McNamara and Comcare (Compensation) [2018] AATA 3688 (3 October 2018)

a request from Contract Management and Telecommunications Unit to Volante for the software to be loaded....

I understand that Christine contacted Volante on several occasions in the following months with a view to encouraging Volante to load the software...

Christine filed an incident report in relation to this on 2 October 2008 as she had started experiencing pain in her arm...

I believe that the system has failed. I believe that Christine should have been provided with the software following her request in April 2008. Christine had a pre-existing condition and, given her higher risk category, her request should have been dealt with quickly and efficiently."

1. On 13 November 2008, Comcare accepted the Applicant's claim for "aggravation of sprain of shoulder & upper arm (bilateral)". In doing so, reference was made to the above email of Ms Blazely - Exhibit 1 T9 pp. 30 - 36.
2. On 26 November 2008, the Applicant was assessed by Ms Sophie Mitchell, Clinical Psychologist, who made the following diagnosis - Exhibit 1 T10 p. 38:

"Pain Disorder Associated with Both Psychological Symptoms and a General Medical Condition."

1. Dr Yuille referred the Applicant for an X-Ray of the left and right shoulders and an ultrasound of the right shoulder. The examination was undertaken on 3 June 2009, and in the report of the same date, Dr Niranjan Ganeshan made the following observations - Exhibit 1 T19 pp. 58 - 59:

"Referral Notes

6 months of generalised upper limb and upper trunk pain with bilateral shoulder pain.

XRAY LEFT SHOULDER

There is normal glenohumeral alignment with no evidence of an arthropathy. There is no reduction of the subacromial interval. There is a type 3 acromion with a small ossicle identified on the outlet view.

No rotator cuff calcification.

XRAY RIGHT SHOULDER

Once again there is a type 3 acromion. Glenohumeral alignment is anatomical and there is no reduction of the subacromial interval. No cuff calcification.

ULTRASOUND RIGHT SHOULDER

The long head of biceps tendon is normally located and intact. The rotator cuff tendons are intact with no evidence of tear nor tendinopathy.

There is however significant thickening of the subacromial bursa in keeping with bursitis with evidence of impingement.

No other significant abnormality seen.

Comment

Subacromial bursitis and impingement.

Under ultrasound guidance, I injected 1cc of Celestone and 2cc of Xylocaine into the subacromial bursa. No immediate complications were experienced."

(Emphasis in original)

1. Dr Yuille subsequently referred the Applicant for a steroid injection and ultrasound of her left shoulder, which was undertaken on 24 June 2009 by Dr Brendan Cranney. In his report of the same day, Dr Cranney opined - Exhibit 1 T21 p. 62:

"Referral Notes

6 months generalised upper limb, upper trunk pain. Bilateral shoulder pain with restricted movement.

Report

There is no prominent bursal thickening. With abduction there is bursal bunching consistent with impingement. The rotator cuff tendons appear normal. The long head of biceps tendon appears normal. No fluid collections are seen.

Iml of Celestone Chronodose and 2ml of 2% Xylocaine were injected into the subacromial bursa without complication."

(Emphasis in original)

1. Dr Yuille then referred the Applicant for an ultrasound of the right wrist and left and right elbow. The ultrasound was performed by Dr Barry Flynn on 17 September 2009. In his report of the same date, Dr Flynn noted - Exhibit 1 T33 p. 95:

"ULTRASOUND OF THE RIGHT WRIST

The right median nerve is not compressed or oedematous, the cross sectional area within the carpal tunnel is 0.06cm2.. The extensor tendons of the digits and wrist appeared normal as do their sheaths.

ULTRASOUND OF THE RIGHT ELBOW

Both the medial and lateral epicondyles appear sonographically normal with no ultrasound evidence of epicondylitis. There is no effusion seen within the elbow joint.

ULTRASOUND OF THE LEFT ELBOW

The medial epicondyle appears normal. The common extensor origin is abnormal with minor spurring seen at the most proximal extent of the origin. This is consistent with a chronic enthesitis. The tendon fibres themselves appear entirely normal."

(Emphasis in original)

1. During 2009 the Applicant was examined by Dr San Wong, Rheumatologist and Dr Colin Andrews, Consultant Neurologist. The reports generated from these examinations are discussed in detail later. However, in a report dated 23 January 2010, Dr Yuille helpfully summarised the Applicant's condition - Exhibit 1 T45 p. 122:

"Ms McNamara continues to suffer from widespread pain in both her upper limbs and her upper trunk as documented in my previous report. It has been confirmed on ultrasound that she has bilateral subacromial bursitis with impingement syndrome in both shoulders. An ultrasound of her left elbow showed some evidence of chronic enthesitis (inflammation at the site of insertion of muscle/tendon to the bone). These problems would certainly be causing some of her symptoms but I do not think they account for all her symptoms. The rheumatologist that Ms McNamara has seen has postulated possible fibromyalgia or some underlying inflammatory condition. However, as Dr Wong says in her letter there is no conclusive diagnosis for Ms McNamara's condition. I believe that Dr Wong has sent you a copy of the report that she sent to me. Given the diagnostic uncertainty it has been suggested to Ms McNamara that she seek another opinion - from Dr Speldewinde, musculo-skeletal physician and I am in the process of referring her to him..."

1. Dr Yuille also addressed in this report the massage therapy treatment that the Applicant was receiving. In response to a Question posed by Comcare regarding the benefits the Applicant obtained from the wide range of treatments she was receiving, Dr Yuille said - Exhibit 1 T 45 p. 123:

"Ms McNamara attended a treatment programme at Canberra Injury management Centre. Their report suggested she gained some limited improvement but Ms McNamara did not feel it was particularly helpful. She also participated in a rehabilitation programme with Ergogym and she thought this was helpful but the report from Ergogym suggested no objective improvement. Ms McNamara gains symptomatic relief from massage therapy and hydrotherapy. Whilst this appears not to be curative we have continued with it because it has given her some relief from her pain. It is difficult to suggest stopping the only therapy that gives her some relief and so I am suggesting that she continue with it whilst we continue with diagnostic assessments and look for other management that may produce more sustained benefit..."

1. The Applicant was subsequently assessed by Dr Geoffrey Speldewinde who observed in his report of 15 February 2010 that she was suffering from chronic widespread pain emanating from an initial right forearm over-use complaint in 2002 which was associated with - Exhibit 1 T 47 p. 127:
   • "pain related depressive features"; and
   • "Episodic mild elevation of inflammatory markers."
2. At the request of Comcare, the Applicant was examined by Dr Virginia Pascall, Occupational Physician on 6 July 2010. In her 20 page report, dated 8 August 2010,

Dr Pascall made the following diagnosis of the Applicant - Exhibit 1 T64 pp. 167 - 169:

"Ms McNamara has a number of different clinical pathologies on the evidence of the objective musculoskeletal problems, so that addressing one should not be assumed to rectify all causes for her pain.

Combining them all under the diagnosis of cervicobrachialgia or syndrome, chronic pain syndrome, regional pain syndrome or neuropathic pain (which is purely descriptive) is not giving due recognition of the pathology that is demonstrably present and is assuming that what pathology is present on the scans and investigations, does not warrant her degree of pain.

Pain is subjective and chronic pain tends to incorporate, in the musculoskeletal system, a lot of secondary effects in the muscles and joints, which in itself can give rise to further pain. A good deal of Ms McNamara's generalised tenderness is, I believe, in that category rather than being a typical neuropathic pain, which, of itself, requires there to be nerve injury or damage to begin the neuropathic process.

I do not believe that she warrants the description of neuropathic pain, despite the 'burning' nature of some of her pain and the generalised or recruitment of pain areas that are distal to the site of initial injury.

The most urgent of the various pathologies that can be demonstrated has resulted in marked abduction and flexion of the shoulders with impingement. Whilst there were no overt tendon tears on the MRI scans of the shoulders, the presence of a type 3 acromion means that there is very little space for the tendons to be tracking under the acromion.

Over time, this can give rise to irritation to the bursal surfaces of the tendons resulting in bursitis. The bursitis of the subacromial region invariably also affects the subdeltoid bursa so that pain is often felt in the upper outer surface of the upper arm, as Ms McNamara complains.

I cannot stress enough the problem that a type 3 acromion will cause, particularly once it becomes symptomatic and Ms McNamara has been symptomatic for 7 or 8 years with it now. It is not something that will go away, it will fluctuate as the inflammation (that is, the bursitis) settles, but it only requires an increased usage of the arm above chest height...for the whole thing to flare up again...

What is difficult to know is whether there is an underlying autoimmune arthropathy causing her not just a degree of joint pain in the wrists but the feelings of fatigue and lethargy. Clinically, there is little indication of this...

I do not know whether Ms McNamara has an autoimmune arthritis or not and have made some suggestions to Dr Yuille about this matter...

The fraying of a ligament in the hand/wrist is not the result of either mouse or keyboard work and I doubt whether it has anything to do with Ms McNamara's work activities at all.

These ligamentous problems may have been a result of her sports activities...

I also could not find clinical evidence of a ganglion...

I was not convinced of the diagnosis of either primary or secondary fibromyalgia. Ms McNamara has far too few symptoms and signs for that condition and it should not be diagnosed solely on the basis of pain that appears unassociated with any identifiable pathology and a skin reaction such as flare reaction..."

1. Dr Pascal was not supportive of the various alternative treatments the Applicant was receiving at that point in time. Dr Pascal opined - Exhibit 1 T64 pp. 172 - 173:

"...I believe that acromioplasty via arthroscopy is the next reasonable course of action for her and that she is wasting time and effort, if not psychological disappointment, with all the therapies, medications and injections that have gone on to date.

Whilst they are reasonable in their own right, she has given all of them a reasonable chance to succeed, which they have not. I will assume, therefore, that surgery will be undertaken at some future time...

I am yet to be convinced that the myofascial release is doing anything other than easing off muscle tension and would be unable to recommend it as an ongoing treatment regime. There are better ways of releasing muscle tension that have more lasting benefit than massage which should only ever be seen as a temporary measure to provide her with some pain relief and capacity for mobilisation whilst a more active and beneficial regime is implemented.

Although Ms McNamara does present well in terms of coming to grips with medical terminology and the implications, she does perceive of herself in an 'invalid' self image which is unfortunate."

1. In September and November 2010 and June 2011, the Applicant underwent arthroscopic surgery to her left and right shoulders - Exhibit 1 T68 p. 189; T72 p.195 and T84 p. 214.
2. The surgery was not successful - see for example, Exhibit 1 T114 p. 283; T118 p. 305. Following the September 2010 surgery, the Applicant was only able to lie on her back and as a result she developed a chronic sleep problem - Exhibit 1 T114 p. 280.
3. In a letter dated 7 December 2011, Ms Karen Baldwin, Health and Safety Manager of the Performance, Health and Safety Section of the Workforce Strategies Branch of the Department of Sustainability, Environment, Water, Population and Communities wrote to Comcare and made the following observations - Exhibit 1 T98 pp. 238- 239:

"Arthroscopic surgery was undertaken to McNamara's right and left shoulders followed by physiotherpay (sic) and hydrotherapy. Surgery was not successful and resulted in further surgery to the left shoulder. An MRI has been conducted for the right shoulder as again that was not successful. While surgery may again be required, Ms McNamaras treating specialist referred her for platelet injections with the aim of reducing or eliminating the need for further surgery. To date it appears neither surgery or treatments has been successful.

Ms McNamara continues to report that her pain levels are severe. This impacts on her ability to sleep and undertake daily activities. No return to work has been possible during this period.

Ms McNamara is undergoing physiotherapy - up to one session per fortnight, hydrotherapy - up to two sessions per week, massage therapy - up to one session per week, pain management with her psychologist up to one session per fortnight plus multiple related pharmaceuticals...

From reports from the rehabilitation provider, who has continued to liaise with Ms McNamara and attend relevant medical appointments, the treatment is not working and she continues to be in pain. Ms McNamara has reported that her pain levels have not changed since the injections. Ms McNamara's range of movement and

function in her shoulders has not improved with any of the physical therapies. The current pain management program does not appear to be showing results."

1. Comcare referred the Applicant to Dr John Talbot, Consultant Orthopaedic Surgeon. The Applicant was assessed on 14 March 2012, and in his report of 26 March 2012, Dr Talbot opined - Exhibit 1 T114 p. 284:

"I am unable to provide a clear, specific organic diagnosis to explain the condition from which Ms McNamara is currently suffering. She has developed an extremely complicated condition commencing with pain in her right arm in 2002 and continuing and spreading ever since. My impression is that she may have developed some very complex chronic pain disorder. I consider that she may also have suffered from subacromial impingement syndrome of both her shoulders, with disproportionate complaints of pain, and probably because of her pain syndrome, surgery to both shoulders has clearly worsened her shoulder symptoms. I consider that she also suffers from some mild epicondylitis of both elbows but I consider the symptoms of this have been greatly magnified by her overarching chronic pain condition. A diagnosis of 'fibromyalgia' has been made, but I remain unconvinced that this is a viable diagnosis. I am uncertain why her inflammatory markers were elevated when she consulted the rheumatologist in 2009 and I would certainly advise that a rheumatologist followed this up and repeated these tests in case they are providing some kind of a clue to her widespread symptoms, even though I am doubtful whether any clear diagnosis will made in this regard. They could have merely indicated an intercurrent respiratory infection, or similar virus, but should still be repeated... My impression is that Ms McNamara is suffering from a very complex and widespread pain disorder which is likely to have both organic and non-organic components."

1. Dr Talbot went on to opine that the Applicant's persistent elbow pain was probably due to her abnormal reaction to pain, brought about by her complex pain disorder - Exhibit 1 T114 p. 285. Further, Dr Talbot opined that the prognosis for the Applicant's current condition was "guarded and uncertain". He was "pessimistic about her chances of complete recovery" - Exhibit 1 T114 p. 285.
2. Dr Talbot was of the view that the then current medical treatment provided to the Applicant, appeared to be "singularly ineffective" - Exhibit 1 T114 p. 287. He was of the firm view that the Applicant would benefit from being referred to a residential pain management program - Exhibit 1 T114 p. 287.
3. The Applicant was next examined by Dr Benjamin Cass, Orthopaedic Surgeon, on

26 June 2012. In his report of the same day, Dr Cass opined that the Applicant would "not benefit from further surgical intervention". Dr Cass then made the following observations, which are consistent with the conclusions reached by Dr Talbot - Exhibit 1 T119 p. 311:

"... I agree with Dr. Damiani that the repair is intact in the left shoulder. Interestingly, potentially a little more bone could be taken form the acromion on the right but I am not certain this is going to help any of Christine's symptoms. I agree with the idea of her being seen at the ADAPT pain clinic to try and learn to manage her pain. Her predominant finding on physical examination is complete loss of the glenohumeral range of motion, retraction and control so work must be at her scapular to retract, stabilise and support this, not with hands on massage and therapy, but with her own active exercise program. Potentially she would benefit from exercises in the water, purely based on scapular retraction, rotation, elevation, strength and stability and I do feel that with her elbows she should avoid Cortisone injections or surgery but potentially a PRP course of injections, two to three to each of the medial lateral epicondyles may give some relief."

1. In accordance with the recommendations of Drs Talbot and Cass, the Applicant actively participated in the seven week ADAPT program, with stage 1 (three weeks in duration) at the Royal North Shore Hospital, Sydney. The report for Stage 1, which was prepared on Professor Michael Nicholas' behalf, was positive, noting that the Applicant had:

"made a number of important gains in the program to date. These include reducing reliance on medication, improved confidence in managing persisting pain without aids and improved level of activity." - Exhibit 1 T121 p. 316.

1. Professor Nicholas made five specific recommendations. Of relevance to this matter is the third recommendation - Exhibit 1 T121 p. 320:

"Ms McNamara should avoid recommencing ceased medications and other passive treatment modalities which have no evidence of lasting effectiveness and risk reinforcing passivity in the patient (eg. massage, heat treatments, prolonged rest/avoidance of most activities)."

1. Professor Nicholas again made this recommendation in the final (discharge summary) ADAPT Program report of 18 December 2012 - Exhibit 1 T127 p. 337.
2. The Applicant was next examined by Dr Sandra McBurnie, Consultant Occupational Physician, on 10 January 2013. Dr McBurnie opined that the Applicant had chronic bilateral shoulder pain post-surgery, with persistent bursitis, as well as bilateral medial and lateral epicondylitis. However, Dr McBurnie was of the view that the Applicant did not have any features of complex regional pain syndrome, other than some increase in sensitivity to light touch on the skin around her left shoulder - Exhibit 1 T128 p. 347.
3. Comcare then referred the Applicant to Dr Peter Wilkins, Consultant Occupational Physician, who examined her on 18 January 2013. In his report of 22 January 2013,

Dr Wilkins made the following diagnosis - Exhibit 1 T129 p. 361:

"In my opinion, Ms McNamara's condition is best characterised as a fibromyalgia syndrome affecting particularly her shoulders and upper limbs, with some involvement also of the left scapular region.

Fibromyalgia is a condition characterised by localised signs and symptoms of myofascial pain where no specific underlying disorder has been identified. It always involves the presence of a number of discreet 'trigger spots' where local pressure reproduces more widespread pain. It is frequently refractory to treatment, and its progression or regression in individuals is unpredictable."

1. The Applicant returned to work on 7 July 2013 for three hours, two days per week. This continued until 20 September 2013 - Exhibit 1 T143 p. 406. The return to work was, ostensibly, successful, and it was reported that the Applicant "enjoyed her short return to work and found her colleagues and her supervisor very supportive." - Exhibit 1 T142 p. 404. The return to work ceased by 20 September 2013, as she was 36 weeks pregnant, and left on maternity leave and subsequently on recreation and long service leave. The Applicant gave birth to a baby boy on 4 October 2013 - Exhibit 1 T144 p. 408.
2. As of September 2013 the Applicant continued to undergo - Exhibit 1 T143 p. 407:
   • weekly massage;
   • hydrotherapy with Capital Hydrotherapy;
   • physiotherapy with Canberra City Osteopathy Centre;
   • monthly psychology sessions; and
   • acupuncture.
3. After the birth of the Applicant's first child, she developed symptoms in her left wrist which were thought to be consistent with de Quervain's tenosynovitis - Exhibit 1 T149 p. 415. Subsequently, with no improvement in her condition, the Applicant underwent surgery in July 2014 - Exhibit 1 T161 p. 444.
4. On 15 August 2014, Comcare determined to reduce the amount of physiotherapy that it would fund in the three month period commencing 4 August 2014 with a total cessation of funded physiotherapy by 28 October 2014 and a discharge to self-management - Exhibit 1 T151 pp. 422 - 423.
5. On 25 October 2014, the Applicant sought a review of that decision (Exhibit 1 T153 pp. 426 - 427) and was supported, inter alia, by a report dated 14 November 2014 from Dr Yuille - Exhibit 1 T155 p. 429.
6. On 12 December 2014, the Comcare Review Officer completed her reconsideration and affirmed the earlier decision - Exhibit 1 T160 p. 438. In reaching this decision, the Review Officer noted that while she did not find that physiotherapy treatment was reasonable treatment for the Applicant to receive after 28 October 2014, Comcare was unable to deny future entitlements and the matter was remitted to the Applicant's Claims Services Officer to determine future entitlements, if required, at that time - Exhibit 1, T160 p. 440.
7. The Applicant was assessed by Dr Nicholas Burke, Consultant Occupational Physician, on 9 January 2015. Dr Burke prepared a very detailed report, which is dated 15 January 2015. It provides useful information about the state of the Applicant's health at that time. In the section of the report headed "Current Status", Dr Burke provided the following information - Exhibit1 T161 p. 445:

"Ms McNamara continues to describe quite significant and wide ranging symptoms. Her left wrist has remained problematic since the time of the surgery in July 2014. She continues to have significant issues with repetitive/forceful activities including gripping of her left wrist.

She continues to report significant ongoing symptoms. She indicated in a priority order that her symptoms mainly relate to her left shoulder, left elbow, left shoulder blade, left wrist, right elbow, right shoulder and to a lesser extent her right wrist.

In her left shoulder there is pain over the surgical site. The pain tends to be associated with overhead or reaching activities or any other significant activity involving her left shoulder.

In the left shoulder blade there is a deep ache and it has a neural component. It tends to be relieved by massage and postural work. It tends to be made worse by sitting, driving, with variations in posture, if she is stressed and if she gets poor sleep.

Her sitting tolerance is quite low. The shoulder blade can feel on occasions stuck and trapped. She can experience symptoms associated with folding tea towels, washing her hair particularly and causing pain in her elbows.

In her left elbow she has pain over both medial and lateral epicondyles both right and left. The pain on the outside of her elbow (lateral epicondyle) is sharp. The pain on the internal aspect, medial aspect she described more as a bruising. She has an associated tight forearm pain. The pain tends to be made worse by any frequent activity she that she may perform. (sic)

Her left wrist remains problematic. She gets a 'searing pain' at night. This can keep her awake at night. She has a nervous type sensitisation in her forearm. It is difficult to touch her forearm, particularly in the region of the surgery. Any forceful activity of the hand/wrist tends to result in problems and pain.

In her right shoulder she has pain over the tip of her right shoulder. This pain is less erratic and has less of a neural component. The pain tends to be made worse by overhead activities, movement and housework type activities.

She also described chronic pain affecting the upper torso: the ribcage, the pectoral region, total hip replacement triceps and her mid back and lower back region. She does not experience any major pain symptoms in her lower limbs.

She gets 'pins and needles' and tingling, mainly affecting her elbows and extending into the forearms and hands. In her hands the symptoms and 'pins and needles' mainly affect the radial three digits. She has never had any nerve conduction studies done."

1. Dr Burke was emphatic that a return to work would be counter-productive. He opined - Exhibit 1 T161 p. 448:

"It has been proposed that she return to work initially three hours a day, two days a week and increase up to four hour a day two days a week...

At this stage I do not believe a return to work is indicated. I consider there is a significant risk of exacerbation of symptoms associated with a return to work. Even if restrictions and safeguards are enacted, such as were in the past, I believe there remains a significant risk of exacerbation of symptoms. This particularly relates to de Quervain's tenosynovitis in her left wrist, which remains significantly problematic. In reality her whole left upper limb remains a significant issue. I believe irrespective of the safeguards which are put in place, there would be a significant residual risk of exacerbation of symptoms if she did return to the workplace."

1. Dr Burke diagnosed the Applicant as suffering from "chronic pain disorder affecting the upper limbs" and was of the opinion that her "prognosis is poor" - Exhibit 1 T161 p. 448.
2. At the time Dr Burke assessed the Applicant, she was receiving a massage each week, although, her physiotherapy and psychological treatment had been discontinued - Exhibit 1 T161 p. 446. Dr Burke answered in the affirmative to the Question regarding whether the Applicant was receiving appropriate medical treatment for her medical conditions - Exhibit 1 T161 p. 449.
3. When the Applicant was assessed by Dr Burke she was pregnant with her second child, who was born in May 2015 - Exhibit 3 p. 6.
4. On 13 August 2015, Comcare made a determination, following a claim made by the Applicant, for household or attendant care services. The Applicant reported a safe lifting limit of 3 kg, with her then first-born son weighing approximately 12 kg. At that time, she had only recently given birth to her second child and reported severe pain in both shoulders and upper arms. This resulted, it was claimed, in the Applicant being prevented from safely holding and carrying her newborn child - Exhibit 1 T168 p. 476. The Comcare delegate accepted that compensation be payable for household services for two hours per week up to and including 12 February 2016 and child care services for four hours a day, three days a week, up to and including 12 February 2016 - Exhibit 1 T168 pp. 475 - 476.
5. The Applicant was next referred by Comcare to Dr Sumant Kevat, Consultant Rheumatologist. He assessed the Applicant on 14 December 2015, and in his report of 18 January 2016, described her present activities as follows - Exhibit 1 T173 p. 489:

"She described her current household management as 'chaotic'. Her husband does most of the household chores. She can contribute by hanging out light clothes and cutting up soft vegetables. Home help for 12 hours a week was provided until May 2015. She stated that she lacks a support network from family and friends, and her husband's leave is now exhausted. She has been attempting to do exercises at her home gym for the last two months. She said that she was previously on 14 different medications for her pain management, but this has now been rationalised to 35 mg a day and she takes slow release paracetamol and temazepam. She also occasionally takes Nurofen. Many of the medications she previously used produced adverse drug reactions. She has a weekly massage, and has physiotherapy from time to time according to Comcare's approval, which she described as 'erratic'. She has just been approved for further psychological therapy..."

1. Dr Kevat made the following diagnosis of the Applicant - Exhibit 1 T173 p. 491:

"Ms McNamara suffers from a chronic pain syndrome involving her shoulders, secondary to aggravation of bilateral shoulder bursitis. Chronic upper limb pain syndromes occur usually in the setting of computer related work with biopsychosocial causation. The origins and progression are highly individual."

1. In response to a Question as to the Applicant's pre-existing or underlying condition,

"The radiographic evidence indicates that Ms McNamara has type 3 acromion, which more likely than not is the predisposing factor for subacromial bursitis with impingement. This condition has been aggravated by her occupational activities."

1. Dr Kevat went on to opine that the "aggravation has ceased", and that the "complaint has evolved into a chronic pain syndrome". However, he did "not agree with the diagnosis of fibromyalgia syndrome" - Exhibit 1 T173 p. 491 - 492. As with other medical experts, Dr Kevat was pessimistic about the Applicant's prospects for recovery. He was of the opinion that the Applicant "will more likely than not continue to have chronic shoulder pain". As to the relationship between her condition and her employment, Dr Kevat opined that the "chronic pain was initiated while she was at work in her employment, and it is now persistent, being aggravated by domestic factors" - Exhibit 1 T173 p. 493.
2. Dr Kevat was questioned about the reasonableness of the various medical treatments the Applicant had received over the years, including: surgical interventions, Platelet Rich Plasma injections in the shoulders, physiotherapy, hydrotherapy and massage therapy. Dr Kevat opined that "all medical treatment was reasonable for Ms McNamara to obtain in the circumstances." - Exhibit 1 T173 p. 494.
3. Dr Kevat was asked follow-up Questions by Comcare and prepared a supplementary report which is dated 23 February 2016 - Exhibit 1 T177 pp. 519 - 521.
4. In response to Questions relating to what domestic duties the Applicant could and could not perform, Dr Kevat answered - Exhibit 1 T177 p. 520:

"She is unable to perform any moderate to heavy tasks involving her shoulders and right wrist. Examples include vacuuming and hanging out heavy washing, as well as lifting pots and pans. She is unable to mop the floor or clean the bathroom and shower...

She can perform short duration light tasks involving the upper limbs, such as cutting up soft vegetables and minor wiping of surfaces."

1. Dr Kevat was informed that at that time the Applicant had received 138 physiotherapy sessions, 118 hydrotherapy sessions, 282 massage treatments and 14 acupuncture sessions. In response to a question as to which of those treatments was the most effective in treating and alleviating the Applicant's diagnosed injuries, Dr Kevat opined - Exhibit 1 T177 p. 520:

"With regard to treatment, her current medications are appropriate. In terms of physical treatments, she should be given a self-managed exercise program with periodic review, approximately monthly, by a physiotherapist. Massage is a passive therapy with no evidence base to demonstrate its value; however, in individual cases there is an argument to say that it assists in maintaining symptom control in patients with chronic pain. In Ms McNamara's case I would suggest that massage be offered monthly, alternating with the physiotherapy visits. I would recommend continuation of psychological therapy in view of her lack of family and social support."

1. On 7 March 2016, Comcare determined to extend the household and child care services previously agreed to until 1 May 2016, and by a further determination of 3 May 2016 these services were extended until 1 July 2016 - Exhibit 1 T178 pp. 525 - 527; T182 pp. 546 - 548. This assistance was, in turn, extended by Determinations of 5 August 2016 and 25 October 2016 until 15 January 2017 with provision also for gardening assistance of two hours every three months - Exhibit 1 T194.1 pp. 582 - 584; T195 pp. 585 - 587.
2. Comcare sought further advice from the Applicant's treating GP, Dr Yuille. On 3 April 2016, Dr Yuille provided a report in which she answered a number of questions posed by Comcare. Importantly for this matter was the second Question, namely, the type of treatment Dr Yuille had recommended for the Applicant's condition and the clinical and functional goals of the proposed treatment. Dr Yuille's response was as follows - Exhibit 1 T179 pp. 528 - 529:

"In this type of condition generally physiotherapy plus an exercise programme are recommended for treatment plus pain management strategies/programmes. Psychological therapy is also usually recommended to help in the management of chronic pain. There is also a role for pain modulating medication. These treatment strategies have all been tried for Ms McNamara.

Normally continuing physiotherapy is not advocated if improvement is not being achieved and the condition has become chronic. I have continued to recommend physiotherapy and massage treatment because of Ms McNamara's report that it helps alleviate her symptoms and prevents deterioration. During the times where treatment has been stopped her condition does appear to have deteriorated in that she experiences an increase in pain and reduced function. I have no reason to doubt what she reports. I therefore continue to recommend physiotherapy and massage treatment but I don't have level 1 or level 2 evidence for so doing."

1. In response to the next Question about the effectiveness of the treatment to date,

"...response to treatment to date has been limited...

Ms McNamara thinks that the strategies undertaken have helped her manage her pain better and she believes that the physiotherapy and massage treatment help alleviate her symptoms and prevent deterioration. This obviously is a good thing but the treatment is not curative, nor does it seem to be achieving a sustained improvement in her condition."

1. Dr Yuille was also asked about the expected date by which the treatment goals would be achieved, and how the Applicant would be transitioned to independent self-management. In response, Dr Yuille observed - Exhibit 1 T179 p. 529:

"Given that treatment goals have not been met in the last several years in that there has been no significant improvement with treatment I am not able to give a date whereby this would be achieved. At present we are helping to alleviate symptoms and prevent deterioration..."

1. On 13 April 2016, the Applicant was assessed by Dr Sean Low, Consultant Occupational Physician. Dr Low was briefed with, and referred to, the reports of Drs Burke, Kevat and Yuille, in his report of 27 April 2016 - Exhibit 1 T 180 pp. 530 - 538.
2. At the time of the assessment the Applicant was receiving physiotherapy twice a week and weekly massage therapy - Exhibit 1 T180 p. 533. Dr Low was not convinced of the efficacy of ongoing physiotherapy or massage therapy - Exhibit 1 T180 pp. 535 - 536:

"In the absence of any objective identifiable condition, I do not consider that further passive treatment such as physiotherapy or massage therapy will result in further gains.

Ms McNamara has stated that she has achieved some improvements through the ADAPT Program and I suggest the way forward is to engage a psychologist experienced in pain management."

1. Dr Low opined that the Applicant's prognosis was "poor" - Exhibit 1 T180 p. 536.
2. In response to the reports of Drs Kevat, Yuille and Low, Comcare made a determination on 5 August 2016 - Exhibit 1 T187 pp. 566 - 569. In the Determination reference was made to the "Clinical Framework for the Delivery of Health Services" ("the Clinical Framework"). In particular reference was made to the following principles for treatment as set out in the Clinical Framework:
   • it demonstrates effectiveness;
   • it has a biopsychosocial approach;
   • it empowers you to manage your condition independently;
   • it is goal focused; and
   • it is evidence based.
3. The Comcare delegate quoted from the reports of Drs Yuille and Low and made the following Determination - Exhibit 1 T187 p. 568:

"Both Independent Specialists agree that passive therapies are not assisting you in alleviating the symptoms of your current condition. There (sic) opinions are in line with the Clinical Framework for the Delivery of Health Services Framework which states: 'failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain and long term disability'

Moreover, Comcare expects medical treatment to achieve the best possible health outcomes for injured people. This includes treatment providers working with injured persons to help them manage their condition(s) independently.

Our records indicate that you have received 287 massage sessions to date. As there has been no significant improvement in your condition, the amount of treatment provided has not been beneficial in treating the effects of your compensable condition.

Based on the evidence before, I consider continued Massage treatment does not meet the legislative requirements of section 4(1) and 16(1) as the evidence has not demonstrated how massage treatment meets the principles of the clinical framework for the delivery of health services.

I find it reasonable, as you have had continuous treatment over an extensive period of time, not to stop massage treatment entirely and reduce your treatment to allow time for you to slowly transition to self managing your condition and implement strategies to assist you in a possible return to work in the near future."

1. The Comcare delegate determined that the Applicant could receive a further 16 massage treatments in the period from 15 August 2016 to 1 April 2017, but none thereafter.
2. The Applicant also provided to Comcare a Treatment Notification Plan from her physiotherapist, Mr Martin Pogson dated 11 October 2016 - Exhibit 1 T192 pp. 575 - 577.

Mr Pogson proposed a further twelve physiotherapy treatments over 24 weeks - Exhibit

1 T192 p. 576. 3. On 7 November 2016, the Comcare delegate made a determination that compensation was not payable for further physiotherapy treatment and accounts would not be paid post the discharge date of 9 October 2016 - Exhibit 1 T197 pp. 590 - 591. 4. The Comcare delegate gave the following reasons for this decision - Exhibit 1 T197 pp. 590 - 591:

"Our records indicate that you have received 147 sessions of physiotherapy since 2009. Recently you have reported that your condition has deteriorated. This indicates that although you have been having regular physiotherapy treatment to alleviate the symptoms of your current condition, it has not provided you with any therapeutic benefits.

Moreover, a peer to peer discussion took place in April 2016 between our clinical panel physiotherapist and your physiotherapist and it was decided that you receive an additional 6 sessions of treatment to provide you with strategies to enable self management of your condition and subsequent discharge from this treatment...

It is reasonable to conclude that the provision of further physiotherapy treatment would not be in line with the Clinical Framework for the delivery of Health Services, as a total of 147 sessions indicates a lack of therapeutic benefit and it also demonstrates that this treatment did not empower you to manage your injury."

1. As previously noted, on 30 January 2017, the Comcare review officer reconsidered both Determinations and affirmed each of them - Exhibit 1 T 214 pp. 978 - 982.
2. A hearing was convened in Canberra on 5 - 7 June 2018. The Applicant was represented by Mr Jason Moffitt and Comcare by Mr Michael Snell of Counsel. The Applicant appeared in person, gave evidence and was cross-examined. The Tribunal also had the benefit of receiving evidence from the Applicant's husband, Mr Paul Anderson, as well as a number of medical witnesses: Drs Garth Eaton, Paul Phillips and Tony Kostos.

1. In addition to the medical reports and assessments outlined above, the legal representatives for both the Applicant and Comcare obtained additional expert opinion evidence. The Tribunal had the benefit of both reading the various reports, and in the instance of Drs Eaton, Phillips and Kostos hearing their oral evidence.
2. Outlined below is the additional medical evidence before the Tribunal.

1. Dr Eaton is an Occupational Physician and the Applicant was referred to him by her legal representatives. Dr Eaton interviewed and examined the Applicant on 8 February 2018 and prepared a report dated 14 February 2018 - Exhibit 2. Dr Eaton was fully briefed, and his report discloses his perusal of 46 reports and documents as well as various radiological reports spanning from 2009 to 2017.
2. On examining the Applicant, Dr Eaton made the following observation - Exhibit 2 p. 10:

"There were minimal mildly tender spots around the body which were not consistent with superficial allodynia or fibromyalgia. However there were a few areas of deep tenderness around the shoulders."

1. Under the heading "Diagnosis", Dr Eaton opined - Exhibit 2 p. 15:

"Chronic widespread pain syndrome.

Persistent severe bilateral shoulder, upper limb and elbow pain and associated dysfunction.

Previous bilateral shoulder impingement syndrome, bursitis, tendinopathy requiring surgical decompression etc as described in operation reports.

Chronic bilateral lateral and medial epicondylitis and extensor complex strain, tendinopathy and tears."

1. Dr Eaton made the following observations under the heading "Further Treatment/Management" of the Applicant - Exhibit 2 p. 15:

"Further treatment should include the continuation of a strengthening and stretching exercise regime, prescribed medications, PRP injections, possible autologous tenocyte transfer to the elbows, further limited physiotherapy and massage as considered reasonable. Further psychological counselling as considered appropriate should occur."

1. Dr Eaton was pessimistic about the Applicant's prognosis. He was of the opinion that she would experience ongoing pain and dysfunction in the affected areas of fluctuating severity indefinitely. He then went on to provide the following observations - Exhibit 2 pp. 15 - 16:

"I have perused the multiple reports provided which detail all aspects of

Ms McNamara's conditions. There appears to be reasonable consensus that

Ms McNamara developed a chronic pain disorder and required treatment with chronic pain management delivered through a multidisciplinary pain management program. The reports contain historical accounts of the development of the various musculoskeletal conditions subsequently diagnosed after the initial diagnosis of an occupational overuse injury/cervicobrachial pain syndrome.

It appears that Ms McNamara developed extreme levels of pain with the various musculoskeletal conditions which normally would not cause such long-term levels of major disability and incapacity. In 2008 Ms McNamara was diagnosed by clinical psychologist Sophie Mitchell with a pain disorder associated with both psychological symptoms and a general medical condition...

Associated with Ms McNamara's chronic pain and dysfunction have been symptoms of anxiety and depression which commonly occurs. Ms McNamara's shoulder condition was further complicated by the development of frozen shoulder, a very painful condition which would have delayed her recovery after the surgical procedures.

I note Dr John Talbot, Dr Sumant Kevat, Dr Sean Low, Dr Nicholas Burke and

Dr Geoffrey Speldewinde all diagnosed chronic upper limb pain syndrome or widespread pain syndrome. The diagnosis of fibromyalgia syndrome was not accepted by those specialists. I note in Dr Kostos' initial and supplementary reports he opines that Ms McNamara has suffered with classical fibromyalgia and this condition had occurred continuously since her symptoms first developed. I disagree with his assessment and believe that Ms McNamara's current diagnosis is principally one of chronic widespread pain syndrome occurring on a background of her various musculoskeletal strain injuries and multiple invasive procedures.

Despite the underlying pathology evident on various investigations such as the epicondylitis and the shoulder impingement syndrome etc the intensity of pain and disability experienced is greater than what would usually be expected. This is because there is likely to be central sensitisation of nociception associated with a chronic pain disorder. This is why the various interventions multiple surgical and injection therapy therapies have not resulted in the expected full resolution of her condition."

1. Dr Eaton also dealt with the question of whether the Applicant's employment had contributed, to a significant degree, to her current condition - Exhibit 2 p. 17:

"Ms McNamara reports very intensive demanding periods of intense work activity involving intensive keyboarding and mouse work. This resulted in the development of bilateral upper limb pain and dysfunction which historically did not resolve completely as would have been expected noting the treatment provided. While there have been periods of improvement due to her various interventions, including surgery and injection therapy, it is likely that at some stage, during the extended period of the clinical management of her various conditions, a pain disorder developed which has been refractory to all forms of treatment with regard to complete resolution of her symptoms. Temporary symptomatic relief has only been achieved.

The precipitating factor in the development of her current condition and the long sequelae post injury, in my opinion, were the workplace factors, largely computer-related, which occurred in a very demanding, stressful environment with a very high workload. This resulted in the initial upper limb musculoskeletal strain injuries..."

1. Dr Eaton gave evidence to the Tribunal on 6 June 2018. He re-iterated his diagnosis of chronic widespread pain syndrome and discounted the alternative diagnosis of fibromyalgia. He opined that, while widespread pain syndrome is usually associated with some event or trauma, fibromyalgia has, typically, no known cause. The Applicant's physical condition of the upper limbs predated the onset of chronic widespread pain syndrome. In this instance, the Applicant's level of pain was at a higher level than would normally be related to her physical condition, however, it was consistent with the development over time, of a chronic pain syndrome - Transcript ("Tr.") 6.06.2018 p. 73.
2. Dr Eaton went on to testify that, in his opinion, the Applicant's pain will continue and that she obtains relief from massage therapy. He conceded that massage therapy is a passive therapy, and usually it is desirable to move patients away from reliance on passive therapies. Nonetheless, with her level of pain, the utilisation of massage therapy as a means of controlling the pain, albeit temporarily, was appropriate.
3. Dr Eaton conceded that Comcare funded massage therapy should not go on forever and there needed to be a plan in place to gradually reduce the frequency of such therapy. He supported the development of Pain Management Programs that would help wean the Applicant off such passive therapies - Tr. 6.06.2018 p. 77.
4. Under cross-examination, Dr Eaton agreed that he was not a rheumatologist and that he assessed the Applicant in 2009 and provided a report to Dr Yuille dated 18 April 2009 - Tr. 6.06.2018 pp. 80 - 81. In that report, Dr Eaton specifically recommended that the Applicant be further assessed by a rheumatologist - Exhibit 1 T208.4.36 p. 706. Mr Snell read from that letter, and set out below are relevant extracts:

"As you know Christine McNamara has participated in a programme at the Canberra Injury Management Centre. While there was some improvement in her condition she continued to experience cervicobrachial pain which she believes would still be best managed by passive therapies such as massage etc. However she did indicate that the strategies she has learnt at CIMC are helpful.

Christine has decided that she would prefer to return to the therapies which she previously experienced, at least (sic) give her temporary relief. This is understandable but disappointing that she was unable to move to a sustained more proactive management approach...

perhaps she should have a further rheumatological assessment with arthritis/antibody profile. ESR, CPR etc. in case of connective tissue disorder etc. and obtain a second opinion from another rheumatologist."

1. Dr Eaton agreed that the Applicant was resistant to the advice he gave her to move away from passive therapies and, in particular, massage therapy. Further, Dr Eaton agreed with the proposition put by Mr Snell that, if the Applicant had weaned herself off massage therapy at that time, her outcome would have been better - Tr. 6.06.2018 p. 82.
2. Mr Snell put to Dr Eaton that the Applicant had been over medicalised and over treated. Dr Eaton, while not disagreeing, said that the Applicant had been treated by good clinicians along the way, and had always presented as a patient who was in pain. He agreed that the least surgical intervention the better, and further agreed that the current outcome for the Applicant was as he foresaw if she failed to accept his advice in circa 2009 - Tr. 6.06.2018 p. 83.
3. Dr Eaton did not agree that the Applicant was a 'concrete' thinker, that is, a person whose views cannot be changed, but that she was amenable to strategies and change - Tr. 6.06.2018 p. 83.
4. On the question of chronic pain syndrome, Mr Snell asked if it is productive of pain in areas where there has not been an organic injury. Dr Eaton said that chronic pain syndrome does not necessarily follow an anatomical pattern because of the involvement of the central nervous system - Tr. 6.06.2018 p. 91.
5. Dr Eaton testified that chronic pain syndrome was now much better accepted, but, when asked by Mr Snell how many patients he has treated with this syndrome, outside of the compensation context, he answered that it was a fairly small percentage - Tr. 6.06.2018 p. 91.
6. When questioned about why he had rejected a diagnosis of fibromyalgia, Dr Eaton said that the cause of fibromyalgia is unknown, whereas there is now much more information on the cause and course of chronic pain syndrome. Fibromyalgia as a diagnosis was an "extreme view", but he conceded that there are instances of "cross-overs" - Tr. 6.06.2018 p. 92.

1. As was clarified during the Hearing, Dr Phillips does not hold a degree in medicine, but is a Doctor of Philosophy and is a Psychologist.
2. The Tribunal had the benefit of being presented with a lengthy report of Dr Phillips dated 31 December 2017 (Exhibit 8) and also hearing him give oral evidence.
3. The thrust of Dr Phillips' evidence was his conclusions drawn from testing the Applicant across MMPI-2, MMPI-2-RF, PAI and SIMS. MMPI is the acronym for the Minnesota Multiphasic Personality Inventory. It is a standardised psychometric test of adult personality and psychopathology. It was originally released in 1943 and was replaced by an updated version, MMPI-2 in 1989. A version for children was released in 1992 - MMPI-A. The latest, and most controversial version of this publication, is MMPI-2-RF ("Restructured Form") which was released in 2008.
4. Both MMPI-2 and MMPI-2-RF have a "Fake Bad Scale", which is aimed at evaluating individuals claiming personal injuries. This scale is aimed at determining if the patient is "malingering".
5. The testing process and results summary are set out at pages 4 - 9 of Dr Phillips' report. It need only be noted that Dr Phillips opines - Exhibit 8 p. 4:

"Psychometrics have been shown to have greater diagnostic accuracy and malingering detection than clinical interview alone...The tests were administered by iPad. The answers to the questions were entered by the person being assessed into the software of the copyright owner directly. The assessor receives the output of the scores from the software. The assessor has no input into the scores and cannot alter them once entered into the software by the person being assessed."

1. Dr Phillips then provided an extensive and detailed explanation of the multi-method approach undertaken to score a person and then provide a diagnosis. It is not necessary to set out in the body of this decision all of this material.
2. In the Executive Summary of his report, Dr Phillips opined that having administered the above tests, they "indicated Ms McNamara was not malingering" - Exhibit 8 p. 2.
3. Later in his report, Dr Phillips expanded on this finding and observed - Exhibit 8 p. 20:

"59. The absence of an organic process gives rise to three distinctly different possibilities. The first being that Ms McNamara is falsely reporting her symptoms. This is known as malingering. The tests administered within the current assessment have determined that this is almost certainly not the case. Ms McNamara passed all 19 different scales designed to detect malingering. The chance of this being a false positive finding of not malingering is almost 0%, i.e., greater than 99% certainty she is being forthright. Therefore, this possibility has been assessed for and can be rejected based on the evidence of the results of the tests discussed above."

1. Having undergone the testing process, Dr Phillips made the following recommendations - Exhibit 8 p. 3:

"Based on the above report the following recommendations are made:

• Ms McNamara has been shown to have a Somatoform Disorder. This is a genuine mental illness...
• It is critically important to be aware that Ms McNamara is, by the nature of the Somatoform Disorder, unaware that she has a mental illness rather than an organic aggravation to a physical injury...
• The initial causation of a Somatoform Disorder is currently beyond medical scientific knowledge. The diagnostic criteria of the DSM-IV and DSM-5 do not detail a causal mechanism like a stressor or trauma as the necessary cause like they do for adjustment disorder or post traumatic stress disorder.
• It is important to note that Dr Kostos, a Rheumatologist, has stated 'Ms McNamara suffers from generalised fibromyalgia and has done so all along.' He goes on to explain "Fibromyalgia is a pain amplification state of unknown cause. However the condition relates to inherent personality traits, previous life experiences, psychological and social factors, attitudes and beliefs and the adaptability to cope with anxiety and stress.' As the literature has noted "FMS [fibromyalgia syndrome] has been conceptualized by some psychiatrists as a somatization disorder', so it is possible that while Dr Kostos labels the presenting condition generalised fibromyalgia and I label it a Somatoform Disorder we are in principle talking about the same thing but influenced by different theoretical and professional trainings, rather than it being an actual discrepancy of diagnosis. This is akin to the morning star and evening star in the ancient world, they were in the fact the same thing, the planet Venus."

1. Dr Phillips in the part of his report headed "MMPI-2 SYMPTOMATIC PATTERNS", made the following observations based on the clinical testing undertaken - Exhibit 8 pp. 17 - 18:

"40. Scales Hypochondriasis and Hysteria were used as the prototype to develop this report. Her MMPI-2 clinical profile presents a rather mixed pattern of symptoms in which somatic reactivity under stress is a primary difficulty. The client presents a picture of physical problems and a reduced level of psychological functioning. The client is likely to have a hysteroid adjustment to life and may experience periods of exacerbated symptom development under stress. Some individuals with this profile develop patterns of 'invalidism' in which they become incapacitated and dependent on others. Her physical complaints may be vague, may have appeared suddenly after a period of stress, and may not be traceable to actual organic changes. She may be manifesting fatigue, vague pain, weakness, or unexplained periods of dizziness. She may view herself as highly virtuous and she may show a 'Pollyannish' attitude toward life. Such clients may not appear greatly anxious or depressed about their symptoms and may exhibit 'la belle indifference.' Apparently sociable and rather exhibitionistic, this individual seems to manage conflict by excessive denial and repression.

41. In addition, the following description is suggesting by the client's scores on the content scales. She views her physical health as failing and reports numerous somatic concerns. She feels that life is no longer worthwhile and that she is losing control of her thought processes. She appears to have good social skills and tends to deny that she has any problems interacting with other people. She complains about feeling quite uncomfortable and in poor health. The symptoms she reports include vague weakness, fatigue, and difficulty concentrating. In addition, she feels that others are unsympathetic toward her perceived health problems."

1. Dr Phillips re-iterated these findings at the Hearing. He conceded during cross-examination that it was not within his area of expertise to give expert evidence on psychological conditions. Care must be taken when receiving evidence from psychologists, when such persons provide diagnoses of mental illness - see for example R v Kucma [2005] VSCA 58; (2005) 11 VR 472.
2. It is also the case that MMPI, and its various later editions, provide a robust and globally accepted diagnostic tool for assessing a person's mental state. Insofar as the various editions of MMPI are comprehensive, soundly based and universally accepted, they enable a much more objective assessment than one based purely on the intuition, training and aptitude of the assessing psychologist. However, it is a diagnostic tool, and does not have the character of infallibility. Consequently, while careful consideration should be given to the results of MMPI testing, it would an error to accord the findings from such testing undue weight, let alone inerrancy.

1. The Applicant was also assessed on 21 September 2017, at the request of Comcare's legal representatives, by Dr Tony Kostos, Consultant Rheumatologist.
2. In his report of 29 September 2017 (Exhibit 9), Dr Kostos diagnosed the Applicant as suffering from fibromyalgia. Relevant parts of Dr Kostos' diagnosis are set out in the report of Dr Phillips as quoted above. However, it is appropriate, despite some repetition, to set out in detail the findings of Dr Kostos - Exhibit 9 pp. 6 - 7:

"Ms McNamara suffers from generalised fibromyalgia and has done so all along.

Generalised fibromyalgia is defined as chronic widespread pain and tenderness for more [than] three months.

In addition Ms McNamara suffers from failed shoulder surgery and the surgeries that she has had on both shoulders have resulted in adhesive capsulitis on both sides. Adhesive capsulitis is also known as frozen shoulder.

She has also had a left de Quervain's tenosynovitis successfully treated with surgery.

It is quite apparent that there is considerable amount of confusion about the diagnosis in your file today and most doctors whose reports you have enclosed have provided non-evidence based opinions.

The term repetitive strain injury was invented by John Matthews, a non-medical union official in 1982. Therefore it was never a medical condition. When this was subsequently discredited surrogate term such as occupational overuse syndrome, cumulative trauma disorder and cervicobrachial syndrome were proposed as alternative names. However I also note that Dr Eaton in his reports diagnoses cervicobrachial neuropathic pain disorder.

Fibromyalgia is a pain amplification state of unknown cause. However the condition relates to inherent personality traits, previous life experiences, psychological and social factors, attitudes and beliefs and the adaptability to cope with anxiety and stress.

It is unrelated to physical work.

It has been stated that Ms McNamara has bilateral rotator cuff problems associated with subacromial bursitis but her work would not cause these problems. Problems such as this do not occur when patients work with arms by their side. However activities that require repeated arm reaching and elevation can be associated with a development of these conditions.

The problem here is that the results of investigations were used to establish a diagnosis when all investigations on the shoulder are unreliable and abnormality such as Ms McNamara has had are frequently seen in asymptomatic individuals.

Therefore it was entirely predictable that the surgery would fail.

Ms McNamara does not have lateral or medial epicondylitis and again abnormalities are frequently seen on investigations which are seen in asymptomatic individuals.

While she may have had temporary benefit from injections these sort of procedures have a strong placebo effect and inevitably they will not continue to work.

However her doctors by subjecting Ms McNamara to all of these unnecessary interventions have only served to medicalise her condition further and contribute to her current condition."

1. Dr Kostos was, therefore, of the opinion that the Applicant's: "employment at the Department of Environment and Energy did not contribute to her current condition" - Exhibit 9 p. 8.
2. At the request of the legal representatives of Comcare, Dr Kostos prepared a supplementary report dated 5 February 2018 - Exhibit 11. In that report, apart from dealing with the qualifications of Dr I Duncan, he re-iterated his opinions set out above.
3. Dr Kostos gave evidence on 7 June 2018. He stated that he had been in practice in Australia since 1985. His testimony mirrored the way in which he wrote his reports. He was extremely confident in his opinions and was dismissive of other medical experts who reached a conclusion that was not in accord with his position. This is not to suggest that his views were not soundly based or persuasive, but the tenor of his evidence strongly suggested that he was not receptive to opinions he did not agree with, and was somewhat absolutist in his approach.
4. Dr Kostos testified that fibromyalgia is a condition routinely dealt with by rheumatologists, but is poorly understood by clinicians, especially surgeons. He was of the view that repetitive strain injury, occupational overuse syndrome and other conditions of a similar ilk, were all actually fibromyalgia. Persons suffering from this condition are not injured, but are in a pain amplification state. Normal activities are registered by the sufferers as being painful. The "volume control" of a sufferer's central nervous system is "turned up".
5. Dr Kostos re-iterated his view that fibromyalgia is related to psychological and personality traits and is not caused by physical trauma. It is a multifactoral problem and feeds in to other conditions such as headaches, sleeplessness, restless legs, disturbed sleep et cetera.
6. Mr Snell put to Dr Kostos that the Applicant had stated that when she did not have access to massage therapy and physiotherapy her condition worsened. Mr Snell also referred to Dr Eaton's view that the only way to help relieve the Applicant's pain, in the short term at least, was to provide her with short periods of massage therapy and physiotherapy.
7. Dr Kostos disagreed with Dr Eaton. He testified that providing ongoing massage therapy and physiotherapy would reinforce the Applicant's perception of ill-health, and, in fact, would be a reward mechanism for complaining of extra pain.
8. Mr Moffatt cross-examined Dr Kostos, and specifically referred him to the various medical reports which were not in accord with his diagnosis.
9. First, Mr Moffatt referred to the diagnosis of Dr Pascall that the Applicant was not suffering from either primary or secondary fibromyalgia - Exhibit 1 T64 p. 169. Dr Kostos testified that he disagreed with Dr Pascall's diagnosis.
10. Next, Mr Moffatt referred to the operation report of Dr Maurizio Damiani with respect to the Applicant's right shoulder surgery that took place on 14 September 2010 - Exhibit 1 T68 p. 189. He asked Dr Kostos if Dr Damiani had performed incorrect surgery. Dr Kostos opined that the surgery had failed and it was predictable that it would do so. He repeated his view that there was no evidence that the Applicant had subacromial decompression.
11. Dr Kostos was also referred to the report of Dr Talbot (Exhibit 1 T114 p. 284) and he stated that Dr Talbot had contradicted himself because his description of complex chronic pain disorder, was actually fibromyalgia.
12. Dr Kostao was equally dismissive of the reports of Drs McBurnie (Exhibit 1 T128 p. 347), Burke (Exhibit 1 T161 p. 448) and Kevat (Exhibit 1 T173 pp. 490 - 491).

1. Subsection 14(1) of the Act provides that, subject to Part II, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
2. The term "injury" is defined by s 5A(1) of the Act 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;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment."

1. The term "disease" is defined by s 5B(1) to mean:

"(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."

1. Section 16 of the Act provides for the payment of compensation in respect of medical expenses. Relevantly, subsection 16(1) provides:

"(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment."

1. The term "medical treatment" is given an expanded definition by s 4(1) of the Act. Of relevance to this matter is para (d) of the definition, namely:

"(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be".

1. The term "therapeutic treatment", in turn, is defined in s 4(1) as including:

"an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury."

1. It was held by Finn J in Comcare v Watson (1997) 73 FCR 273 at 276 - 277 that a course of treatment designed to, or aimed at, alleviating the pain caused by a injury or disease, is therapeutic treatment. His Honour went on to hold that a treatment is "therapeutic" not only where the object is to cure an injury or disease, but it also includes treatment aimed at providing short-term pain relief.
2. A key issue in the disposition of this matter is the reasonableness of the Applicant continuing to obtain massage therapy and physiotherapy. An important determination on the question of reasonableness is Jorgensen and Commonwealth of Australia [1990] AATA 129; 23 ALD 321 ("Jorgensen"). The question in that matter was whether an IVF procedure was reasonable treatment. In that case the Applicant had suffered compensable conditions of salpingitis and hydrosalpinx resulting in her being unable to conceive normally. Gray J said (at 325):

"In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation. Were it to be otherwise, decision-makers would be faced with questions of great difficulty, such as whether the appearance of a particular person prior to suffering injury was such as to make it unreasonable to consider cosmetic surgery, or whether repair of a particular injury was appropriate only for persons in some occupations or classes or geographical areas, but not for others."

1. His Honour found that IVF treatment was reasonable in the circumstances.
2. As will be seen from the quoted authorities, short term passive therapies such as massage therapy and physiotherapy can be medical treatment for the purpose of s 16(1) of the Act and may be treatment that was reasonable for the employee to obtain.
3. There have been numerous Tribunal determinations on the reasonableness of an employee continuing to receive massage therapy and physiotherapy treatments. Outlined below are the principles that can be gleaned from those determinations:
   • (a) Subsection 16(1) requires the decision-maker to assess whether it is reasonable for the employee to obtain the medical treatment in the circumstances. As Deputy President Constance highlighted in Comcare and Alamos [2014] AATA 629, it is necessary to consider all of the circumstances, not only the beneficial effects of the particular medical treatment. Deputy President Constance went on to outline a non-exhaustive list of factors that could be considered in resolving this question (at [24]):
     • the benefit of the treatment to the injured worker;
     • the long-term effect of the treatment;
       • whether the treatment is likely to cure the injury or significantly reduce its effects;
     • whether the treatment maintains the status quo;
     • the cost of the ongoing treatment.
   • (b) As is clear from the above list of factors, the decision-maker engages in a weighing exercise. Importantly, as part of that process, a cost/benefit analysis will sometimes be required. In Comcare v Rope [2004] FCA 540; 80 ALD 99 at [70] ("Rope") Stone J observed that a treatment being:

"...'reasonable to obtain in the circumstances' is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis...The tribunal needed, among other things, to weigh the benefit of the PNI treatment against the cost of obtaining it..."

See also Comcare v Holt [2007] FCA 405; 94 ALD 576.

(c) The test of reasonableness is not only contextual, but also temporal. A treatment may be reasonable to obtain for a time, but its continued utilisation may become unreasonable, either because of cost or therapeutic reasons, or a combination of both. This point was explained by the Full Tribunal in Popovic and Comcare [2000] AATA 264; 64 ALD 171 as follows - [28]/177 - 178:

"In relation to the applicant's claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant's current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic...However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object..."

(d) A treatment may also be "reasonable" if it comprises part of a comprehensive plan designed to pro-actively treat the employee's "injury". In short, the reasonableness of the contested treatment must be assessed in the context of the range of medical interventions that person is being given. Thus in Chowdhary and Comcare [1998] AATA 448, the Tribunal observed (at [53]):

"In particular, there is no evidence of any plan to have the physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work."

(e) the test for determining whether the treatment was reasonable for the employee to obtain in the "circumstances" is not a test of reasonableness in absolute or empirical terms, but, whether it was reasonable "in the circumstances" facing the employee. In short, what is reasonable treatment for one employee, having regard to their circumstances, may not be reasonable treatment for another employee with the same injury but experiencing different circumstances - Topping and Comcare [2015] AATA 525 at [36]; Rope and Comcare [2018] AATA 42; 158 ALD 183 at [32]. However, it would be an error to overly focus on subjective factors, lest the decision-maker fall into the error expounded by Gray J in Jorgensen. "Circumstances" properly understood, allows the decision-maker to take into account how the particular "injury" has manifested itself and impacted the employee. A prime example of such an inquiry is the experience of pain. Pain is inherently individual and not capable of rational explanation or measurement. It may be that a particular employee experiences elevated pain levels of a type that are uncommon. Those circumstances can be properly and appropriately factored into the decision-makers inquiry when determining reasonableness. Stone J observed in Rope at [16] factors such as an employee's age, economic circumstances, martial stability et cetera may also be taken into account.

1. There are two issues that need to be addressed in the context of s 16.
2. The first issue is whether the medical treatment sought to be obtained by the Applicant is "in relation" to her compensable condition.
3. As will be seen from the discussion of this issue, its resolution is inextricably intertwined with the question of the nature of the ailment the Applicant is currently suffering. It is the contention of the Respondent that the ailment, or aggravation thereof, that the Applicant is suffering is not a disease within the meaning of s 5B of the Act, because her employment did not contribute to a significant degree.
4. The second issue only arises if the first issue is answered affirmatively. If an affirmative response is evinced, then the next issue is whether the massage therapy and physiotherapy were treatments that were reasonable for the Applicant to obtain in the circumstances.
5. The reviewable decisions deal separately with massage therapy and physiotherapy. However, they are both "passive" treatments, and the evidence before the Tribunal is such that it is not sensible to attempt to differentiate between them when dealing with the test of reasonableness in s 16. Although the Applicant has received more massage therapy treatments than physiotherapy treatments, a close reading of most of the medical reports suggests that the treating doctors put them in the same category. The Tribunal has substantially proceeded on the same basis. Consequently, most of the discussion regarding massage therapy applies to physiotherapy, although, there is a short discussion of physiotherapy which aims to address any specific matters that require comment.

Is the medical treatment sought to be obtained in relation to the injury?

1. The Tribunal has been presented with conflicting and confusing medical reports and evidence as to the correct diagnosis, or labelling, of the Applicant's current medical state.
2. Mr Snell has not raised either in written or oral contentions, an argument based on the principles expounded in Telstra Corporation v Hannaford [2006] FCAFC 87; 151 FCR 253, although if the diagnosis of Dr Kostos was taken to its logical conclusion this would have been a line of argument Mr Snell could have prosecuted.
3. Mr Snell, however, invites the Tribunal to focus on the threshold question, for the purposes of s 16; whether the medical treatment in contention was obtained, and will continue to be obtained, "in relation" to the compensable injury.
4. In this regard, Mr Snell relies on the evidence of Dr Kostos and Dr Phillips.
5. Mr Snell, in the Respondent's Statement of Issues, Facts and Contentions ("RSIFC"), made the following submissions:

"14. The Applicant suffers from a condition, variously described, but most likely best characterised clinically as 'fibromyalgia' (see report of Dr T Kostos of 29 September 2017) or 'somatoform disorder' (see report of Dr P. Phillips of 1 December 2017), being in either case an ailment of unknown aetiology with no contribution by physical activity.

15. The condition is not a compensable condition as it is not 'a disease' within the meaning of s 5B of the SRCA (because employment did not contribute to a significant degree) and therefore not 'an injury'."

1. Before dealing with the medical evidence, it needs to be noted that the term "in relation to" has been given an expansive and generous interpretation. In Kennon v Spry (2008) 238 CLR 366 Kiefel J (as she then was) opined (at [217]) that "'in relation to' is of wide and general import and should not be read down in the absence of some compelling reason for doing so."
2. Reference can also be made to the Tribunal determination of Manns and Comcare [2012] AATA 462 where the following observations were made (at [22]):

"The phrase 'in relation to' has a broad meaning that is not confined to a direct or proximate relationship of cause and effect; it simply signifies that there is some relational connection between two matters. Presently, the relational connection is between the medical treatment Ms Manns obtained and the right knee injuries for which Comcare accepted liability. The closeness of the relational connection must be ascertained 'by reference to the nature and purpose of the provision in question and the context in which it appears.' These are matters of degree, to be determined on the evidence applying the reasonable satisfaction civil standard without resort to indefinite evidence or indirect inferences."

(Footnotes omitted)

1. His Honour Justice Griffiths in Howes v Comcare [2016] FCA 1521 relevantly highlighted that in order for the Tribunal to determine if (in that matter) a medical procedure was in relation to an applicant's compensable injuries, it was open to the Tribunal, and appropriate, that it considered and weighed the conflicting medical evidence.
2. Likewise, it is necessary in this matter for the Tribunal to assess the copious and somewhat conflicting and confusing medical evidence. The evidence is "confusing" because it is manifestly clear that there is no medical consensus on either the label, cause or even impact of the Applicant's current medical condition. Normally the label placed on a medical condition is not determinative of liability under the Act - see Comcare v Mooi (1996) 69 FCR 439 ("Mooi") at 443-444 per Drummond J. This is particularly the case when dealing with diagnoses of mental ailments, because this is an imprecise and constantly evolving area of medicine - see Abrahams v Comcare [2006] FCA 1829; 93 ALD 147 at [21] per Madgwick J. Not only can the label for a particular mental ailment change over time, but it can be labelled differently by different specialities. In this instance it is said that 'fibromyalgia' is the same, or mostly the same, as 'somatoform disorder'.
3. It is, perhaps, enlightening, to appreciate that "fibromyalgia" is more recently referred to in the medical literature as a "syndrome" and not a distinct disease. In short, much of the confusion which permeates the evidence presented to the Tribunal is based on the view held by some that a diagnosis of "fibromyalgia" is determinative of the ailment from a legal perspective. This results in some of the confusion in the evidence before the Tribunal. Some professionals have diagnosed the Applicant with "fibromyalgia", others with "somatoform disorder" and still more with "chronic pain disorder". Again, a reading of the recent medical literature suggests that there is a degree of overlap, perhaps to a major degree, with these ailments.
4. However, even if one only considers the diagnosis of fibromyalgia, further clarification is needed because there is both primary and secondary fibromyalgia. This is not an academic point, as the Applicant has been diagnosed by some experts with fibromyalgia per se and by at least one other (Dr Andrews) with secondary fibromyalgia.
5. Primary fibromyalgia is also known as idiopathic fibromyalgia and its causes are unknown. In contradistinction, secondary fibromyalgia while having similar symptoms to primary fibromyalgia has a physical cause. Possible causes include a physical injury (usually to the upper body), surgery, Lyme Disease, Hepatitis C and Endometriosis.
6. Mr Snell relies primarily on the evidence of Drs Kostos and Phillips, although, there is other evidence that is supportive of a diagnosis of fibromyalgia, including the report of Dr Wilkins.
7. As previously noted, Dr Phillips is not a doctor of medicine and is not a medical specialist. This is not to say that the written and oral evidence he presented was not of assistance or was anything but erudite and convincing. Nonetheless, Dr Phillips, while being able to opine about the results of the diagnostic testing the Applicant underwent, is not able to provide the Tribunal with a definitive medical diagnosis. I accept that he was robustly of the view that the Applicant was not a "malingerer" or liar and was not, in his view, attempting to exaggerate her levels of pain and discomfort. It should be noted that this is a view that is repeated in other medical reports - see, for example, the opinions of Dr Talbot (Exhibit 1 T114 p. 285) and Dr Wilkins (Exhibit 1 T129 p. 362).
8. Dr Kostos presented the Tribunal with a definitive, and, in his opinion, conclusive, diagnosis of the Applicant. He opined that the Applicant "suffers from generalised fibromyalgia and has done so all along" and that it "is unrelated to physical work." - Exhibit 9 pp. 6 - 7.
9. Indeed, Dr Kostos went further, and opined that the Applicant's bilateral rotator cuff problems associated with subacromial bursitis was not caused by her work. Consequently, he concluded that the Applicant's "condition was not related to her physical employment at the Department of Environment and Energy." - Exhibit 9 p. 7.
10. Before turning to the medical experts relied upon by the Applicant, reference should be made to the report of Dr Wong, Rheumatologist of 16 November 2009. Dr Wong made the following diagnosis - Exhibit 1 T38 p. 108:

"She still has persistently raised inflammatory markers. She is currently still quite symptomatic. She has had persistent pain involving the shoulders, the elbows and the wrists. Clinically, she still has generalised tenderness on palpation.

Again, with raised inflammatory markers, it is hard to attribute all of her symptoms to fibromyalgia."

1. In short, Dr Wong, while diagnosing fibromyalgia, discounted a diagnosis that all of the Applicant's pain symptoms flowed from that condition.
2. Dr Wong's diagnosis is consistent with that of Dr Colin Andrews, Neurologist, who assessed the Applicant on 29 September 2009. In his report of 2 October 2009,

"Christine was seen in consultation had Nerve conduction studies today 29/9/2009. She has been in the Department of the Environment for the last 9 years, good worker has spent a lot of time on the keyboard and in 2001 and 2002 developed shoulder pain which was treated with physio massage and subsequently she was found in 2005 to have problems in her wrist put down to a ligamenta's tear there were restricted movements in the wrist which hasn't recovered. She has also noted restriction movement in the right shoulder and on ultrasound has been found to have pathology involving bursitis and ligaments. There has been 2 cortisone injections of the right shoulder one into the left with temporary improvement for about a month. She has multiple tender spots of the pectoral regions, scapular regions buttocks and lumbar region consistent with fibromyalgia which is a diagnosis that has been put forwards....

Impressions - she appears to have problems in the shoulder that has been documented on the studies, in the cervical region there maybe some facet joint strain on the left at 4/5. I think the dominant cause of the symptoms however seems to be a secondary fibromyalgia for which she is already receiving some treatment but one maybe able to improve upon further with addition of agent such as Lyrica that works on neuropathic pain along with the Endep...if she does have fibromyalgia which seems likely it is secondary to her original soft tissue injuries."

1. It will be seen that this diagnosis is far from being fatal to the Applicant's case and is supportive of it. Dr Andrews' diagnosis is that the Applicant's work-related injuries have resulted in the development of a pain syndrome, which he has labelled secondary fibromyalgia. Again, the label is not critical, and he could have labelled this condition as chronic pain syndrome or something else again.
2. The fact that a diagnosis of fibromyalgia is not necessarily fatal to the Applicant's case is starkly highlighted by the report of Dr Wilkins.
3. Dr Wilkins opined that the Applicant's condition was best characterised as fibromyalgia, but then went on to answer in the affirmative a question regarding whether this was related to the Applicant's employment as a general clerk. Further, he answered in a negative to the question regarding whether the fibromyalgia was unrelated to work or was a pre-existing, congenital, constitutional or underlying condition, or the natural progression of an underlying condition - Exhibit 1 T129 p.362. Dr Wilkins then opined - Exhibit 1 T129 p. 363:

"In my opinion, the rigours of her previous employment caused her current condition. Once established, the fact of her attendance at or absence at the workplace became irrelevant."

1. Putting aside the label Dr Wilkins placed on the Applicant's medical condition, the fact is that, applying the test in Mooi, Dr Wilkins opined that she was suffering from a medical condition that was outside the boundaries of normal mental functioning and that this condition was causally related to her employment.
2. There are a number of medical reports which, in any event, discount a diagnosis of primary or secondary fibromyalgia. The first of these is the report of Dr Pascall of

8 August 2010. She specifically rejected a diagnosis of fibromyalgia because there were too few symptoms and signs for that condition - Exhibit 1 T64 p. 169. She opined that a pain syndrome diagnosis as the cause of the Applicant's widespread pain failed to give due recognition to her pathology. As previously noted, Dr Pascall referred to the marked abduction and flexion in the Applicant's shoulders with impingement - Exhibit 1 T64 p. 168. 3. A close reading of Dr Pascall's diagnosis does not discount the presence of a secondary pain syndrome. Rather, she wished to dispel the notion that focusing on one pathology "should not be assumed to rectify all causes for her pain" - Exhibit 1 T64 p. 167. Furthermore, that the primary cause of the Applicant's pain at that time was her upper limb physical condition - Exhibit 1 T64 p. 170. 4. Importantly, Dr Pascall also addressed the relationship between the Applicant's work and her condition - Exhibit 1 T64 p.171:

"The relationship is a secondary one. Work, or activities at work, has contributed to Ms McNamara developing the problem rather than being a prime cause for her having the problem.

It is a matter of her having a predisposition to this type of shoulder condition. The work activities that are implicated is the positioning and use of her arms in front of her body, particularly if the arms were outstretched, and this is more a problem for the arm that uses a mouse than both arms with the hands on a keyboard.

The work activities created the right environment for constant movement of tendons in a cramped space in the shoulder region, and unfortunately, some of the tendons are rubbing up against the bone."

1. Dr Talbot also was unconvinced that the Applicant suffered from fibromyalgia, but nonetheless opined that she had developed a "complex pain disorder" - Exhibit 1 T 114 p. 285 He noted that the Applicant suffered from subacromial impingement syndrome of both of her shoulders, but she complained of disproportionate pain. While Dr Talbot noted that the Applicant's condition developed during her employment, he was not convinced there was a "firm relationship" between her condition and her employment. He concluded that the cause of the Applicant's condition was "simply not known and not understood"." - Exhibit 1 T114 pp. 284 - 286.
2. A somewhat different diagnosis was provided by Dr McBurnie in her report of 14 January 2013. She discounted a diagnosis of complex regional pain syndrome, and instead opined that the Applicant had chronic bilateral shoulder pain post-surgery with persistent bursitis and bilateral medial and lateral epicondylitis. Again, a close reading of Dr McBurnie's report suggests that she too was of the opinion that this condition was causally related to the Applicant's employment - Exhibit 1 T 128 pp. 339 -350.
3. Dr Burke in his report of 15 January 2015, diagnosed the Applicant with chronic pain disorder of the upper limbs - Exhibit 1 T161 p. 448. A reading of Dr Burke's report suggests he was of the opinion it was work related. Interestingly, Dr Burke and Dr Wilkins were essentially of the same opinion, their only difference was the label they placed on the Applicant's condition.
4. The Tribunal was impressed by the report of Dr Kevat, which was clearly written and logically presented. Dr Kevat diagnosed the Applicant with a chronic pain syndrome in her shoulders which was secondary to aggravation of bilateral shoulder bursitis. While he did not agree with the label of "fibromyalgia" he was clearly of the opinion that it was related to her employment - Exhibit 1 T173 pp. 491 - 492. Like Dr Kostos, Dr Kevat is a Rheumatologist, and has the expertise and experience to diagnose chronic pain conditions.
5. Dr Low in his report of 27 April 2016, also diagnosed the Applicant with a "compensable medical condition of non-specific chronic pain affecting her bilateral upper limbs." - Exhibit 1 T180 p. 536.
6. Finally, reference can be made to the report of Dr David Gorman, Consultant General Physician, Pain Management Specialist and Medical Oncologist.
7. Dr Gorman assessed the Applicant on 23 December 2016, and in his report of

14 February 2017 made the following diagnosis - Exhibit 1 T215 pp. 990 - 991:

"I believe the condition is best described as "Non-specific chronic upper limb pain affecting both upper limbs'. This is the diagnosis used by Dr Sean Low in his report of 27 April 2016. I believe this is the most appropriate description. The mechanism is likely to be 'central sensitisation'. Dr Kevat objected to the diagnosis of 'fibromyalgia' presumably because of the focus of the symptoms on the upper limbs rather than the pain being more widespread. The likely mechanism however of 'fibromyalgia' and the 'bilateral upper limb pain' is likely to be similar. The 'occupational overuse' began the process and unfortunately, multiple surgeries, injections and passive therapies are likely to have perpetuated the process."

1. As will be noted from this summary, the preponderance of medical evidence suggests either that the Applicant suffered from the aggravation of her pre-existing upper limb conditions due to her employment, which in turn, led to the onset of a chronic pain syndrome (whatever the nomenclature) or that the Applicant contracted a chronic pain syndrome (of whatever nomenclature) as a result of her work conditions. The Tribunal prefers the diagnosis as provided by Dr Kevat. However, irrespective of this, the conclusion to be drawn is that the Applicant continues to suffer a chronic pain condition which resulted from the performance of her duties as an employee of the Commonwealth.
2. The Tribunal accepts that the alternative diagnosis of Dr Kostos is open, but it is not preferred. It is not preferred not simply because the preponderance of expert evidence is against it, but also because his absolutist position on the label of "fibromyalgia" is incorrect from a legal perspective. The key task of the Tribunal is to lift the veil on medical labelling of ailments and apply the test enunciated by Drummond J in Mooi. While Mr Snell advanced an extremely clear and erudite exposition for Comcare, the label of "fibromyalgia" is not fatal to the Applicant's case. As Dr Gorman observed "fibromyalgia" and "chronic pain syndrome' are terms "often used interchangeably although in their 'pure forms' they are different." - Exhibit 1 T215 p. 993.
3. The diagnostic differences previously discussed illustrate the requirement posed for a decision-maker; namely to interrogate the terminology used by medical experts and focus on the employee's underlying medical condition, its nature, its progress and its cause. In this matter, the evidence plainly discloses that the Applicant suffered a compensable injury and the flow-on effects of that injury persist.
4. Accordingly, the medical treatment sought to be obtained is in relation to the compensable injury, and the first test required by s 16 is met.

1. Since 2008, the Applicant has had approximately 324 massage therapy sessions.
2. In both her written and oral evidence, the Applicant contended that ongoing massage therapy was essential for the maintenance of pain relief and her ability to function. The evidence clearly discloses that the Applicant receives temporary pain relief from massage therapy treatment and her ongoing use of such treatment has been supported over the years by her GP, Dr Yuille.
3. Dr Yuille reported to Comcare on 23 January 2010, that the Applicant "gains symptomatic relief from massage therapy and hydrotherapy" and while conceding that it was not "curative" Dr Yuille submitted that it should continue as "it has given her some relief from her pain. It is difficult to suggest stopping the only therapy that gives her some relief..." - Exhibit 1 T45 p. 123.
4. Two years later, on 10 January 2012, Dr Yuille next reported to Comcare. Dr Yuille was specifically asked about the efficacy of the various treatments that Comcare was responsible for, including massage therapy and physiotherapy. Dr Yuille provided the following response - Exhibit 1 T102 p. 253:

"For over 3 years Ms McNamara has suffered from a complex and debilitating pain condition affecting her upper limbs and torso which as discussed previously I think has 3 components - bilateral shoulder pathology, bilateral epicondylitis and a neuropathic pain syndrome. All the above treatments have been aimed at improving one or all of these components and have been recommended by either myself or her treating specialists. I believe that perhaps, apart from longterm massage therapy, they are all medically well recognised treatments for musculo-skeletal conditions of the sort that Ms McNamara suffers. The massage therapy helps Ms McNamara with symptom relief and has been continued on this basis. I think all the treatments were reasonable for her to receive. However, they did not resolve her condition...In terms of continued therapy, I think there is benefit from continuing hydrotherapy and physiotherapy..."

1. Dr Yuille again wrote to Comcare on 14 November 2014, in support of the Applicant continuing to receive massage therapy and physiotherapy. The following observations were made by Dr Yuille - Exhibit 1 T 155 p. 429:

"Ms McNamara has been having physiotherapy with Martin Hodgson at Woden Integrated physio. She is making gradual improvement in her condition and physiotherapy is integral to this improvement and to her achieving her functional goals. She is hoping to commence her graduated RTW programme in Jan 2015 and I think it is important that her physio is available at this time to aid in a successful return to work. Ms McNamara is increasing her self management programme so I think it is reasonable that her physiotherapy sessions be reduced to x 1 per fortnight but it is my opinion that her sessions should continue with planned review in 3/12. Ms McNamara also gets significant symptomatic relief and improvement in sleep after her physio sessions. She is being seen for a double appt at each physiotherapy session because there are five treatment sites, as per her physio treatment plan and I think she should continue with this double appointment once per fortnight.

Massage therapy x 1 per week - Ms Mcnamara gets significant symptom relief from her massage therapy and it is part of her general gradual improvement. The Massage therapy also helps with her sleep disturbance that is related to her condition."

1. Dr Yuille's next report to Comcare of 3 April 2016, in which she deals with ongoing massage therapy and physiotherapy, is set out above. Tellingly, she states that physiotherapy is not advocated normally in circumstances where improvement is not achieved. Nonetheless, Dr Yuille stated that she continued to recommend both massage therapy and physiotherapy, because the Applicant reported that it helped alleviate her symptoms and prevent deterioration - Exhibit 1 T179 p. 528.
2. A reading of most of the specialist reports generated during the period in question highlights a common feature. Almost every assessing specialist has counselled against ongoing massage therapy, and, as time proceeded, further physiotherapy. Despite the quite significant differences in the diagnosis of the Applicant's ailment, most of the medical experts agreed about the potentially negative impact of the Applicant persisting with, and becoming reliant upon, passive therapies.
3. The first instance of this is in the report of Dr Marcus Navin, Occupational Physician, of 28 August 2009. Dr Navin observed - Exhibit 1 T29 pp. 83 - 84:

"With regard to her massage treatment, she receives a form of deep pressure massage to the lateral aspects of her arm. Ms McNamara terms this area to be 'her triceps'. However, the area of the that (sic) is being massage (sic) would appear to reflect the areas of deltoid and brachialis muscles. The benefits of these treatments are relatively short-lived and therefore are continued weekly. I note that given the long duration of Ms McNamara's conditions, that osteopathy and massage treatments are not appropriate as passive therapies. There is sufficient evidence to demonstrate that these interventions have no benefit in the long-term management of chronic disorders...

At some point between 2006 and 2008, Ms McNamara sought physiotherapy advice. Ms McNamara stated that this was without benefit..."

1. Dr Navin made the following assessment - Exhibit 1 T29 p. 86:

"I have advised her to cease all forms of passive therapy and to participate in a strengthening stabilising program...

With respect to her occupational over-use syndrome, this has now become an untrained behaviour due to her focus on passive therapies rather than by graded exercise therapy."

1. The following year when Dr Pascall assessed the Applicant, she reached the same view about the efficacy of ongoing passive treatments - Exhibit 1 T64 p. 173:

"Ms McNamara does have a predisposition for alternative medicines and passive treatments...

I am yet to be convinced that the myofascial release is doing anything other than easing off muscle tension and would be unable to recommend it as an ongoing treatment regime. There are better ways of releasing muscle tension that have more lasting benefit than massage which should only ever be seen as a temporary measure to provide her with some pain relief and capacity for mobilisation whilst a more active and beneficial regime is implemented."

1. Unfortunately the Applicant has displayed a marked resistance to accepting this advice and has persisted with relying on massage therapy and physiotherapy.
2. On 28 October 2008, the Applicant was referred to Advanced Personnel Management by the Department of Environment, Water, Heritage and the Arts for assistance with vocational rehabilitation. Dr Yuille had also referred the Applicant to Dr Eaton of the Canberra Injury Management Centre for assessment, and the Applicant commenced a rehabilitation and pain management program at the Centre. In a Closure Report dated 17 December 2009, Ms Annette Cursley, Physiotherapist and Rehabilitation Consultant, noted that the Applicant "struggled to cope with a structured return to work program." - Exhibit 1 T40 p. 110. Ms Cursley then stated - Exhibit 1 T40 p. 111:

"Dr Eaton advised Ms McNamara that she should cease all passive therapies, but she was resistant to this idea as she felt that she needed the support of these treatments (massage and osteopathy) to manage her condition. She consulted her GP, Dr Yuille, and made the decision to cease attendance at the CIMC program and return to Canberra City Osteopathy for short term osteopathy and massage treatments."

1. The Applicant's ongoing reliance on passive therapies and the lack of any long-term positive outcomes was also noted by Dr Cass in his report of 26 June 2012 - Exhibit 1 T119 p. 311:

"I agree with the idea of her being seen at the ADAPT pain clinic to try and learn to manage her pain. Her predominant finding on physical examination is complete loss of the glenohumeral range of motion, retraction and control so work must be at her scapula to retract, stabilise and support this, not with hands on massage and therapy, but with her own active exercise program."

1. As previously noted, Professor Nicholas, the Director of the ADAPT program, specifically recommended that the Applicant cease passive treatment modalities which "have no evidence of lasting effectiveness and risk reinforcing passivity..." -Exhibit

1 T127 p. 337. 2. In a supplementary report of 23 February 2016, Dr Kevat was specifically asked by Comcare about the efficacy of the massage therapy and physiotherapy treatments the Applicant had received. Dr Kevat gave a guarded, but positive response - Exhibit 1 T177 p. 520:

"With regard to treatment, her current medications are appropriate. In terms of physical treatments, she should be given a self-managed exercise program with periodic review, approximately monthly, by a physiotherapist. Massage is a passive therapy with no evidence base to demonstrate its value; however, in individual cases there is an argument to say that it assists in maintaining symptom control in patients with chronic pain. In Ms McNamara's case I would suggest that massage be offered monthly, alternating with the physiotherapy visits."

1. The Applicant provided Dr Low with a rather bleak picture of her ability to cope with day to day living. She informed Dr Low that her husband had to lift her children and helped with the majority of home care and house cleaning tasks. In particular, she informed Dr Low that lifting more than a weight of 3 kg resulted in an exacerbation of her symptoms. The Applicant stated that she was breastfeeding her youngest child, but was unable to support his weight - Exhibit 1 T180 pp. 535 - 536. Dr Low summarised that:

"In the absence of any objective identifiable condition, I do not consider that further passive treatment such as physiotherapy or massage therapy will result in further gains.

Ms McNamara has stated that she has achieved some improvement through the ADAPT Program and I suggest the way forward is to engage a psychologist experienced in pain management."

1. Dr Low, in fact, opined that reliance on further passive therapies would have a negative impact on the Applicant - Exhibit 1 T180 p. 537:

"I do not consider that further passive therapy (such as massage therapy) is indicated and indeed ongoing reliance on passive therapy can further entrench pain behaviour."

1. Reference can also be made to the report of Dr Gorman, where he made the following observations - Exhibit 1 T215 p. 990:

"She has developed marked symptoms of chronic pain including fear avoidance behaviours, 'hypervigilance', 'catastrophising' and depressed mood.

Clearly the surgical and passive therapies including physiotherapy and massage therapy have not made any significant difference to her 'chronic widespread upper limb pain'. In fact, they are likely to have perpetuated...

She has a profound illness conviction which unfortunately will be difficult to change. Despite stating she supports the ADAPT strategies, she is resistant to a self-management approach."

1. Dr Gorman was asked whether the previous medical treatment given to the Applicant was reasonable in the circumstances. His response was as follows - Exhibit 1 T215 p. 998:

"She has seen expert practitioners but unfortunately there has been an incorrect focus, I believe, on surgical and injection techniques as well as passive therapy. However, in retrospect I do not believe one can say that this was unreasonable. I certainly however do not feel that it should continue."

1. Dr Eaton, in his report of 14 February 2018, opined that "further limited physiotherapy and massage" as considered reasonable should be provided to the Applicant - Exhibit 2 p. 15.
2. This was contrary to the view he expressed in 2009, when he indicated his disappointment that the Applicant continued to be reliant on passive therapies. Further, under cross-examination by Mr Snell, Dr Eaton agreed that the Applicant was resistant to the advice he had given her at the time. Further, he also agreed with Mr Snell's proposition that if the Applicant had accepted his advice in 2009, the outcome now would have been better.
3. Dr Yuille noted in January 2010, that the massage therapy the Applicant was then receiving was not "curative" and provided only short term relief. Of course, that is the nature of massage therapy; its positive impact is transitory, and, unless it is combined with other more pro-active therapies or activities, the patient quickly reverts to their previous state.
4. The same can be said of physiotherapy, but it is more often combined with other regimes, which, cumulatively, can provide longer term pain relief and benefits.
5. In this matter the preponderance of evidence is that the Applicant's reliance on massage therapy has had deleterious impacts on her chances of recovery. It has, to quote Professor Nicholas, reinforced the Applicant's passivity. Dr Gorman opined that the Applicant's reliance on passive therapies may have even perpetuated her underlying condition.
6. The evidence before the Tribunal discloses:
   • (a) any benefit the Applicant received from massage therapy was transitory and it has not advanced the resolution of that condition;
   • (b) the long-term effect of massage therapy can be viewed as either having no long-term positive impact, or, if one accepts the view of experts such as Dr Gorman, has had a detrimental impact and played a role in perpetuating her condition;
   • (c) there is no evidence that massage therapy can cure the Applicant's condition, nor significantly reduce its effect;
   • (d) on a benign view, the ongoing reliance on massage therapy will maintain the status quo and not improve it, but viewed from the perspective of many medical experts, may actually worsen the Applicant's condition; and
   • (e) the Applicant has received more than 300 Comcare funded massage therapy treatments. The cost to Comcare, and the broader community to date, has been significant, without any evidence that this significant injection of money has resulted in any long-term beneficial outcomes for the Applicant. From a cost-benefit point of view, the cost is totally out of proportion to the "benefits" received.
7. There are numerous Tribunal decisions that have highlighted the risk that passive therapies while providing only short-term and minimal benefits have a deleterious side-effect, namely creating a dependency syndrome which in turn entrenches illness and pain behaviours - see Bayani and Australian Postal Corporation [2015] AATA 342; 149 ALD 347 at [55]/358, Drummey and Comcare [2016] AATA 738 at [18].
8. This matter, unfortunately, is an example of this state of affairs.
9. One matter should be noted in this context. The Applicant was cross-examined at some length by Mr Snell regarding her reliance on massage therapy, and, to a lesser degree, physiotherapy. The Applicant testified that her condition deteriorated after Comcare ceased paying for massage therapy and physiotherapy. She stated that she had pain predominantly on her left side and, during the 2016-2017 period, experienced a range of bodily limitations, including lifting, cutting up vegetables, only being able to take a pot off the stove with two hands and even having difficulties holding a glass of water. The Applicant also testified that she could not manage her children because of her inability to lift weight in excess of 3 kg without experiencing pain.
10. Mr Snell then asked the Applicant if she was known by names other than Christine McNamara. The Applicant answered in the negative. Mr Snell then asked if the Applicant had a Facebook page, and the Applicant replied in the affirmative. Mr Snell then produced screen shots of a Facebook page in the name of a "Christine McAnder".
11. The Tribunal admitted into evidence three pages of screen shots as Exhibit 7. The images were uploaded onto Facebook during the period June 2016 until March 2018.
12. The 13 June 2016 screenshots comprise four photos of the Applicant and her husband enjoying what appears to be red wine. Nothing of import arises from these images.
13. The next screenshot comprises four photos bearing the date of 4 December 2017. The photos disclose the Applicant with her husband and her two children. Significantly they show the Applicant holding her youngest child by her right arm without any apparent difficulty. Indeed, in two of the photographs the Applicant is smiling and exhibiting no outward signs of physical distress.
14. The final screenshot bears the date "March 14" and without a year. For those persons using Facebook this usually indicates it is the current year. That screenshot shows the Applicant holding what appears to be her eldest child by her right arm, while watching a pelican. There are no signs of the Applicant requiring assistance in holding her child, a boy of about three years of age. A healthy young male of that age bracket would, of course, weigh much more than 3 kg.
15. Mr Snell asked the Applicant if she was in distress when the photographs were taken, and she replied that she was. This response was surprising and undercut the evidence of the Applicant. Any person viewing the photographs would sensibly draw the conclusion that they show a loving mother who is very happy and relaxed and enjoying the company of her two young sons. They do not show a mother in distress attempting to show affection for her children whilst in pain.
16. The Applicant apparently changed her name on her Facebook page from her name to "Christine McAnder" approximately three months before the Tribunal hearing. The Applicant stated that this was a private joke.
17. The Tribunal needs to draw no inferences from this, although, it is patently clear that if anything turned on the Applicant's credit as a witness, obvious adverse inferences could be drawn.
18. The reason that no inferences need be drawn is that the sheer weight of the medical evidence demonstrates that there can be no sensible case for the provision of either ongoing massage therapy or ongoing physiotherapy pursuant to s 16.
19. Dr Yuille was, most probably, correct in supporting the Applicant having both massage therapy and physiotherapy for a period after her initial injury. This was appropriate as both therapies assisted the Applicant in the management of her pain, and, taken together with other pro-active pain management strategies, provided a pathway for the effective management of pain.
20. The fact that the Applicant is seeking Comcare funded massage therapy and physiotherapy so many years after the 2008 events, discloses a dependence by the Applicant on those therapies, as distinct from an indication that they are actually achieving any positive results. It also tends to support the view expressed by Dr Low that reliance on these passive therapies is actually entrenching pain behaviour and making the Applicant's underlying condition worse, not better.
21. The true nature of the ongoing "benefit" of massage therapy and physiotherapy to the Applicant was summed up by Dr Yuille in her report of 3 April 2016, when she conceded that this treatment "is not curative, nor does it seem to achieving a sustained improvement in her condition" - Exhibit 1 T179 p. 529. Dr Yuille, having been the Applicant's treating GP for a number of years, and having previously endorsed the ongoing use of passive therapies, was in a good position to evaluate their effectiveness over a long period. Dr Yuille's conclusion is one that is shared by the Tribunal, although, the evidence also supports the view that ongoing use of passive therapies is actually having a deleterious impact on the Applicant and not a curative one.
22. The Tribunal therefore finds that Comcare is not liable from 30 January 2017 for expenses pursuant to s 16 of the Act for treatment by means of massage therapy.

1. As previously noted the same principles enunciated with respect to massage therapy apply also to physiotherapy.
2. There is material in Exhibit 1 which supports a continuation of Comcare provided physiotherapy to the Applicant. Perhaps the most persuasive of this material is the report of Mr Pogson of 9 January 2017 - Exhibit 1 T209 pp. 960 - 964. Mr Pogson has been providing physiotherapy to the Applicant for some time and wrote a letter in support of her receiving further Comcare funded physiotherapy on 29 October 2014 - Exhibit 1 T 154 p. 428. In his report of 9 January 2017, Mr Pogson said - Exhibit 1 T209 p. 962:

"Christine has recently consulted with her GP Dr Kraus on 05/12/16, who noted that physiotherapy is integral to the gradual improvement in her condition and to achieving her functional goals of less pain, improved sleep quality, improved functionality, ability to exercise, increased independence and eventual return to work. She experiences significant pain relief from physiotherapy, which allows her to achieve [i]mproved sleep and assist her with managing her pain through exercise. It is my opinion as a physiotherapist that we should continue to support her with further physiotherapy treatments, to regain our previous improvements and to continue working towards her functional goals of Increased Independence and a return to work."

1. This statement considered in isolation provides support for the proposition that the ongoing provision of physiotherapy would be reasonable for the Applicant to obtain.
2. However, when viewed through the prism of the extensive Comcare funded physiotherapy the Applicant has received over many years, the above statement appears, with due respect to Mr Pogson, as simply the repetition of past claims. The Tribunal was presented with multiple Physiotherapy Review Treatment Plans over the years - Exhibit 1 T125 pp. 327 - 328, T131 pp. 368 - 369, T137 pp. 392 - 393, T145 pp. 409 - 410, T148 pp. 413 - 414, T152 pp. 424 - 425, T164 pp. 454 - 455, T170 pp. 480 - 481, T176 pp. 517 - 518 and T192 pp. 575 - 577.
3. Without being critical of Mr Pogson, it is the case that a physiotherapist who has been treating a patient for a prolonged period would be more likely than not to subscribe to the efficacy of that treatment. The bonds of familiarity and empathy taken together with the professionals firmly held belief in the benefit of the treatment being given, results in an overly subjective and sympathetic analysis.
4. Mr Pogson's analysis stands in stark contrast to the views reached by Dr Gorman at around the same time.
5. Dr Gorman, who has experience and qualifications to opine on the efficacy of the various treatments being provided to the Applicant, and who is not affected by the bonds of a long term professional relationship with the Applicant, discounted the efficacy of ongoing physiotherapy.
6. Dr Gorman opined that physiotherapy had not made any difference to the Applicant's chronic widespread upper limb pain, and may have, taken together with other passive therapies, perpetuated it - Exhibit 1 T215 p. 990.
7. The Tribunal prefers the analysis and conclusions reached by Dr Gorman over those expressed by Mr Pogson.
8. In addition, as set out earlier, there is a considerable body of expert medical opinion which suggests that ongoing passive therapy treatments are no longer achieving beneficial outcomes for the Applicant, and may actually be counterproductive.
9. The Tribunal therefore finds that Comcare is not liable from 30 January 2017 for expenses pursuant to s 16 for treatment by way of physiotherapy.

I certify that the preceding 219 (two hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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