with a total score of 82 which is well above the threshold to diagnose central sensitivity syndrome, a common co-morbid issue with fibromyalgia.
The fibromyalgia impact score measured 56.8/100 which is a common score in people with severe fibromyalgia.
…
Rebecca gave a clear history and exhibited no abnormal pain behaviour.
…
She had abnormal tenderness to gentle pressure through the body in all four quadrants and spinal areas.
…
In my opinion the incident occurring in the workplace significantly contributed to her current condition. The physical trauma she suffered to her arms and legs in my opinion has been a trigger for the commencement of the fibromyalgia, and whilst the tissue damage trauma that she suffered at the time has resolved, the fibromyalgia reaction has continued, as is often the case.
On 20 March 2024, Dr Reiter provided a supplementary report to Comcare’s solicitors, after a re-assessment of Ms Sutherland on 12 March 2024, which opined that:[51]
[51] Ibid., pages 109-121.
She had tender trigger points throughout her body in keeping with her diagnosis of fibromyalgia.
…
I my opinion, her condition of fibromyalgia is intrinsic and constitutional to her. I still consider that there has not been any relationship with the incident that was minor…
…
I still hold this opinion that the workplace event of 26 October 2018 was not a significant contributing factor to her condition of fibromyalgia despite there being a temporal relationship, given that the evidence in the literature does not support trauma as a factor in precipitating/causing fibromyalgia.
…
Given that I do not consider that the incident on 26 October 2018 caused her condition of fibromyalgia with all those issues listed associated with her condition of fibromyalgia, I do not consider that the incident on 26 October 2018 caused those issues. Professor Littlejohn did not provide any support from the literature that fibromyalgia caused by trauma.
…
In my opinion, Ms Sutherland has no physical capacity for her pre-injury hours and duties as an Executive Assistant, or in a similar role, her specifically not being able to do her pre-incident hours and duties due to her widespread pain, as well as her marked severe pervasive fatigue, as well as her poor cognitive symptoms – poor memory and poor concentration.
Fibromyalgia is a clinical diagnosis of chronic generalised pain, with tender trigger points in all muscle groups. The prevalence in the population is 2% and 80 – 90% are female. Previous studies have shown that patients with fibromyalgia “rated the same amount of disability as rheumatoid arthritis patients, in that both groups who are able to perform only about 60% of the work done by normal control”.
On 24 July 2024, Associate Professor Champion provided a supplementary report to Ms Sutherland’s solicitors following a further assessment on the same date, which report relevantly stated that:[52]
[52] Ibid., pages 35-104.
Description/Diagnosis There are several facts concerning this case that have achieved general agreement:
• There was significant direct trauma to Ms Sutherland’s distal right upper limb in the region of her hand and wrist, also lesser trauma to other sites including left lower limb.
• The onset of widespread pain was about 4am the following morning.
• The widespread pain became chronic and has persisted to the present with little change in recent years.
• She has consistently met current criteria for fibromyalgia syndrome and that has been widely accepted.
The critical issues are whether the direct trauma on 26 October 2018 causally influenced the immediate widespread pain and whether that initial traumatic initiating biomedical injury has continued in the long-term to influence the fibromyalgia syndrome and related disability. I make the following points:
Dr Seevnarain contended that the injury as a cause of long-term chronic widespread pain/fibromyalgia was not biologically plausible. I have acknowledged in my wide experience of trauma-associated chronic widespread pain and fibromyalgia syndrome, that it is uncommon for such a focal injury to be the determinant of widespread pain which becomes chronic and is classifiable as fibromyalgia syndrome. I make 2 responses to that, the first being that it is a fact that Ms Sutherland sustained injuries and that within hours she wakened with widespread pain and that widespread pain continued. Plausibility is provided by not only a commonsense interpretation of the facts but there was a publication which I shall provide entitled “Post-injury stimulation triggers transition to nociplastic pain in mice”, ie experimental evidence that a focal injury can induce widespread pain in experimental animals. One might ask what has nociplastic pain to do with fibromyalgia syndrome. Fibromyalgia syndrome is characterised by features of central sensitisation which I found on my initial examination in 2019 and again on this occasion, clinical features implying central sensitisation. Features of central sensitisation have been identified in hundreds of studies in a variety of chronic pain conditions. It is one of the major underlying mechanisms of nociplastic pain, but they are not synonyms. Nociplastic pain is a pain phenotype associated with many features of central sensitisation. My observations on examination and understanding of Ms Sutherland’s case is that there was initial nociplastic pain as demonstrated in the mice experiments and this has persisted to the present. I shall provide copies of publications in support of these statements. Nociplastic pain is defined as pain that arises from altered nociception despite no clear evidence of actual or threatened tissue damage causing the activation of peripheral nociceptors or evidence for disease or lesion of the somatosensory system causing the pain (Kosek et at Pain 2016, attached).
On the issue of trauma-induced fibromyalgia syndrome or trauma-aggravated chronic pain leading to fibromyalgia syndrome, I have personally studied this question with coinvestigators and that has led to a publication entitled “Biopsychosocial sequelae of chronically painful injuries sustained in motor accidents contributing to non-recovery: retrospective cohort study (Injury 2022). This was a survey of 300 consecutive deidentified medical reports by myself, and I quote, ‘Almost a quarter of claimants (preaccident) (24.3%, N=73) reported a history of a chronic pain condition, and almost half (49.7%, N-149) reported a history of a primary pain disorder (sometimes with nociceptive pain disorder) such as back pain (25.3%, N=76), headaches (20.3%, N=61), dysmenorrhoea (15.1% of females, N=24) or neck pain (12.7%, N=38). After the MVA, (97% N=291) of claimants reported chronic regional pain which had extended to widespread pain in 18% (N=54), and half of those with chronic widespread pain (N-27) additionally met current criteria for fibromyalgia syndrome.” This is just one publication in support of trauma-inducing chronic widespread pain and fibromyalgia or aggravating chronic pain and influencing extension to widespread pain and fibromyalgia syndrome.
It is important to take into consideration that there was evidence that Ms Sutherland was vulnerable to chronic widespread pain and to fibromyalgia syndrome. Although she had not previously experienced widespread pain, the collection of relatively minor appearing vulnerability factors probably rendered her significantly vulnerable to a nociplastic pain response and ultimately to chronic widespread pain and fibromyalgia, that in her particular unfortunate case the injury was sufficient to cause the initial symptoms, the subsequent physical signs, and the present status of her fibromyalgia syndrome. It has been suggested that any primary influence of the subject trauma on her widespread would have worn off and that the condition is now ‘constitutional’ ie autonomous. It has been further suggested that she would have acquired chronic widespread pain and fibromyalgia in the natural history without such injury. However, such statements are purely speculation and we must go with the facts. She had the injury, there was immediate widespread pain which must be explained by nociplastic mechanisms. Without any further injury or direct causal influence, she has continued with widespread pain and fibromyalgia to the present. (Impaired sleep, stress, depressed mood and especially multisensory sensitivity, each augmented by the subject injury, have also been relevant as secondary factors). It is entirely arbitrary and conjectural to suggest that the initial traumatic incident which precipitated this condition in a vulnerable individual had no sustained influence and that she would have acquired her present condition in the natural history without such trauma.
…
I have made the case for significant ongoing contribution in the above section Description/Diagnosis.[emphasis in original]
LEGISLATION

Subsection 14(1) of the SRC Act provides that:
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.
Subsection 5A(1) of the SRC Act relevantly defines ‘injury’ to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment; ...
Section 5B of the SRC Act regarding the definition of ‘disease’ states that:
(1)   In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)   In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)   In this Act:
significant degree means a degree that is substantially more than material.
Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
Sections 16 and 19 of the SRC Act respectively provide for compensation to be payable 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) and for the payment of compensation to an employee who is incapacitated for work as a result of an injury.
EVIDENCE
Lay evidence
Ms Sutherland
The Tribunal has considered the two written statements made by Ms Sutherland respectively dated 8 April 2020 and 13 September 2024.[53] Ms Sutherland gave evidence at the Tribunal hearing and confirmed adherence to those written statements.
[53] Ibid., pages 1-15.
Ms Sutherland was referred to the passage in her first statement, from 2020, that her symptoms ‘have not changed in any material fashion since I was first injured in 2018’.[54] She told the Tribunal that statement was correct and that she has now learnt how to ‘pace’ herself, to rest between chores and learnt as much as possible to ‘manage the symptoms with rest’. Otherwise, the ‘symptoms’ have not changed since they first presented after the workplace incident in 2018.
[54] Ibid., page 13.
Ms Sutherland also agreed that her statement regarding never having ‘had any significant difficulties apart from normal muscular aches and pains’, a ‘good memory’, being ‘good at my job’ was a reference to how she was before the injury.[55]
[55] Ibid., pages 14-15.
Ms Sutherland told the Tribunal that she previously had a fainting issue when her blood was being taken. She can ‘become a bit woozy if I’m not lying down’ and can faint, so she makes sure that she is lying down and there are ‘no problems’. Ms Sutherland said that she used to have ‘episodes’ but they have ‘completely resolved’ and her last ‘fit’ was at age 23. Ms Sutherland clarified that she would faint when she had a blood test and would experience a ‘fit’ when receiving ‘treatment’ in her early twenties, but a neurologist had told her that no medication or other intervention was required.
By way of cross-examination, Ms Sutherland agreed that she had tested negative for an epilepsy condition. She was referred to medical records stating, under ‘Inactive Past History, that she usually experienced seizures in response to ‘traumatic situations’ or ‘severe illness’.[56] Ms Sutherland told the Tribunal that if blood was being taken or she was receiving a vaccination and had to sit up, she ‘might faint’, but not always.
[56] Ibid., page 128.
Counsel for Comcare referred to Ms Sutherland’s first statement, which detailed that:[57]
There are references in my medical documents to seizures in the earlier years of my life. There was never a formal diagnosis. when I was born my mother was Rh-negative and I required two blood transfusions. These references relate to specific events when I was a small child such as having a high temperature, having blood taken or having a surgical procedure. Ultimately I grew out of this condition.
[57] Ibid., page 2.
It was put to Ms Sutherland that what was written inferred that the condition was only experienced during childhood. She told the Tribunal that it was ‘mainly in childhood’ and ‘very occasionally’ occurred up until she was aged 23 if she was having a ‘minor medical procedure’. In this regard, Ms Sutherland told the Tribunal she was required to have annual medical examinations for ‘some years’ in relation to the issuing of her driver’s licence, but then these were stopped and she was told they were not required because she was ‘not a risk’. Ms Sutherland considered that this requirement ceased ‘a few years ago’ and for many years she was not required to have medical certificates from a doctor. Ms Sutherland told the Tribunal, from 2012 or 2014, there was a new requirement that meant she need to have a ‘medical’, but it later stopped. This requirement emanated from Ms Sutherland having to disclose in a form for her driver’s licence that she had previously suffered seizures, hence the annual medical clearance from a general practitioner for ‘a number of years and then just stopped’. After being referred to an entry from 2015 regarding the driver’s licence ‘medicals’, Ms Sutherland clarified that the requirement commenced in 2012, but for ‘many years’ she was not required to ‘have a medical’.[58]
[58] Ibid., pages 135-136.
Counsel referred to Ms Sutherland’s 2020 statement that she had not experienced ‘clinical anxiety’ and that the ‘reference to anxiety in my medical notes is simply a reference to the anxiety experienced when I had blood taken or an invasive medical procedure done and I felt faint’.[59] Ms Sutherland was referred to the statement in a letter from Dr Amy Tang, Oncologist, dated 25 January 2011, that she ‘has a past history of anxiety and recurrent fainting episodes with seizures many years previously ’, which had been fully investigated.[60] Ms Sutherland told the Tribunal that any anxiety was limited to medical procedures.
[59] Ibid., pages 2-3.
[60] Exhibit 1, page 125.
Counsel referred to the passage in her 2020 statement that, in October 2018, a security gate:[61]
shut prematurely and struck me…It hit me predominantly on the right hand and the left foot with sufficient force to cause me to limp afterwards. It jolted my whole body. I was more embarrassed than anything else, but I was in a lot of pain.
[61] Exhibit 2, page 4.
Ms Sutherland said she was in pain because the gate struck her hand ‘very strongly’ and ‘it reverberated’ in her body. She agreed that she was in pain and her hand was ‘very swollen’. Counsel referred Ms Sutherland to her ‘Incident/Near Miss’ form she completed after the incident, which described her as having a bruised and swollen right hand and the left foot and knee being ‘less injured’, and further stating that she had a bruise on the ‘top of right hand and bump’, a sore left foot and the left knee was ‘a little sore too’.[62] Ms Sutherland told the Tribunal that the description ‘Minor Personal Injury’ in that form might have been the closest description from a list of ‘drop down’ options available in that form. At that time, Ms Sutherland agreed, she considered it to be a minor personal injury.
[62] Exhibit 1, pages 15-17.
Counsel took Ms Sutherland to the recorded history of the incident in Dr Kostos’ report from March 2019, which stated that:[63]
On 26 October 2018 she had swiped to go through security gates when the gate closed and struck her right hand and left foot but at one stage she also noted that her left knee was sore.
She was “more embarrassed than anything else” and soon afterwards noted that she was not feeling well and that her left [sic] hand was sore.
[63] Ibid., page 53.
Ms Sutherland told the Tribunal that she could not recall what she told Dr Kostos of the incident, but maintained that she was ‘in a lot of pain’ at the time of that incident and was sent home after it occurred. Ms Sutherland did not recall whether she told Dr Kostos about the limp recorded in first written statement from 2020.[64]
[64] Exhibit 2, page 4.
Counsel referred to the history reported by Dr Champion in November 2019 that:[65]
the gates opened, and as she stepped forward “the gates closed on me”…The main impact was on the dorsum of her right hand and there was lesser impact on her left foot and her left knee was subsequently sore, but she does not think there was direct trauma to the left knee…The initial pain in her right hand was acknowledged not to be severe. Her main initial emotional experience was embarrassment, not fear.
[65] Exhibit 1, page 101.
It was put to Ms Sutherland that the above history was a more subdued history of pain than she recorded in her written statement. Ms Sutherland told the Tribunal that the pain ‘increased’ as she walked back to her desk; after getting lunch she realised that she ‘had been hurt’. Ms Sutherland said that she was in ‘a lot of pain’ when she sat at her desk and was sent home by taxi in the hour or two after the incident because she was in ‘too much pain’ to drive. Counsel put to Ms Sutherland that there was no reference in Dr Champion’s report to her limping after the incident. Ms Sutherland told the Tribunal that she did not remember whether she told Dr Champion that she was limping afterwards.
Counsel put to Ms Sutherland that the accounts she gave closer to the time of the incident were of a less significant incident than that recounted in her statement of 2020. Ms Sutherland again told the Tribunal that she was ‘in a lot of pain’ in the half hour or hour after the incident and could not drive home from Canberra to Goulburn because she was ‘in too much pain’.
After the incident, Ms Sutherland attended hospital, because she was advised by her general practitioner’s clinic to attend for an x-ray. She did not recall whether any pain relief medication was dispensed, but a Human Resources officer at the Department gave her ‘two Panadol’ before she got into the taxi at work. As a result, Counsel referred to the emergency documentation from Goulburn Base Hospital, which noted that Ms Sutherland had a right hand ‘contusion’, it was ‘caught in a heavy automatic glass door’, she was also ‘hit in right [sic] knee and right [sic] foot but pain to these has settled and mobilising normally’.[66] Ms Sutherland told the Tribunal that she did not recall whether, at the time of her arrival at the hospital, she was experiencing pain in her knee or foot, it was the right hand that was ‘sore more than anything else’. Ms Sutherland disagreed that the symptoms referred to in her left knee and ankle had resolved by that time and said that her right hand was ‘still swollen’. Ms Sutherland did not recall when the pain in her left knee and ankle resolved, but it was ‘more my right hand’. Ms Sutherland said that she woke up the following morning with ‘pain everywhere’, including the injured areas, but it was ‘everywhere else’ in her body.
[66] Exhibit 2, page 267.
On 1 November 2018, six days after the incident, Ms Sutherland attended on her general practitioner.[67] Ms Sutherland thought she told the doctor that she had no concerns regarding her left foot, but could not ‘really remember’ given the time elapsed. She accepted that she must have told her doctor at that time that no analgesia was given at hospital and that the pain in her wrist had ‘improved’.[68]
[67] Ibid., page 144.
[68] Ibid.
Counsel referred Ms Sutherland to her general practitioner’s undated report to Comcare, which referred to their initial consultation on 1 November 2018, where ‘she did not have any concerns with her left foot and some mild pain in her right wrist’.[69] It was suggested to Ms Sutherland that the report was an accurate description of the then pain in Ms Sutherland’s wrist. She told the Tribunal that her hand was ‘starting to get better’, but she ‘had pain all through’ her body. Ms Sutherland agreed it was accurate that she had ‘mild’ pain in her wrist at that time and no concerns regarding her left foot.[70] She was asked whether the mild pain in her right wrist resolved shortly after that consultation in early November 2018. Ms Sutherland said that ‘the hand and leg where the gate hit me resolved’.
[69] Exhibit 1, page 36.
[70] Ibid.
Counsel took Ms Sutherland to her doctor’s clinical notes from 13 November 2018 and she agreed that she told the doctor that she was ‘experiencing pain in her joints intermittently’.[71] Ms Sutherland did not recall telling her doctor that she had been ‘having days when she has been pain free’ and told the Tribunal that was incorrect.[72]
[71] Exhibit 2, page 145.
[72] Ibid.
Counsel referred to a medical record from 3 January 2019, which stated that Ms Sutherland had ‘generalised arthralgia for 2 days’, was ‘tired’, had no night pain and reported a ‘similar episodic falre [sic] ups 3 times in last 3 months’ after being hit by the gate at work.[73] Ms Sutherland told the Tribunal she did not really remember providing that history to the doctor. It was suggested to Ms Sutherland that her symptoms were intermittent and she had days and weeks where she experienced no pain. Ms Sutherland disagreed and said the pain would ‘get more severe’ and ‘then would settle down’, but it ‘never went away’. Counsel put to Ms Sutherland that the reference from January 2019 to ‘generalised arthralgia for 2 days’ was to having joint pain for two days and that she had reported similar episodic flare ups three times in the past three months. Ms Sutherland told the Tribunal that she had ‘severe pain’, it ‘never went away’ and did not accept that there were days or weeks when she had no pain.
[73] Ibid., page 145.
Ms Sutherland was taken to a medical record from 23 January 2019, which referred to ‘periodic intermittent flares of generalised joint pains’.[74] She did not recall providing that history and said she may have expressed herself poorly; Ms Sutherland was having ‘flares’ of ‘increased pain’.
[74] Ibid., pages 148-149.
Ms Sutherland was referred to her doctor’s notes from 25 February 2019 regarding seeing her ‘last week for fibromyalgia’.[75] She did not recall telling her doctor, as reported, that ‘saturday more energy and felt happy and able to do things’, ‘had a good day on saturday’, and that she ‘felt fantastic’ on that Saturday.[76] Ms Sutherland disagreed that this record meant that she had no symptoms on that day.
[75] Ibid., pages 153-154.
[76] Ibid.
Ms Sutherland said she must have told her doctor on 13 March 2019 that her ‘fibromyalgia symptoms come and go’, but could not recall doing so.[77] She disagreed that these clinical records indicated that there were periods where she had no pain and said ‘the pain increased’ and ‘there’s always pain’; Ms Sutherland said the pain ‘increases and then goes back to a baseline’.
[77] Ibid., page 154.
Ms Sutherland told the Tribunal she did not recall telling her doctor on 30 May 2019 that she ‘was well’ for three weeks ‘physically and mentally and felt like back to her normal self’, but that, if it was recorded, she must have told them.[78] It was put to Ms Sutherland that she did tell her doctor that she had experienced no symptoms for three weeks because that was what had transpired. She told the Tribunal that she had always ‘got pain’, but some days were better than others. Ms Sutherland said that she was then not back to ‘how I was before’, but felt ‘more like’ she was before the workplace incident in October 2018. Ms Sutherland disagreed that entries from her medical records referring to intermittent symptoms were accurate because she still had days where she feels better than other days, but she is ‘always in pain’.
[78] Ibid., page 159.
Ms Sutherland agreed that she told Professor Youssef in November 2019, at which time Comcare had declined liability in relation to fibromyalgia, that she had been using a ‘walking stick’ for two months because she was limping as a result of pain and in order to help steady herself.[79]
[79] Ibid., page 114.
Counsel referred Ms Sutherland to the report of Dr Champion from November 2019, which contained no reference to her requiring the use of a walking stick, and suggested to Ms Sutherland that she did not in fact need one at that time. She disagreed and told the Tribunal that she still ‘occasionally’ uses a walking stick.[80] Ms Sutherland did not recall when she first started using a stick. She was referred to a medical entry from 15 November 2019, which recorded her having a ‘mild limp on walking’, but did not refer to her use of a walking stick.[81] Ms Sutherland told the Tribunal that she uses a stick ‘intermittently’. It was put to Ms Sutherland that, in November 2021, her medical records first reported her using a walking stick and she was aware that Comcare were looking to review her entitlements under the SRC Act.[82] Ms Sutherland disagreed and said she usually uses a walking stick on ‘long trips’, such as for medical appointments in Sydney, so that it ‘gives me a little bit of security and steadies me’.
[80] Exhibit 1, pages 97-108.
[81] Exhibit 2, pages 162-163.
[82] Ibid., page 186.
In re-examination, Ms Sutherland was referred to the propositions put to her in cross-examination regarding her use of a walking stick, including that she did not use one following her consultation with Professor Youssef in 2019 and the first reference in her medical records to its use in 2021. She was taken to an ‘Initial Needs Assessment’ from 4 August 2020, which noted that, for walking and standing, Ms Sutherland used ‘a walking stick for support when needed’.[83] Ms Sutherland agreed that, at that time in 2020, she was using a walking stick.
[83] Exhibit 1, page 193.
Medical evidence
The Tribunal has set out above in these reasons an overview of the medical evidence in the proceeding. There were four medical experts who gave concurrent evidence at the Tribunal hearing. Ms Sutherland called Professor Littlejohn and Associate Professor Champion. Comcare called Professor Youssef and Dr Reiter. The Tribunal records its appreciation to these experts for making themselves available to give concurrent evidence, which aided the Tribunal in meeting its statutory objectives. The Tribunal sets out below a summary of their responses to questions put to them by the Tribunal and Counsel.
What is the specific diagnosis of the Applicant’s condition? If your diagnosis has changed, please advise what it is now and why.
Associate Professor Champion confirmed his diagnosis was that Ms Sutherland had a ‘post-traumatic nociplastic pain syndrome’, which fulfils the criteria for fibromyalgia syndrome.
Professor Littlejohn told the Tribunal he diagnosed fibromyalgia and his opinion had not changed based on the available information.
Professor Youssef said that Ms Sutherland ‘currently fulfils the criteria for the fibromyalgia syndrome’. In relation to his changed diagnosis, Professor Youssef said that, unlike the other experts, he had not recently re-examined Ms Sutherland but still had ‘some concerns’ regarding ‘inconsistencies’ in her presentation and ‘the possibility of secondary gain’.

Dr Reiter told the Tribunal that her opinion had not changed and diagnosed fibromyalgia ‘based on the American College of Rheumatology 2016 and 2011 criteria’ and the ‘AAPT’ (or Pain Society) criteria for that condition.
Please describe the current generally accepted aetiology and relevant diagnostic indicators for fibromyalgia
Associate Professor Champion told the Tribunal that fibromyalgia was a ‘by the way’ diagnosis for him; there were standard international criteria he applied, which Ms Sutherland fulfilled.
Professor Littlejohn said that ‘the exact cause for fibromyalgia has not been specifically decided or found’, but most people in the field consider there is a ‘huge stress’ affect causing fibromyalgia. There is a link between ‘psychological stress and the stress response’ within a person’s body and the ‘change in the pain sensitivity and other peripheral sensations that contribute to the syndrome’. There are no relevant biological tests to prove whether a person has or has not got fibromyalgia, there are laboratory investigations using MRI for research, but ‘in the clinic’ diagnostic criteria are relied upon, being ‘a compilation of the clinical features of the patient’, widespread pain or tenderness in the context of other factors such as ‘poor sleep’, ‘poor cognition’, ‘high levels of fatigue’, and there are ‘a few points given’ for headaches, abdominal pain and mood change. The majority of ‘the points’ making up a diagnosis ‘go to the widespread nature of the pain’ and these types of criteria have been validated in large populations in different parts of the world, so they are ‘quite robust’. Therefore, the clinical diagnosis of fibromyalgia is ‘robust’, although there is no specific diagnostic test.
Professor Youssef told the Tribunal that he agreed with Professor Littlejohn that there is no diagnostic test and it is based on history, patient testimony and the findings of tenderness on examination. The aetiology of the condition is ‘unknown’, but stress and psychological factors are thought to be a ‘major factor in fibromyalgia’, which reflected Professor Youssef’s clinical experience.
Dr Reiter concurred with Professor Littlejohn and Professor Youssef in relation to the diagnostic criteria and said that there are ‘lots of hypotheses thrown around’ about aetiology, but ‘very little’ is known about causation and aetiology.
Did the incident, such as you understand occurred to the Applicant on 26 October 2018, significantly contribute to the development of the Applicant’s condition? Please provide the basis of your opinion
Associate Professor Champion said that it was ‘complex’ and ‘important to consider the whole story’. Ms Sutherland was ‘highly vulnerable’ to pain sensitivity and widespread or ‘multi-site’ pain. The vulnerability included multiple factors: premature birth, early hospitalisation, noting that early childhood disadvantage is important, she had infectious mononucleosis, dysmenorrhoea and back pain; ‘the more pain conditions you have, the more you’re likely to get’. Two additional very important influences on her vulnerability were a history of iron deficiency and ‘very high responses’ to the ‘multisensory amplification scale’; she has ‘severe multisensory sensitivity’, that is, to light, sound, touch, taste and smell. It is influenced by a history of iron deficiency and ‘influences substantially’ the development of pain conditions, widespread or otherwise. It is genetically influenced, although Ms Sutherland said it was worse after the injury. Associate Professor Champion said that Ms Sutherland had the ‘focal, not terribly severe, trauma to her right hand and wrist region and left leg’. She awoke at 4.00am the following day, with widespread pain and, although there is some evidence that the pain fluctuated earlier, it remained a widespread pain condition to the present. The other influences that aggravated the condition include the multisensory sensitivity, impaired sleep, anxiety and depression, the latter of which she ‘tends to playdown’. All of these factors ‘came together’ to create what is a nociplastic pain syndrome. Associate Professor Champion further said that the nature of fibromyalgia syndrome is ‘based on central nervous system abnormal sensory processing without requiring any substantial pain related, that is nociceptive input, from any trauma area or particular pathological site’. On examination, he found Ms Sutherland had widespread, from head to toe, ‘cutaneous sensitivity to various stimuli’. Ms Sutherland’s responses to these examinations were ‘worse the second time’. She also had ‘low pressure pain threshold’ throughout her body, it was ‘quite generalised’, and responses to ‘repetitive deep pressure at the pain threshold’ led to a ‘progressive worsening of the pain experience’. That is ‘central sensitisation’, an integral part of ‘a nociplastic pain syndrome’. Associate Professor Champion referred to a recently published article regarding experiments on mice that found the pain continued in central nervous system mechanisms after the resolution of the initial injury, which was ‘by definition nociplastic pain’.[84] Associate Professor Champion also referred to a paper he published on severe chronic pain after motor vehicle accidents.[85] There were 300 participants, ‘hardly any with widespread pain pre-accident’, but 18% had ‘chronic widespread pain’ after the trauma of the accident and half (or 9%) fulfilled criteria for fibromyalgia syndrome, so trauma ‘certainly can induce widespread pain with the characteristics of fibromyalgia syndrome’.
[84] Exhibit 4.
[85] Exhibit 3.
Professor Littlejohn told the Tribunal that he did believe the workplace incident was a ‘significant contributing factor’, he noted that Ms Sutherland did not have fibromyalgia or similar symptoms prior to the event when she had an injury at work. Ms Sutherland had that painful injury, she developed pain at the time, it persisted and became worse, perhaps fluctuated over some weeks, but ‘then developed into a widespread pain condition that we would label as fibromyalgia’. Professor Littlejohn considered that there was ‘a triggering event’ that led Ms Sutherland from being an ‘asymptomatic person to a very symptomatic person’, which was ‘the key thing in my mind’. She may have had risk or predisposing factors in Ms Sutherland’s background, but the event at work ‘was the trigger to cause the problem’. The basis for Professor Littlejohn’s opinion was his reading of the literature, his ‘experience with seeing patients who have had trauma and then developed fibromyalgia after trauma’. He referred to the fibromyalgia clinic at the hospital where he practices, which conducted a survey two years ago of 700 patients showing that 70% of those patients identified a trigger as the start of their fibromyalgia, with the trigger being defined as an ‘emotional trigger’. Therefore, Professor Littlejohn opined, ‘emotional distress is a key problem in the triggering of fibromyalgia’ from different onsets, it may be trauma, an infection, a road injury or emotional event, there are ‘a lot of things that can trigger fibromyalgia’. Although everyone may be vulnerable to potentially developing these problems with certain triggers, there are ‘subtle and difficult to understand emotional factors’, not depression or a specific psychiatric event, but ‘the way our brains work under stress that can modulate and activate pain and other sensory pathways’. This is how Professor Littlejohn viewed what had happened for Ms Sutherland.
Professor Youssef told the Tribunal that he was surprised with Associate Professor Champion’s findings from his abovementioned motor vehicle accident paper because, based on other studies, ‘14% of the population has chronic widespread pain’, so it was surprising that they had none pre-accident.[86] In relation to the employment contribution, Professor Youssef said he did not think this incident ‘really explains’ the presentation with ‘fibromyalgia-like illness’, because it is ‘highly unusual and biologically implausible’. Based on his experience, Professor Youssef had ‘never seen a patient who developed such severe symptoms after a minor injury within such a short period of time’. He did not believe that the other paper referred to by Dr Champion was relevant because there were two injuries administered to the one site on the mice and the testing was performed very near to that injured site. The mice had slightly abnormal reactions at the site of the injury, but they were not ‘running around as though they had specific pain’. Here, the injury occurred in the hand and within 24 hours there was ‘widespread joint pain everywhere’. Additionally, if there was severe central sensitisation, ‘you would expect’ that ‘there would be tenderness’. Although the criteria now does not require tenderness, with severe central sensitisation ‘you would expect tenderness’; Ms Sutherland’s general practitioner, Dr Kostos, Dr White and Dr Cohen all ‘did not find much’ in the way of tenderness. That would be ‘highly unusual’ in someone with such severe central sensitisation to cause them to have this pain. The trajectory of Ms Sutherland’s symptoms ‘are unusual’ for someone with severe central sensitisation, in having times of being pain free. There may have been psychological factors, but within the first few months, it was not typical for someone with true central sensitisation; the trajectory was ‘wrong’. Additionally, Professor Youssef queried why, for someone with such severe predisposition, it was this ‘relatively minor hand injury’ and not other issues that led to the condition. Professor Youssef said ‘this diagnosis’ has ‘all but disappeared’, there are people who have regional pain syndrome, but ‘we don’t see as many presentations, certainly in clinical practice we don’t see it anymore’. He said the diagnosis ‘disappeared’ because ‘doctors stopped calling what was probably common regional pain’ an ‘injury at work’, and he referred to the possibility of ‘secondary gain’ and the stress of Ms Sutherland’s employment not being renewed. Professor Youssef said that he would still expect there to be sensitisation at the level of the original injury, but she was not particularly tender in the right hand and it was ‘biologically implausible’ to think that an injury to a wrist would suddenly ‘turn on the whole of the spinal cord and much of the brain for her to get these symptoms in almost everywhere’ and for it to have only affected the joints, and not the muscles, and to ‘have no tenderness’, it ‘doesn’t make biological sense’.
[86] Ibid.
Dr Reiter told the Tribunal that she referred ‘to the literature’, because she found it ‘more reliable than a patient’s history’. Dr Reiter referred to a 2014 paper stating that ‘a lot of the considerations of trauma being a cause of fibromyalgia is based on case reports, case series, patient’s recall and attribution’. In this regard, Ms Sutherland provided a history to Associate Professor Champion of chronic widespread pain ‘from the very beginning’ and it was continuous, however the general practitioner’s contemporaneous notes were that she presented with arthralgia, which is joint pains and not fibromyalgia, the latter being ‘a collection of symptoms’. Dr Reiter stated that Ms Sutherland ‘does not present with that until much later’. She opined that the workplace incident ‘bears no relationship’ to the condition, and Dr Reiter did not ‘believe there’s even a correlation’ because the fibromyalgia symptoms which meet the criteria occur ‘many months later’, which is ‘in keeping with the literature’. She did not consider the ‘minor incident’ was the cause of the condition which was ‘going to happen at some stage anyway’.
The Applicant gave a history of experiencing widespread pain, which has varied in severity, but never gone away, since 4am on the morning after the incident. If the Tribunal accepted, based on the clinical records, that there were periods between 1 November 2018 and 30 May 2019 where the Applicant was pain free, would that change your opinion as to the importance of the work incident as a causal event, if so, in what way and why?
Associate Professor Champion told the Tribunal that he did not ‘believe the premise’ of the question; he did not consider the pain ‘went away’ and that was not the history he obtained ‘carefully and repeatedly’ from Ms Sutherland. It ‘varied’ and then became more ‘progressive and severe’ because of those additional influences, such as ‘multisensory sensitivity’, impaired sleep and anxiety and depression.
Professor Littlejohn said that fibromyalgia ‘does fluctuate’ and ‘it’s not as if it’s a rock-solid constant condition’. People can have ‘flare-ups and semi-remissions or full remissions along the course of their clinical problem’, which can often be influenced by stress, sleep quality and interactions with people. These matters do ‘influence the sensory input to our brains’ and that influences symptoms, so he was ‘not surprised there’s fluctuation in symptoms from fibromyalgia’ and has ‘many patients’ who report being able to undertake a variety of activities or doing ‘something more than they use to be able to do’ and then experience ‘a flare-up again later’. Therefore, fluctuations ‘don’t alter my diagnosis or my appreciation’ of Ms Sutherland’s condition.
Professor Youssef said he accounted for the reported pain-free periods of time in forming his initial opinion. It would be ‘very unusual’ for a person with such severe central sensitisation to have pain-free days or periods of time. He considered that there were ‘other inconsistencies’, such as ‘needing a walking stick sometimes and not at other times’. In this regard, Professor Youssef stated, people with fibromyalgia ‘don’t need walking sticks’ or ‘disability parking stickers’.
Dr Reiter told the Tribunal that ‘it doesn’t change my opinion at all, in fact, for me, it reinforces my opinion’. However, Dr Reiter also said that, as with Professor Littlejohn, she sees ‘patient symptoms fluctuate’, although could not recall a patient being ‘totally pain free’. If Ms Sutherland was totally pain free, then ‘whatever had triggered that supposed episode of fibromyalgia’ was ‘now not the cause of their current fibromyalgia, something else is the cause of it’.
Further questions
In response to questions from Ms Sutherland’s Counsel, Professor Youssef and Dr Reiter agreed that Professor Littlejohn was renowned worldwide for his experience and knowledge in relation to fibromyalgia. However, Dr Reiter said that she did ‘not necessarily’ accept that Professor Littlejohn’s experience and knowledge regarding fibromyalgia was greater than her own, but said he had been practising ‘longer than I have’ so would ‘probably would have seen more patients’, although she also ‘got to read the literature’ which provided knowledge. Counsel asked Professor Youssef whether he accepted that Professor Littlejohn is better renowned for his knowledge and dealing with fibromyalgia than Professor Youssef. He told the Tribunal that Professor Littlejohn ‘is better renowned for dealing with fibromyalgia, yes’.
Professor Littlejohn was referred to Professor Youssef’s opinion regarding the cause of Ms Sutherland’s fibromyalgia and stated that he disagreed with that evidence because ‘I think there is a link between her current symptoms and the event that occurred in the context of her work activities’. Professor Littlejohn’s opinion was based on his concept of there being a ‘trigger’ occurring in ‘a person who may be vulnerable to developing fibromyalgia somewhere along her life course, but it happened at this time on this day in the context of her work’ and that is where he differed from Professor Youssef.
Professor Littlejohn agreed that there was no biological test for fibromyalgia, therefore the important factors for a diagnosis are clinical judgment, history taking from the patient and reviewing all of the facts in the circumstances. Dr Reiter agreed ‘because that’s how we use the criteria that makes the diagnosis’. Professor Youssef also agreed with that proposition; ‘it’s a clinical diagnosis’. Associate Professor Champion said he was ‘generally in accord with Professor Littlejohn’, he came from a ‘pain medicine’ perspective and noted that he was ‘the only one to highlight vulnerability’, which was ‘very important’.
Counsel asked Dr Reiter whether she accepted that Ms Sutherland did not suffer from fibromyalgia before the workplace incident. She said ‘I don’t know the answer to that’, only that ‘she said she did not suffer from symptoms of fibromyalgia’. While Dr Reiter agreed that she was unaware of any material to support a proposition that Ms Sutherland suffered from fibromyalgia before the incident, she did not accept that Ms Sutherland did not previously suffer from fibromyalgia ‘based on the literature’. Professor Youssef said that Ms Sutherland ‘didn’t have widespread pain beforehand based on her testimony’.
Professor Youssef was referred to his opinion regarding ‘secondary gain’ and said that, based on Ms Sutherland’s presentation, ‘one has to think strongly about secondary gain’ because ‘it’s such an unusual and biologically implausible presentation’.
Counsel for Comcare asked Professor Littlejohn about the aetiology of fibromyalgia and he confirmed that ‘there’s no specific cause that’s been defined, but there’s a large amount of evidence that has identified abnormalities in different pain-related neural systems and stress related neural systems, so there’s no specific one cause that has been identified at this stage’. In Professor Littlejohn’s experience, he confirmed having seen circumstances where such widespread pain symptoms, as described by Ms Sutherland, had been experienced approximately 24 hours after a similar incident. He said it ‘wasn’t unusual’, hence his comments about the link between the incident and the pain symptoms. Professor Littlejohn noted that the 700 patient study of those experiencing ‘triggering’ through emotional distress (or other sub-types) and fibromyalgia was contained in a paper published in the Internal Medicine Journal. He confirmed that ‘life stress factors’ will lead to fluctuation in ‘the majority of the symptoms’ for those with fibromyalgia; it is a ‘spectrum disorder’ with varying degrees of symptoms. Professor Littlejohn noted that ‘most people’ appear on the spectrum of the relevant patient questionnaire to determine fibromyalgia, but there is a particular score required to diagnose the condition; if the symptoms are ‘persistent and high-level’ it is labelled fibromyalgia. There is ‘a lot of fluctuation in symptoms’, including during the one day, and people can move up and down the spectrum experiencing high levels of pain to lower levels, including by going into remission and then back into ‘criteria fibromyalgia’.
Associate Professor Champion was asked whether he would expect the central sensitisation to first occur at the injury site and persist thereafter, regardless of the development of pain in other areas. He agreed and told the Tribunal that ‘most commonly’, if there is a region of injury there will be features that imply central sensitisation, but the ‘unusual feature’ of this case is that there was ‘an immediate development, precipitated by injury, of widespread pain’, which fluctuated and became progressively worse through ‘secondary features’, such as impaired sleep and anxiety and depression. These all ‘compounded’ to increase the ‘abnormal central nervous system processing that underlies the pain’. Associate Professor Champion told the Tribunal that Ms Sutherland experienced a ‘traumatic event’, followed by widespread pain and ‘the progression gradually of features of nociplastic pain fulfilling criteria for fibromyalgia syndrome’. While ‘it is unusual’, ‘we have to explain it’ not just reject the evidence of an injury, widespread pain being experienced very soon afterwards, with fluctuations but then becoming ‘gradually more progressive’. Associate Professor Champion further stated that the paper on the mice study showed clearly that there was a nociplastic pain syndrome that followed the primary injury ‘without continuing sensory nociceptive inputs from the primary injury site’, which was ‘very similar to what we have here’; the pain was ‘anatomically extended nociplastic pain’.

In relation to the mice study, Professor Youssef told the Tribunal that the nociplastic changes ‘or whatever they’re caused by’, were ‘near the level of the injury’ and, while ‘they showed, yes, that some of these remediated centrally’, they ‘stimulated near the site of the injury’ and not elsewhere on the mice. He said there was ‘no indication’ that the mice experienced a widespread pain disorder, so did not consider the model to be relevant to Ms Sutherland. Associate Professor Champion disagreed and said the paper was published in the ‘premier pain journal, Pain’, requiring ‘appropriate peer review and support’. Professor Youssef agreed that it ‘seemed a well done paper’, but said ‘it just doesn’t show what Professor Champion says it shows’ and was not relevant to this case. Associate Professor Champion again disagreed and said the study ‘induced nociplastic pain, which is what we’re talking about, central nervous system mediated pain phenomena’.
CONTENTIONS
Ms Sutherland
Ms Sutherland contended that she suffered an injury in the course of her employment on 26 October 2018 and the vast majority of the medical evidence confirmed that she suffered from fibromyalgia, which developed shortly after that work injury.
Ms Sutherland submitted that the preponderance of the medical evidence supported the contention that her fibromyalgia was triggered by, and contributed to, to a significant degree, by the workplace injury and she relied upon the opinions of Professor Littlejohn, Associate Professor Champion and Dr Jain. Ms Sutherland further contended that her fibromyalgia had not resolved, resulting in incapacity for work and the requirement for ongoing medical treatment.
Therefore, Ms Sutherland submitted that the Tribunal should set aside the decision under review and, in substitution, decide that she is entitled to compensation under the SRC Act.
Comcare
While Comcare accepted that Ms Sutherland suffered from fibromyalgia, it did not agree that the workplace incident on 26 October 2018 was the ‘trigger’ for, or in any way causative of, that condition. Therefore, Comcare contended that Ms Sutherland’s condition was not significantly contributed to by her employment, and it relied on the opinions of Dr Reiter, Professor Youssef, Dr Kostos and Dr Seevnarain.
Accordingly, Comcare submitted that Ms Sutherland did not suffer from an ‘injury’ for the purposes of the SRC Act and was therefore not entitled to compensation on and from 22 June 2023, when Comcare determined that it had no present liability under sections 16 and 19 of the SRC Act. As a result, Comcare contended that the Tribunal should affirm the decision under review.
CONSIDERATION
Did Ms Sutherland suffer from an ‘ailment’ as defined in the SRC Act?
As set out above in these reasons, the definition of ‘injury’ under subsection 5A(1) of the SRC Act includes ‘a disease suffered by an employee’. Subsection 5B(1) of the SRC Act provides that for an employee to have suffered a ‘disease’ it must be ‘an ailment suffered by an employee’.
In addition to Ms Sutherland’s treating general practitioners, the following medical practitioners, with particular expertise as a rheumatologist, pain specialist or occupational physician, diagnosed Ms Sutherland with fibromyalgia: Professor Littlejohn, Associate Professor Champion, Dr Reiter, Dr White, Dr Jain, and Dr Seevnarain. At the hearing, and in contrast to his opinion from 2020, Professor Youssef also confirmed that Ms Sutherland met all of the criteria for a diagnosis of fibromyalgia. Conversely, in 2019, Dr Kostos and Dr Cohen were the medical experts that did not diagnose Ms Sutherland with fibromyalgia. It was, however, common ground between the parties that Ms Sutherland suffered from fibromyalgia, which amounted to an ‘ailment’ under the SRC Act.
For these reasons, based on the majority of the medical evidence, the Tribunal is satisfied that Ms Sutherland suffered from an ‘ailment’, being fibromyalgia, in accordance with the SRC Act.
Was Ms Sutherland’s ‘ailment’ ‘contributed to, to a significant degree’, by her employment with the Department?
For the Tribunal to find that Ms Sutherland suffered a ‘disease’, subsection 5B(1) of the SRC Act requires that the ‘ailment’ was ‘contributed to, to a significant degree’ by her employment with the Department. Subsection 5B(3) of the SRC Act states that ‘significant degree’ means ‘a degree that is substantially more than material’. The Federal Court of Australia in Comcare v Power (2015) 238 FCR 187 held that a contribution to a degree that is substantially more than material must necessarily be ‘substantially greater than one which is trivial’.[87]
[87] At [78].
By way of a decision made by consent in the 2019 Proceedings, the parties agreed that Ms Sutherland suffered from fibromyalgia, which was significantly contributed to by her employment with the Department, and that she was entitled to compensation pursuant to section 14 of the SRC Act. However, on 22 June 2023, Comcare determined that it had no present liability under the SRC Act to pay compensation to Ms Sutherland as a result of her previously accepted injury.[88] That determination was affirmed by way of a reviewable decision the subject of this Tribunal proceeding.[89] As a result, the Tribunal must determine whether, from 22 June 2023, Ms Sutherland continued to suffer the effects of the previously accepted condition.
[88] Exhibit 1, pages 367-370.
[89] Ibid., pages 376-380.
Having regard to the evidence, the Tribunal is satisfied that Ms Sutherland suffered a ‘disease’, as defined in subsection 5B(1) of the SRC Act. That is, on the balance of probabilities, the Tribunal finds that Ms Sutherland’s ‘ailment’ was contributed to, to a significant degree, by her employment with the Department.
There was no dispute that a workplace incident occurred in October 2018. At that time, Ms Sutherland stated that the glass entry gates at the Department ‘slammed on me’, resulting in an injury to her right hand, left foot and, to a lesser degree, her left knee.[90] There was also no dispute about the physical injury sustained by Ms Sutherland as a result of the workplace incident. Ms Sutherland could not drive home after the incident and attended her local hospital. She was advised to take pain relief medication as required. Early the following morning, Ms Sutherland experienced widespread pain across her body as well as localised symptoms at the sites of the injury.[91] Ms Sutherland has consistently maintained her position that before the incident she had not experienced the pain symptoms that developed and, although they can vary in intensity, they are always present. The evidence indicated that, despite some health issues, Ms Sutherland enjoyed an active and fulfilling life before the workplace incident in 2018, including being pain-free aside from the occasional injury.
[90] Ibid., pages 15-18.
[91] Ibid., page 19.
While at times Ms Sutherland had some difficulty giving cogent evidence at the Tribunal hearing, this appeared to be explained by her condition, which can lead to ‘brain fog’ and cognition issues. However, Ms Sutherland did present to the Tribunal as a straightforward and truthful historian, which was underscored by her written statements, particularly from 2020 in the 2019 Proceedings, and her consistent testimony over many years regarding the incident and its aftereffects. Ms Sutherland also appeared from the documentary evidence to seek to minimise or downplay elements of her condition, rather than exaggerating its impact, which adds to her credit. Despite Professor Youssef’s suggestion that ‘secondary gain’ should be seriously considered, Comcare did not put this contention or possibility to Ms Sutherland in cross-examination. Given Ms Sutherland’s consistent testimony, evidence, and credit as a witness, the Tribunal does not consider that secondary gain is a factor in this proceeding.
While not determinative, it was noteworthy that, just 15 months before Comcare’s ‘no present liability’ (or cease effects) determination the subject of this proceeding, and following the Department’s request for reconsideration, in March 2022 Comcare affirmed its determination from February 2022 accepting liability for Ms Sutherland’s ongoing medical treatment for her fibromyalgia.[92] Most relevantly, Comcare found that ‘Dr Reiter’s report is not sufficiently persuasive to justify revisiting the decision to accept liability’ and it relied upon the opinions of Professor Littlejohn and Associate Professor Champion, which it sought to impugn in this proceeding.[93] The only additional medical evidence after the relevant determination of 22 June 2023 was the reports of Dr Seevnarain, an occupational physician, acknowledged by Comcare not to have the same specific training and knowledge regarding fibromyalgia as the other experts, and who was not called to give evidence at the hearing. For example, while that doctor conceded that Ms Sutherland met the criteria for fibromyalgia, he opined that, if it was ‘truly work-related, Ms Sutherland would have experienced some improvement in her symptoms’ after ceasing work, which is inconsistent with the balance of the medical evidence before the Tribunal regarding the condition and its progression.[94]
[92] Ibid., pages 291-294.
[93] Ibid., page 292.
[94] Ibid., pages 357-361.
Ultimately, there was a divergence in the medical opinions before the Tribunal regarding the workplace contribution to Ms Sutherland’s condition. As set out above, Professor Littlejohn and Associate Professor Champion considered that Ms Sutherland’s fibromyalgia was significantly contributed to by her employment. Whereas Professor Youssef and Dr Reiter did not. On balance, the Tribunal prefers and accepts the evidence of Professor Littlejohn and Associate Professor Champion in this proceeding.
While Dr Reiter acknowledged that Ms Sutherland met the criteria for fibromyalgia and the temporal relationship between the workplace incident and that condition, she opined that ‘correlation is not causation’ and stated that the condition was ‘intrinsic and constitutional’ to Ms Sutherland.[95] At the hearing, Dr Reiter did not accept that Ms Sutherland had not suffered from fibromyalgia before the workplace incident and stated that her position was ‘based on the literature’. However, Dr Reiter did agree that she was unaware of any evidence to support a proposition that Ms Sutherland suffered from the condition before October 2018. In contrast, Professor Youssef accepted that Ms Sutherland did not, based on her testimony, have fibromyalgia symptoms before the workplace incident. Additionally, despite acknowledging that the criteria for a diagnosis of fibromyalgia are based largely on a person’s self-reporting, Dr Reiter relied on ‘the literature’ regarding causation, because she found it ‘more reliable than a patient’s history’, although she also stated that ‘very little’ is known about causation and there was conflicting literature regarding the condition. In her evidence at the hearing, Dr Reiter moved away from her written opinion that there was at least a ‘correlation’ between the incident and the condition because, she opined, the symptoms occurred ‘many months later’.
[95] Ibid., pages 249-262.
Following Professor Youssef’s only examination of Ms Sutherland, in 2019, he did not make a diagnosis of fibromyalgia, despite acknowledging that she met some of the criteria for that condition, because he had concerns about ‘secondary gain’. At the Tribunal hearing, Professor Youssef changed his opinion and agreed that Ms Sutherland met all of the criteria for a diagnosis of fibromyalgia, but maintained his view regarding the possibility of secondary gain being a factor. He did not articulate why his opinion had changed, but said that he had not recently re-examined Ms Sutherland, unlike the other experts. While Professor Youssef acknowledged the ‘strong’ temporal relationship between the incident and the condition, he opined that the incident did not contribute to Ms Sutherland’s condition because that would be ‘unusual and biologically implausible,’ and he had never seen such an incident lead to the reported symptoms so soon after an injury.
That position stands in contrast to the opinions of Professor Littlejohn and Associate Professor Champion. As he identified, Associate Professor Champion was the only expert to have conducted a thorough examination of Ms Sutherland’s predisposition to the development of fibromyalgia. While highlighting those risk factors, Associate Professor Champion concluded that, although the almost immediate development of widespread pain was ‘unusual’, it was explicable and relied on his own and other research to support the view that the workplace incident significantly contributed to Ms Sutherland’s fibromyalgia. Although Ms Sutherland may have had pre-existing vulnerabilities to the development of the condition, the evidence before the Tribunal strongly indicated that she was asymptomatic at the time of the workplace incident in 2018, the fibromyalgia symptoms commenced after that incident and, while they fluctuated in severity, they continued.
That progression accords with the opinion of Professor Littlejohn. To that end, Associate Professor Champion volunteered in his written reports that Professor Littlejohn is a highly regarded expert in this field of medicine. In this regard, at the hearing, Professor Youssef acknowledged that Professor Littlejohn is better renowned than himself in relation to dealing with fibromyalgia. Dr Reiter also accepted in her evidence that Professor Littlejohn was an eminent rheumatologist regarding fibromyalgia. As set out above in these reasons, Professor Littlejohn was initially engaged by Comcare to provide a report based on the available documentary material as at May 2020. In that report, he opined that the workplace incident contributed to a significant degree to the development of Ms Sutherland’s fibromyalgia. Professor Littlejohn also noted that fibromyalgia can occur quickly after a triggering event ‘as has happened here’.[96] Shortly after providing his written opinion, the parties in the 2019 Proceedings agreed that Ms Sutherland’s condition was contributed to, to a significant degree, by her employment and the Tribunal made a decision by consent to that effect.
[96] Ibid., pages 170-184.
Despite previously relying upon, and preferring, Professor Littlejohn’s opinion (and that of Associate Professor Champion) up until 2022, Comcare in 2023 issued its ‘no present liability’ determination the subject of this proceeding. Following an in-person assessment of Ms Sutherland in 2023 at the request of her solicitors, Professor Littlejohn’s supplementary report confirmed his diagnosis and opinion regarding the significant workplace contribution. At the hearing, Professor Littlejohn stated that he had seen the development of fibromyalgia soon after a focal injury and did not consider it unusual. While Comcare submitted that Professor Littlejohn had not provided sufficient evidence to support his opinion, his first report expressly referred to the attachment of ‘a number of articles which summarise literature in different areas related to my report above, including discussion of criteria and diagnosis, current management, mechanisms and some comments on injury associated fibromyalgia’.[97] Regrettably, however, that annexed material was not before the Tribunal in the documents lodged by Comcare in this proceeding.
[97] Ibid., page 182.
Professor Littlejohn’s evidence was the more persuasive of the competing opinions regarding the cause of Ms Sutherland’s fibromyalgia. The ‘key’ matter that Professor Littlejohn identified was that Ms Sutherland was asymptomatic before the workplace incident and then very soon afterwards became symptomatic. While Ms Sutherland had risk or predisposing factors to the development of the condition she did not, on the available medical evidence, have fibromyalgia before the incident and it was the ‘trigger’ for the condition’s presentation. Upon a review and consideration of all the evidence, the Tribunal agrees with the opinion of Professor Littlejohn. The Tribunal finds that there was an undeniable temporal connection between Ms Sutherland’s workplace injury and her fibromyalgia. The preferred medical evidence demonstrated that Ms Sutherland’s employment was the cause of that condition. For the avoidance of any doubt, the Tribunal is satisfied that the workplace incident caused Ms Sutherland to suffer symptoms of fibromyalgia that she had not previously suffered.[98] It also accepts Professor Littlejohn’s opinion that fibromyalgia ‘does fluctuate’ and a person can move in and out of ‘criteria fibromyalgia’ even on a daily basis, which accords with Ms Sutherland’s contemporaneous medical records, and that she experienced flare-ups of pain over a period of time.
[98] See SRGF and Comcare [2024] AATA 1818 at [276]-[277].
For the above reasons, on balance, the Tribunal is satisfied that Ms Sutherland continued from 22 June 2023 to suffer the injury the subject of her accepted workers’ compensation claim from 2019. That is, the Tribunal finds that the effects of Ms Sutherland’s accepted condition had not ceased on 22 June 2023, when Comcare determined that it had no present liability under the SRC Act. The causal nexus between her accepted workplace injury in 2018 and the suffering of the disease continued unbroken. Accordingly, the Tribunal finds that Comcare continued to be liable to pay compensation to Ms Sutherland under the SRC Act.
For completeness, the Tribunal has considered in making its decision the matters set out in subsection 5B(2) of the SRC Act that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment. These matters are: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; and any other matters affecting the employee’s health.
For the above reasons, the Tribunal is satisfied, on the balance of probabilities, that Ms Sutherland’s ‘ailment’ was contributed to, to a significant degree, by her employment with the Department, therefore constituting a ‘disease’ under the SRC Act, and that employment contribution continued from 22 June 2023.
Did Ms Sutherland continue to require medical treatment, and was she incapacitated for work, as a result of her condition?
It follows from the above findings that the Tribunal is satisfied Ms Sutherland continued to require medical treatment and was incapacitated for work from 22 June 2023, as a result of her accepted condition. As agreed by the parties, the compensation payable for such treatment and incapacity, pursuant to sections 16 and 19 of the SRC Act, is a matter for determination by Comcare following the Tribunal’s decision.
Costs
Under subsection 67(8) of the SRC Act, where the Tribunal makes a decision setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant, the Tribunal may, subject to that section, order that the costs of the proceeding incurred by the claimant, or a part of those costs, shall be paid by the responsible authority, here being Comcare.
Accordingly, the usual course in circumstances where the Tribunal has set aside the decision under review and made a decision that is more favourable to Ms Sutherland under the SRC Act would be for the Tribunal to order that her reasonable costs in this proceeding be paid by Comcare, as agreed or taxed. The parties did not make any submissions on the issue of costs in this proceeding. As a result, unless the Tribunal is informed that the parties have reached agreement as to costs following the publication of this decision, the Tribunal invites Ms Sutherland to make submissions regarding this issue within 21 days of the date of this decision, and for Comcare to provide any reply submissions within 28 days of this decision. The Tribunal will then consider the making of any order in relation to costs pursuant to section 67 of the SRC Act.
DECISION

The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the AAT Act and makes a decision in substitution that Comcare remains liable to pay compensation to Ms Sutherland under the SRC Act.

I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...[SGD]...
Associate
Dated: 10 October 2024

Date(s) of hearing:

25-27 September 2024

Date final submissions received:

31 May 2024

Counsel for Applicant:
Mr Karl Pattenden

Solicitors for Applicant:

Mr Nigel Gabbedy, Gabbedy Milson Lee Solicitors

Counsel for Respondent:

Ms Felicity Blair

Solicitors for Respondent:

Ms Kate Watson, HBA Legal

Date(s) of hearing:	25-27 September 2024
Date final submissions received:	31 May 2024
Counsel for Applicant:	Mr Karl Pattenden
Solicitors for Applicant:	Mr Nigel Gabbedy, Gabbedy Milson Lee Solicitors
Counsel for Respondent:	Ms Felicity Blair
Solicitors for Respondent:	Ms Kate Watson, HBA Legal