... a form of chronic pain disorder usually involving one or both of the upper limbs occurring in the setting of intensive or repetitive use of the upper limb. There is usually no objective or demonstrable pathology.

Dr Kevat goes on to confirm that Ms Skobelkin-Mulcair's condition is related to her employment, which continues to contribute to it.

1. Ms Coghlan provided a report to Comcare, itself undated but apparently received on 11 November 2011 (T43). The report is focused on Ms Skobelkin-Mulcair's psychiatric condition, but Ms Coghlan notes the contribution arising from her chronic pain, but also suggests that that contribution had been displaced by anxiety over the pay dispute and related matters, concluding that "she has in fact, over time, tried to manage the pain problem and come to terms with it." Later in the report she suggests that:

It now seems that instead of facilitating her return to productive work, unreasonable impediments have been, and are continuing to be, placed in her path. While I have no doubt this has the effect of unnecessarily exacerbating her chronic pain problem, I reiterate that, in my opinion, the failure to resolve the workplace issues have been the cause and maintaining factors in her symptomatology since June this year.

Finally, Ms Skobelkin-Mulcair has made an effort to implement the recommendations to manage pain, stress and anxiety with her usual thoughtful and conscientious approach. There has been nothing about her presentation that leads me to doubt her sincerity as an informant.

1. Comcare considered at about this time the possibility of Ms Skobelkin-Mulcair receiving compensation for permanent impairment and non-economic loss. Examinations by Dr McGrath and Dr Kevat proceeded over an extended period (T44, TT45, T49, T55, T62, T63, T64, T65, T67) and Ms Skobelkin-Mulcair lodged a claim on 14 December 2012 (T51). Comcare denied the claim and affirmed that denial on reconsideration (T55, T59). Following a further MRI scan (T68), Drs McGrath and Kevat reconsidered their opinions (T70, T71). By consent decision of this tribunal dated 27 November 2014 (T71A), Ms Skobelkin-Mulcair was agreed to have sustained a 10% permanent impairment and was awarded compensation under sections 24 and 27 of the SRC Act.
2. Ms Skobelkin-Mulcair took extended leave under medical certificates from Dr Harrison (T4) and did not return to work at CSIRO after 14 July 2012.
3. A physiotherapist, Mr Trevor Beswick, conducted a functional capacity assessment on 18 September 2012, providing Comcare with a report dated 24 September 2012. The tests were reasonably extensive, covering a variety of physical tasks. Mr Beswick identified the results as invalid, meaning that in his view Ms Skobelkin-Mulcair had attempted to manipulate the measurements to suggest that she was capable of less physical activity than was the case in reality. Mr Beswick supplied detail to document the kinds of actions that Ms Skobelkin-Mulcair appeared to have used for this purpose.
4. On 21 March 2013 Dr Harrison provided a report to Comcare setting out the history of Ms Skobelkin-Mulcair's condition followed by a current diagnosis of chronic pain syndrome of the right arm and an anxiety disorder. He considered her earlier CTS to have resolved. He thought that her symptoms were severe in comparison to any known pathology but saw that as consistent with chronic pain syndrome and a significant psychological component to her condition. He regarded the conditions as caused by her employment. He noted that her symptoms continued and even quite minor activity involving her right arm set off her pain.
5. Comcare sent Ms Skobelkin-Mulcair to a psychiatrist, Dr James Hundertmark, who provided a report dated 28 May 2013 (T58). Dr Hundertmark concluded that Ms Skobelkin-Mulcair did not at that time have a psychiatric condition. He noted her chronic pain syndrome, but said that she did not have a diagnosis of a pain disorder on the DSM-IV-TR [scilicet: Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition - Text Revision]. He noted that Ms Skobelkin-Mulcair's obsessional personality and hard-driving attitude to work were factors that contributed to her having difficulty in returning to work.
6. Dr Kevat provided a further report to Comcare, dated 8 July 2013 (T60). He diagnosed occupational overuse syndrome, with the same commentary on it as in his earlier report (T41). He noted the continuity of symptoms with those dating from her period of employment at CSIRO, the influence of psychological factors such as the pay dispute, and that CTS had resolved. In his opinion CTS and the chronic pain syndrome had arisen simultaneously, rather than one being secondary to the other.
7. On 2 December 2013 Comcare accepted liability (T61) for "chronic pain syndrome" as a secondary condition, on the basis of the reports by Dr Kevat (T60) and Dr Harrison (T56).
8. On 27 February 2014 Comcare made a determination of no present liability under sections 16 and 19 of the SRC Act for Ms Skobelkin-Mulcair's psychiatric condition (Ms Skobelkin-Mulcair refers to this at paragraph 24 of Exhibit A1, although no documentary evidence appears to be included in the papers provided for the hearing). No reconsideration was sought of that decision. On 12 August 2014 Ms Skobelkin-Mulcair was made redundant, and left CSIRO's employ.
9. Dr Harrison referred Ms Skobelkin-Mulcair to Dr Geoffrey Speldewinde, a rehabilitation physician and pain specialist. Dr Speldewinde saw Ms Skobelkin-Mulcair at extended intervals (T53, dated 18 January 2013; T73, dated 24 July 2015; T84, dated 18 November 2016). Most of Dr Speldewinde's reports deal only with the application of his dedicated pain management program and provide little comment on Ms Skobelkin-Mulcair's condition, but his 2016 report (T84) notes that Ms Skobelkin-Mulcair's pain sensitisation, depression and anxiety had eased since she left the workplace.

1. Ms Skobelkin-Mulcair's witness statement, dated 18 May 2018 (Exhibit A1), recounts her first perception of symptoms; the development of those over a period; the various forms of treatment she received; and the complicating factors in the workplace, including workload issues, staffing issues, underpayment and subsequent conflicts about pay and leave. It also details the continuity of symptoms through the years from 2006 to the time of the statement, including the effects on Ms Skobelkin-Mulcair's work capacity, and her ability to take care of her children and her home.
2. In oral evidence Ms Skobelkin-Mulcair spent a little time supplementing her statement with further information regarding her duties at CSIRO (especially with regard to implementation of the software system known as SAP). She said that there was remedial work to be done for SAP implementation on her arrival in the position, and as a result she found herself working very long days of 12, 14 or even 18 hours, for most of the year. Later she was finance manager for a team and again the work was quite intensive.
3. Under cross-examination Ms Skobelkin-Mulcair recalled that she had suffered an injury to her lower back in 2003, and had seen Dr Le Leu in connection with that injury. At that time he had thought she was working too hard. Ms Skobelkin-Mulcair explained that her involvement with the SAP implementation project had begun towards the end of 2005 and the pain in her right wrist had appeared in December 2006. She said that over the years her symptoms have fluctuated, sometimes getting worse, sometimes remaining about the same, but never getting better. Her symptoms continued through the period when she had the dispute with CSIRO, and went on after she stopped work in July 2011. They were severe enough that she found it hard to lift her baby after her birth in May 2012.
4. Mr Dube for Comcare pointed to Ms Skobelkin-Mulcair's resistance to rehabilitation, as documented by Dr Harrison. Thus his notes on 17 March 2016 (Exhibit R1) show that in a conference with Ms Fiona Fonti she resisted doing any trial return to work and a month later (notes of 28 April 2016) wanted to avoid doing even one hour a week as a volunteer. Ms Skobelkin-Mulcair said that she was not able to cope at home, and in those circumstances felt that she should not have to attempt any work outside the home.
5. Mr Dube also noted that when it came to taking action on her issues - the reconsideration request to Comcare in regard to the present matter, or her grievance statement - Ms Skobelkin-Mulcair was capable of putting together a very substantial document. The grievance statement was 82 pages and the supporting statement in the Comcare claim matter was 17 pages. This must have been difficult, given her right arm injury. Ms Skobelkin-Mulcair said that she used voice-activated software; she spent several days putting the material together; and her husband helped her.
6. Ms Skobelkin-Mulcair recounted her symptoms as a constant pain in the middle of her wrist and a gnawing pain that goes into the middle of her arm. If it is exacerbated it becomes a shooting pain up to the elbow and sometimes to the shoulder and neck, with intensification. Sometimes it manifests as an electrical or burning pain. She takes Panadeine forte or Panadol but has resisted antidepressants. Her symptoms now are the same as in 2011, but with fluctuation according to how much she uses her hands and the pacing of tasks.
7. Under re-examination Ms Skobelkin-Mulcair said that she was resistant to the return to work activities urged by her rehabilitation providers because she was struggling with the pain and difficulty of her normal routine tasks, including self-care.

1. In the course of the oral evidence some of the expert witnesses (Dr Le Leu, Dr Paul and Dr Kostos) made references to epidemiological studies that in their view supported, in particular, their conclusions about the causation of relevant conditions. Mr Anforth for Ms Skobelkin-Mulcair proposed to provide citations for some of these studies, but after hearing from the parties I accepted that the information was coming forward unduly late in the proceedings, and that procedural fairness would not encourage the tendering of these materials as evidence at such a late stage, especially in light of section 66 of the SRC Act, which prevents adducing of evidence by an applicant without notice having been provided 28 days in advance.
2. A certain amount of interchange occurred among the doctors and indeed between doctors and counsel regarding the studies that might cast light on the matters at hand. I drew little from this exchange beyond a conviction that scientific opinion on relevant matters, especially the causation of conditions such as those covered in this matter, remains in dispute.

1. Comcare asked Dr Paul to examine Ms Skobelkin-Mulcair on 14 June 2016 (T75), and Ms Skobelkin-Mulcair attended a consultation on 10 August 2016. Dr Paul's report, dated 19 August 2016 (T79) records Ms Skobelkin-Mulcair's history, summarises the medical records provided, and documents the result of a physical examination. Dr Paul concluded that Ms Skobelkin-Mulcair had originally suffered from CTS, which "was probably not work-related and more constitutional", but noted that the claim had been accepted by Comcare, and that the surgery performed to relieve it had been undertaken on the basis that the CTS was a compensable injury. In his view the chronic pain syndrome had arisen from the surgery for CTS and was a secondary condition. The CTS had now resolved, but Ms Skobelkin-Mulcair was left with a chronic pain syndrome and a psychiatric condition (which he acknowledged was outside his expertise). Dr Paul thought the symptoms of chronic pain likely to continue indefinitely. Ms Skobelkin-Mulcair's symptoms would be exacerbated by activities such as handling her child.
2. In oral evidence Dr Paul reiterated his diagnosis of CTS arising in 2005-06. He had relied on the reports of doctors from the time of the injury. These had given clear indications of CTS on the right. He found no residual symptoms of CTS at the time of examination. In his view a number of factors provide a risk for CTS, including for example gender (women being more likely than men to develop the condition), diabetes and pregnancy. Ms Skobelkin-Mulcair's surgeon noted her tight carpal tunnel, which might have been a predisposing factor. In terms of workplace causation, Dr Paul referred to a "review of reviews", published in 2014 or 2015, which had found moderate quality evidence that CTS was not associated with computer use. So Ms Skobelkin-Mulcair's CTS is, as stated in his report, probably constitutional.
3. Dr Paul reiterated his opinion that Ms Skobelkin-Mulcair developed a chronic pain syndrome as a result of the surgery to relieve her CTS, although he noted, having seen Dr Kostos's report, that there were other explanations available. Ms Skobelkin-Mulcair required treatment for chronic pain syndrome but not for CTS, as the latter had resolved. Her chronic pain syndrome would provide severe limits on her capacity for work.
4. Dr Paul said that chronic pain syndromes are poorly understood; ideas about pain thresholds have been put forward in explanation, as suggested by Dr Le Leu but there is no way of measuring or detecting such thresholds; chronic pain syndromes have a highly variable course, and are persistent in some people, including Ms Skobelkin-Mulcair; in her case it was triggered by the CTS surgery and has persisted since then.

1. Comcare referred Ms Skobelkin-Mulcair to Dr Tony Kostos on 14 June 2016 (T76), and she saw Dr Kostos on 25 August 2016. In Dr Kostos's report, dated 7 September 2016 (T80), he concluded, on the basis of a history, the medical documentation provided and an examination of Ms Skobelkin-Mulcair, that she had had CTS, which had been resolved by surgery, and a chronic pain syndrome, which had arisen prior to surgery and had become apparent once the CTS had resolved. He added "[p]lease note that overuse syndrome and RSI [scilicet: repetitive strain injury] were never a validated medical condition and never existed". Dr Kostos gave his view that CTS is idiopathic and related to constitutional factors and that there was no evidence linking the condition to keyboard work. He further stated that "[h]er chronic regional pain syndrome is not related to any physical aspects of her employment". Dr Kostos went on to quote some of the remarks by Dr Hundertmark (from the report at T58) regarding Ms Skobelkin-Mulcair's attitude to her work and the workplace. He supported his conclusion regarding the chronic pain syndrome having arisen before the surgery for CTS by noting the comment by Dr Taylor, the surgeon, regarding Ms Skobelkin-Mulcair's behaviour immediately following surgery, when she was allowing her right arm to hang limply by her side (at T14).
2. Dr Kostos provided a further report dated 25 August 2017 (Exhibit R2). Dr Kostos repeats his views that the original CTS had resolved; that it was not related to employment; and that there was a chronic regional pain syndrome. Dr Kostos goes on to state that the chronic regional pain syndrome is multifactorial, and that "it relates to inherent personality traits, previous life experiences, attitudes and beliefs and the adaptability to cope with anxiety and stress". He once again associates himself with remarks by Dr Hundertmark. He continues:

Her pain syndrome is not related to the physical aspects of her employment and there is no association between carpal tunnel syndrome or carpal tunnel decompression and the development of chronic regional pain state.

Some of her Doctors have suggested that she has occupational overuse syndrome but it needs to be understood that this is simply a surrogate term for repetitive strain injury.

Repetitive strain injury was never a medical condition and the term was invented by John Matthews, a non-medical union official. It was discredited in the late 1980s and it is therefore surprising that these terms are still being used today.

Dr Kostos further notes that Ms Skobelkin-Mulcair's chronic pain symptoms have persisted unchanged since she stopped work, and that this is in his experience the "natural history" of such conditions. The condition is likely to prevent her from working.

1. Comcare sent reports by Dr Le Leu and Professor Cohen to Dr Kostos and asked if they caused him to change any of his views. Dr Kostos replied, emphatically, in a report dated 4 December 2017 (Exhibit R3) that they did not, and he supplied a more detailed commentary on what he saw as the discrediting of "the RSI epidemic" and offered some criticisms of both Dr Le Leu's and Professor Cohen's reports.
2. In oral evidence Dr Kostos reiterated that the documentary record showed a clear set of signs and symptoms of CTS, which had then been relieved by surgery, as shown by normal nerve conduction studies after surgery and the disappearance of nerve compression symptoms. Ms Skobelkin-Mulcair had developed a chronic regional pain syndrome, which is the persistence of pain in the absence of any identifiable physical abnormality; it is also sometimes known as a localised fibromyalgia syndrome. Dr Kostos said that he deduced that this chronic pain syndrome developed at about the same time as CTS from Ms Skobelkin-Mulcair's witness statement, where she described not the paraesthesia associated with CTS but increased pain in general in the right arm, to the point that it felt "frozen". He understood this as the appearance of a chronic pain condition. There was in his view no causal link between the CTS and the chronic pain syndrome.
3. Dr Kostos, in responding to Professor Cohen's opinion, suggested that "overuse syndrome" is a term without scientific validity: all such conditions are examples of chronic pain syndromes; an alternative label is localised fibromyalgia. There is no evidence that repetitive work or repetitive activity leads to injury; indeed the evidence suggests that these conditions have no connection with such activity, and that other factors are more important. Dr Kostos stated that CTS has idiopathic causes; there is no association with keyboard use and similar employment-related activity. Chronic pain syndromes are more complicated: the causes derive from psychosocial factors - attitudes, personality, life experiences and adaptability; there was no evidence that such syndromes arise from employment, nor do they derive from interventions such as the surgery for CTS. Dr Kostos quoted a number of studies supporting the conclusion that trauma and physical work do not contribute to pain syndromes. But Dr Kostos thought that some elements of Ms Skobelkin-Mulcair's employment, especially psychosocial aspects bound up with her personality and psychological attributes, may have made a contribution and have reached a point at which she had been unable to cope. He noted the comments about this by Dr Hundertmark.
4. Dr Kostos thought that at 17 November 2016 Ms Skobelkin-Mulcair's condition (her chronic regional pain syndrome) continued, but that it was not then, and had not ever been, caused by her employment. He noted that Ms Skobelkin-Mulcair had shown a good deal more tenderness on examination when he saw her a second time in 2017 than she had a year earlier. It would be reasonable for her to seek treatment, but there is no treatment available for the chronic pain syndrome from which she suffers. Her pain syndrome would have caused her incapacity, because she believed herself to be injured.

1. Dr Le Leu provided a report dated 28 October 2017 (Exhibit A2). In preparing the report Dr Le Leu took a history, reviewed the relevant documentation and conducted a physical examination. His report concludes that Ms Skobelkin-Mulcair has "ongoing symptoms suggestive of residual carpal tunnel syndrome" and a chronic pain syndrome which "more probably than not, postdated the carpal tunnel release". Dr Le Leu states that CTS can persist irrespective of negative results from nerve conduction studies. He states that Ms Skobelkin-Mulcair's injury was work-related, and was possibly the result of aggravation of a constitutional but asymptomatic CTS condition. Her current symptoms continue to result from the original CTS and chronic pain syndrome.
2. In oral evidence Dr Le Leu repeated his diagnosis of CTS, with the symptoms first appearing in late 2006, brought on by activities in the workplace. He noted some residual signs of CTS when he examined her, including a positive Tinel's test and some reduced sensation in the distribution of the median nerve, with tenderness over the scar from surgery. Tests at the time of the injury had been consistent with CTS on the right. Dr Le Leu stated his opinion that in Ms Skobelkin-Mulcar's case, the circumstances of her workplace could have caused the CTS or have caused symptoms to appear from exacerbation of a pre-existing but asymptomatic CTS. Dr Le Leu noted that large numbers of studies relating to CTS and employment have identified connections between CTS and such factors as keying rate and the length of time spent keying and mousing.
3. Dr Le Leu believed that at the date of the determination, that is at 17 November 2016, Ms Skobelkin-Mulcair still suffered from CTS and she also suffered from a chronic pain syndrome. She should continue treatment for her chronic pain syndrome, and self-management, as practised at present, would be a good option. She could see a multidisciplinary pain clinic, but such options seem to provide limited results. She cannot be expected to work while she is so limited in the use of her right arm. Dr Le Leu noted that in more recent imaging (apparently the MRI at T68, dated 17 October 2014) there were indications of possible tendonitis of the right wrist, which had not been apparent at earlier dates.
4. Dr Le Leu said that in his view the surgery had not been completely successful in reversing the CTS; and that in Ms Skobelkin-Mulcair's case she continued to suffer the effects of the CTS and also of the chronic pain syndrome up to the present; in the case of the chronic pain syndrome the threshold for pain had been reset in the relevant part of the nervous system and having been reset, it stays reset.

1. Professor Cohen provided a report dated 4 September 2017. He identified a complex of social, psychological and biomedical contributions to Ms Skobelkin-Mulcair's condition, arising from workplace difficulties (social), anxiety resulting partly but not entirely from those problems (psychological), and a possible CTS or chronic pain syndrome, exhibiting what Professor Cohen termed "nociplastic" pain, deriving from altered function of nociceptive pathways from Ms Skobelkin-Mulcair's right upper arm (biomedical or somatic). Professor Cohen states that on the balance of probabilities Ms Skobelkin-Mulcair's injury is caused by her employment.
2. In oral evidence Professor Cohen repeated his doubt about whether there was ever a CTS condition; her presentation when he saw her suggested a problem of heightened nociceptive pain in the right upper limb, which he would describe as "nociplastic" pain. This, he thought, had probably been the condition from the beginning. Professor Cohen saw the chronic pain syndrome as having a pathological explanation, in contrast to Dr Kostos, because of the change in nerve signalling. He did not see the nerve conduction results as being sufficient to base a diagnosis of CTS, and he did not get a history of the symptoms having completely resolved after surgery; that led him to doubt the diagnosis of CTS.
3. Professor Cohen saw the chronic pain condition in the arm as having derived from sustained overuse, leading to activation of the pain signalling nerves, over time, which had then failed to settle. This, he said, is what is sometimes called an "overuse syndrome" - an occupational overuse syndrome, which Ms Skobelkin-Mulcair had from the appearance of symptoms, regardless of whether she also had CTS. He would not expect CTS and its treatment to lead to occupational overuse syndrome, and so there was in his view no causal connection between the two conditions. When it came to causation, Professor Cohen said that he and Dr Kostos came from "different universes"; the view that chronic pain syndromes were not related to employment was contrary to the epidemiological evidence. Chronic pain syndrome does not require a musculoskeletal pathology; it related to a change in function or disease of parts of the nervous system that signal pain - the nociceptive pathways. There is ample evidence that such changes can lead to pain in a regional distribution. "Localised fibromyalgia", in Professor Cohen's view, is merely a shorthand label for unexplained pain. Professor Cohen suggested that it was widely accepted in his particular field of pain medicine that social, psychological and biomedical factors all interacted and contributed to causing pain syndromes. But frank trauma was not necessary.
4. Professor Cohen suggested that the concept of "the pain-prone personality" had been refuted in the literature. It was true that aspects of a person's personality may make a person more likely to suffer a pain condition, but the condition arises from the interaction among factors, including for example social and ergonomic as well as biomedical factors.
5. Professor Cohen had only seen Ms Skobelkin-Mulcair almost a year after the date of the decision on 17 November 2016; so far as he was able to determine, her condition had been the same as at the decision date. It was reasonable for her to obtain treatment, although there is limited treatment available. She was not fit to return to work because of her limitations.
6. The pain that Professor Cohen refers to as "nociplastic" is pain that fits neither the description of nociceptive pain nor of neuropathic pain. He said that there are signs, however, that suggest the sensitisation of nociceptive pathways as an explanation (for example allodynia and distribution pattern of the pain). The existence of sensitisation is an inference based on pain studies including those done in animals. He acknowledged that the clinical link between the appearance of pain and its causation by activities in the workplace was essentially inferential.

1. Mr Anforth, for Ms Skobelkin-Mulcair, provided a detailed line of argument at the beginning of the hearing and relied on it for his closing argument. That outline of submissions included a great deal of material included essentially for pre-emptive purposes, anticipating lines of contention that might come from Mr Dube. But in the event Mr Dube abided entirely by his statement of facts, issues and contentions, and the matter rests comparatively little on the kind of legal contentions put in Mr Anforth's outline. Ms Skobelkin-Mulcair's case is that either CTS and occupational overuse syndrome arose together, with the latter evolving into a chronic pain syndrome; or else the chronic pain syndrome arose as a consequence of surgery for CTS.
2. Comcare's case is that at some time before 17 November 2016 Ms Skobelkin-Mulcair's compensable conditions ceased to bear the nexus with employment that is required under the SRC Act. The original condition, carpal tunnel syndrome, had resolved following surgery. Ms Skobelkin-Mulcair's employment no longer contributes, to a significant degree, to her chronic pain syndrome, and therefore the required nexus with employment no longer obtains. The psychological element in Ms Skobelkin-Mulcair's make-up, leading to her adjustment disorder, was the subject of a separate claim unrelated to the physical injury; that claim was accepted and subsequently closed. Dr Hundertmark voiced the view in his report that Ms Skobelkin-Mulcair's concern at her treatment by her workplace was normal and not a diagnosable psychiatric condition. The evidence from other doctors (Drs Kostos and Speldewinde, Professor Cohen) suggests that non-employment factors are either the cause of the chronic pain syndrome in the first place or have taken the place of any earlier factors. Comcare therefore no longer has liability to pay compensation to Ms Skobelkin-Mulcair under sections 16 and 19 of the SRC Act.
3. In practice the matter turns on the medical evidence, and in particular on how that evidence throws light on questions of causation.

What is the diagnosis of Ms Skobelkin-Mulcair's condition or conditions?

1. The doctors, with the qualified exception of Professor Cohen, agree that Ms Skobelkin-Mulcair suffered from carpal tunnel syndrome at least until she had surgery for that condition. Professor Cohen thinks that she may never have suffered from that condition, and Dr Le Leu thinks she may still have residual symptoms; but Professor Cohen's opinion appears to be not that she did not have the condition, but rather that the totality of the evidence stopped short of convincing him that she did. All other doctors accept that diagnosis without question. On the balance of probabilities, I find that Ms Skobelkin-Mulcair suffered from CTS at least from the date of injury.
2. It seems to be also accepted that Ms Skobelkin-Mulcair suffered a second condition, variously identified as a chronic pain syndrome (Dr Kostos inserts the word "regional" in that label), an occupational overuse syndrome, or possibly a localised fibromyalgia. The doctors disagree strongly over the label that should be attached to this second condition, but agree on the basic properties of conditions of this kind: they are not associated with a frank physical injury or with direct trauma; they are not associated with any readily observable pathology; they are characterised by pain over the affected region; they are frequently persistent; and they may be refractory to treatment. Some of the doctors assert that this is the way a chronic pain syndrome is described, but Professor Cohen prefers to name the condition an occupational overuse syndrome (which, it appears, would settle questions of causation largely through the diagnostic process). Dr Kostos regards all occupational overuse diagnoses as unscientific and as misnomers for chronic pain syndromes. Although it would be possible to argue, as Mr Anforth proposes, that this second condition started as an occupational overuse syndrome and evolved into a chronic pain condition, none of the evidence appears to point persuasively to that evolution or transition, and that is not the evidence of Professor Cohen, the strongest advocate of an occupational overuse syndrome.
3. The doctors are also in strong disagreement regarding causation, and that is strongly caught up in their diagnostic dissension. In the end, whether one label or the other is applied to this second condition is probably best decided after the question of causation has been settled. During the discussion that follows, for convenience I refer to this second condition as a chronic pain syndrome.

Are Ms Skobelkin-Mulcair's conditions ailments under the SRC Act?

1. The SRC Act divides injuries under the Act into "diseases" and "injuries other than diseases" (the latter sometimes referred to as "frank injuries" or "injuries simpliciter"); the terms "disease" and "injury" for the most part are used in contexts that imply that the relevant nexus with employment has been established. The word "ailment" is used for a disease where that nexus is yet to be established.
2. There is extensive case law dealing with the sometimes difficult distinction between an ailment and a frank injury (i.e. an injury other than a disease). Relevant cases include Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 (May); Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning); Bailey v Broadsword Marine Contractors [2017] FCAFC 219; and Prain v Comcare [2017] FCAFC 143. Generally, a condition that is an injury (other than a disease) will involve "a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state" (Kennedy Cleaning, at 300 (Gleeson CJ and Kirby J)). In May Gageler J referred to an "injury in the ordinary sense" in the following terms: "An injury ... is some definite or distinct 'physiological change' or 'physiological disturbance' for the worse which, if not sudden, is at least 'identifiable'" (at [75]; citations omitted). The plurality in May (French CJ, Kiefel, Nettle and Gordon JJ) understood the drafting of the SRC Act to imply that the first inquiry of the decision-maker is whether the employee suffered a disease; if the answer to that question is in the affirmative, no inquiry regarding an injury other than a disease is required (at [44]; at [73] Gageler J dissented from that construction, taking the view that the questions posed by the subsection did not need to be asked in statutory order).
3. It is common ground in the present matter that Ms Skobelkin-Mulcair's conditions are ailments under the SRC Act: they fit the definition of ailment as a physical disorder, defect or morbid condition. If they meet the causation tests, they will be diseases (and therefore injuries) under the SRC Act. If I find them to be diseases under the SRC Act, I do not need to ask if they are also frank injuries, as causation will already have necessarily been established.

Are these conditions contributed to by employment, to the degree required?

1. As noted above, Comcare's case is not that Ms Skobelkin-Mulcair's conditions were never caused by her employment, and so Comcare is not contending that as of 17 November 2016 Comcare's liability came to an end on the basis established by Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 (Hannaford); rather Comcare argues that Ms Skobelkin-Mulcair's condition at 17 November 2016 came to be no longer caused by employment, and it is causation at the date of that decision that must therefore be established. But to establish causation at that time requires that I examine causation from the beginning. That requires that I take account, therefore, of the experts' views about original causation, and at least two (Drs Kostos and Paul) do not regard CTS as associated with employment. Even so, Comcare did not put its case on the basis that causation was originally accepted erroneously.
2. The preponderance of the documentary record is very much in support of the thesis that Ms Skobelkin-Mulcair's conditions are and always were work-caused. That is apparent in the reports of Drs Taylor (T18), Roberts (T19), McGrath (T23), Andrews (T27), Harrison (T29), Pascall (T32) and Kevat (T41). It appears that it was the more recent reports of Drs Paul and Kostos that caused Comcare to view the matter differently. Dr Le Leu put a direct view that both CTS and the chronic pain syndrome were directly caused by Ms Skobelkin-Mulcair's work and pointed to the epidemiological evidence and reports that he said supported that conclusion. Professor Cohen said that Ms Skobelkin-Mulcair's arm condition was caused by her employment, which had sensitised her nociceptive pathways and reset her pain thresholds.
3. Dr Paul holds the view that Ms Skobelkin-Mulacir's chronic pain syndrome is a consequence of her surgery for CTS. On that basis he suggests that since the surgery was done under Comcare's authority after liability for the CTS had been accepted, it follows that the consequences of the surgery are caused by employment. That appears to be a legal rather than a medical conclusion. But it is true that the legal fact of Comcare's acceptance of liability for CTS in 2007 has not been challenged in these proceedings: Comcare's case is either that the conditions have resolved or that they are no longer work-caused; that is the basis for the reviewable decision (T91) and it is the case put in Comcare's statement of facts, issues and contentions; and in the hearing Mr Dube said on more than one occasion that Comcare's case was as set out in that statement. There has been no agitation of a contention that causation was always wrongly determined.
4. Subsection 4(3) of the SRC Act provides as follows:

(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:

(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and

(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.

1. The implication of this provision is that an injury that is the result of reasonably obtained treatment for a compensable injury is itself compensable. In this instance compensation was payable in respect of the original injury (CTS); and the surgery for CTS was obtained with Comcare's agreement, and so was reasonably obtained. It follows that an injury resulting from the surgery for CTS is an injury under the SRC Act: see Portors v Comcare [2018] FCA 914 (at [31]). In that case Robertson J also noted, obiter, that the injury resulting from surgery must have been the subject of a claim under the SRC Act if it is to be considered an injury under that Act. That has of course occurred here, as Comcare accepted liability for a chronic pain syndrome in December 2013. Thus if I were to accept Dr Paul's evidence, Ms Skobelkin-Mulcair's chronic pain syndrome was an injury under the SRC Act.
2. That leaves the evidence of Dr Kostos. He is emphatically of the view that at least at the physical level, Ms Skobelkin-Mulcair's work did not contribute to either her CTS (except by way of "temporary exacerbation" (T80)) or to her chronic pain syndrome. Mr Dube for Comcare questioned Professor Cohen in order to establish that the latter's understanding that the way in which employment activities and chronic pain conditions are linked requires inferences to be drawn. Professor Cohen admitted as much; but the same seems to be true of the alternative explanations. Dr Kostos insists that non-physical factors are at work, but he is not a psychologist, and it would seem to me that he too is drawing an inference about causation: having exhausted the possibility of a physical source he is postulating a psychological and social set of causes. But as a rheumatologist his authority comes to an end once he has reached the point of denying any apparent physical pathology.
3. It is plain, however, that Ms Skobelkin-Mulcair's chronic pain condition is not devoid of physiological signs: Dr Kostos himself noted sensitivity to light touch throughout Ms Skobelkin-Mulcair's upper arm; hyperaesthesia on the palmar and dorsal surfaces of her right hand to the wrist; and diffuse tenderness "consistent with allodynia" around the right shoulder girdle (Exhibit R2). This would seem to imply that there are physical differences between the arm with the chronic pain problem and the arm without. Logically, these are either an underlying subtle pathology that does not show under normal tests (for example on medical imaging) or else properties of the arm affected by chronic pain that distinguish it from the other arm but do not reflect any pathological changes. Possibly they might result from a difference in behaviour, for example if Ms Skobelkin-Mulcair carries and uses the arm differently - Dr Kostos points out at T80 that Ms Skobelkin-Mulcair's CTS surgeon Dr Taylor noted that she was carrying her injured arm differently immediately post-surgery and that this should have set off "alarm bells", suggesting that a chronic pain syndrome might develop (as Dr Taylor in fact feared). The evidence of the doctors does not explore these options at any depth, but at least Professor Cohen has an explanation, if an inferential one, that suggests a subtle pathology is present.
4. If the chronic pain syndrome arose constitutionally, then either the natural progression of that constitutional disorder brought it to the point of displaying symptoms, or else something exacerbated it and made it symptomatic. In the latter case it seems difficult to avoid concluding that it was employment that made it symptomatic, in the absence of any other obvious causative factor; and that in turn implies that the chronic pain syndrome is an injury under the SRC Act, as an aggravation of an existing disorder. It is well established in the case law that in workers' compensation the pain that the employee suffers is not distinct from the injury, but part of it. In Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369 (Beattie) the Full Federal Court (Evatt and Sheppard JJ) relying on Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34, concluded (at 378) that:

...each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.

1. That general conclusion - that symptoms resulting from or increased by work without worsening an underlying condition can be an aggravation under the legislation - is now very well established as a matter of law: see for example Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176, where the court (Davies, Sheppard and Ryan JJ) noted (at 180) that:

It is indeed fundamental to compensation law that a symptom of an injury or a disease is part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease.

Other cases leading to similar conclusions include Tippett and Australian Postal Corporation [1998] FCA 335; Mellor and Australian Postal Corporation [2010] AATA 502; Rutledge and Comcare [2011] AATA 865; Fletcher and Comcare [2015] AATA 430; and Comcare v Reardon [2015] FCA 1166.

1. If on the other hand Ms Skobelkin-Mulcair's chronic pain syndrome is a constitutional condition that became symptomatic by the natural course of the progression of that condition, the contention would then be that the coincidence of activity and symptoms led to a confusion between correlation and causation. But that is not even what Dr Kostos thinks. Dr Kostos was careful in his evidence to distinguish between the workplace as a source of physical injury and as a contributor of psychological factors that could bring on a chronic pain problem. It is his view that stressors of various kinds arising from Ms Skobelkin-Mulcair's constitutional make-up eventually led to a point where she was unable to compensate, and the chronic pain syndrome resulted. Some of those stressors, he suggested, arose from her work.
2. I should be careful of the weight I give that opinion, however: Dr Kostos relies, he says, on a general opinion of the Royal Australian College of Physicians, but I do not have that opinion before me and it is plain in any case that a general opinion is an uncertain basis for deciding an individual case. Further, the psychological contributions to Ms Skobelkin-Mulcair's pain condition lie somewhat outside Dr Kostos's field of expertise. I also have a report available to me from a specialist psychiatrist, Dr Hundertmark (T58) which specifically states that (in April 2013) "Ms Skobelkin-Mulcair clearly has a chronic pain state. She will continue to suffer from pain into the medium term. It is noted that she does not suffer from a pain disorder on the DSM-IV-TR". It would appear to run counter to this specialist advice to accept Dr Kostos's assertion that the origin of Ms Skobelkin-Mulcair's chronic pain is entirely psychosocial.
3. Comcare notes that Ms Skobelkin-Mulcair's claim for compensation for a psychiatric condition related to other causes (especially her pay and leave dispute), and that the psychiatric condition resolved in 2014, with compensation no longer paid. That does not, however, signify that psychosocial stressors in the workplace may not have made a contribution to the onset and development of the chronic pain syndrome; nor does it exclude such influences from consideration in the present context. A number of doctors and other health professionals have noted Ms Skobelkin-Mulcair's driven personality and suggested that such a contribution is likely (Ms Coghlan, T31; Dr Pascall, T32; Ms Conroy, T34; Dr Gertler, T40; Dr Kevat, T41).
4. Taking all of the above into consideration, the great weight of the medical evidence leads me to accept that Ms Skobelkin-Mulcair's chronic pain syndrome originated from her employment. The lone voice offering a different view is that of Dr Kostos, and for the reasons set out above, I am reluctant to place great weight on his opinion. No other potential cause has been identified, apart from the postulated constitutional condition. With regard to the tests set out in the SRC Act, and the change to that test arising from amendments made in April 2007, in my view the connection with employment attested to by virtually every doctor would meet either the test that employment contributed "in a material degree" or that it contributed "to a significant degree", where significant means substantially more than material, given the absence of alternative causes. I find that, on the balance of probabilities, Ms Skobelkin-Mulcair's chronic pain syndrome meets the test set in the SRC Act (in either the amended or unamended version) and has the necessary nexus with employment. It is a disease under the SRC Act and therefore an injury under that Act.
5. The condition was originally accepted by Comcare as a "chronic pain syndrome". Clearly some in the medical profession would prefer to label it differently; but it seems to me that as a descriptor of the phenomenon, rather than its cause, "chronic pain syndrome" is both widely accepted and generally understood. Mr Anforth has quoted the case law that the label to be applied to a condition is not the factor determining a claim under the SRC Act, but the point is not contested. It does not make a decision-maker's task easier that the medical profession is clearly still coming to understand chronic pain conditions, but that does not mean that the evidence is insufficient to make the necessary findings under the legislation (Mr Anforth notes Deputy President Sosso's remarks on this issue in McNamara and Comcare [2018] AATA 3688, with which I agree). The "progressive and evolving" nature of decision-making under the SRC Act (see Hannaford at [57]) (Conti J); Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147) allows such diagnostic labels to be adjusted in line with medical understanding and the evolution of an injured employee's condition. I find that Ms Skobelkin-Mulcair's accepted condition should continue to be identified as a chronic pain syndrome.
6. Some of the doctors have raised questions regarding whether the chronic pain syndrome arose from Ms Skobelkin-Mulcair's CTS or whether it arose separately and in parallel with it. Her records have now been scrutinised more closely and thoroughly, and I note that a number of doctors now see her chronic pain issues arising earlier and in parallel with CTS. These include Dr Kevat, Professor Cohen and Dr Kostos; Dr Paul and Dr Le Leu prefer to see the chronic pain syndrome having arisen after the surgery for CTS. The latter was the view of treating doctors at the time, and it was they who made the contemporaneous examinations. Dr Kostos attributes the chronic pain syndrome to an earlier date on the basis of Ms Skobelkin-Mulcair's witness statement, which dates from May 2018, some eleven years after the events it records; once again, my preference is for the contemporaneous records. On balance, I see no reason to change the understanding that the chronic pain syndrome is a secondary condition arising either from CTS or from surgery for CTS.

At 17 November 2016 did employment still contribute to the required degree to Ms Skobelkin-Mulcair's conditions?

1. It is the heart of Comcare's case that Ms Skobelkin-Mulcair no longer suffers from CTS, and that her chronic pain syndrome is no longer contributed to, to the requisite degree, by employment. In support of the second limb of that contention, regarding chronic pain syndrome, Comcare's argument can be put as follows:
   • CTS was resolved by surgery and made no contribution to her chronic pain syndrome from around December 2009;
   • Comcare never accepted liability for a psychological condition arising from chronic pain;
   • the evidence suggests that Ms Skobelkin-Mulcair's chronic pain was settling over the period 2008-2009;
   • The evidence further suggests that her pain condition worsened from 2009 or 2010;
   • several doctors (Drs Hundertmark, Speldewinde and Kostos and Professor Cohen) noted extraneous factors associated with Ms Skobelkin-Mulacir's personality and her experiences outside the workplace, including parenthood;
   • it was these factors rather than any remaining contribution from employment, that appeared to be making the major contribution to her chronic pain condition as at the decision of 17 November 2016, which was more than four years after she had last worked and two years after her employment had formally ended.
2. I accept the first limb of Comcare's argument. Only Dr Le Leu has formed an opinion that Ms Skobelkin-Mulcair continues to have residual symptoms of CTS; all other doctors regard the condition as having been resolved by surgery, or, in Professor Cohen's case, as possibly not having occurred at all. The preponderance of medical opinion clearly favours CTS not contributing to Ms Skobelkin-Mulcair's condition at some time after surgery at the end of 2007.
3. As for the second limb, I am not persuaded that the evidence is as compelling as Comcare asserts. The evidence that the chronic pain condition was settling over 2008-2009 rests in particular on Dr Harrison's medical certificates, which certified Ms Skobelkin-Mulcair fit to work for certain daily and weekly hours, often with prescribed breaks and restrictions on keyboarding. The pattern that those certificates display is not one that lends strong support to Comcare:
   • 20 hours per week at 24 January 2007 increasing to 37.5 hours per week at 16 November 2007, followed by two months unfit for work (presumably for CTS surgery);
   • 15 hours per week from 17 January 2008, increasing to 30 hours per week by 4 July 2008, followed by four months unfit for work;
   • 12 hours per week from 8 November 2008, increasing to 30 hours per week up to December 2009 and full-time hours and days from December 2009 to February 2010, followed by a reduction over February to June 2010 to 30 hours per week, followed by six weeks unfit for work from 10 June to 30 July 2010 ("anxiety" is added to "overuse injury right arm" at 10 June 2010);
   • 22.5 hours per week from 30 July 2010, decreasing to 12 hours week at 14 October 2010, increasing to 15 hours per week at 15 November 2010, to 20 hours per week at 18 March 2011 and to 22 hours per week at 1 July 2011, followed by a month unfit for duty from 22 July 2011;
   • 24 hours per week from 4 October 2011 for a month ("anxiety" is no longer given as a condition occasioning unfitness) followed by two months unfitness for work from 9 February 2012;
   • 24 hours per week from 10 April 2012 to 9 July 2012, followed by unfitness for work from 14 July 2012.
4. In that pattern there are some information gaps, especially towards the later period, but even so, it does not display the clear pattern that Comcare asserts. No doubt the leave occasioned by Ms Skobelkin-Mulcair's accepted psychological condition had some kind of distorting effect. But even taking that into account, it is not possible in my mind to discern a pattern that Ms Skobelkin-Mulcair's chronic pain was resolving, to the extent that subsequent factors can be regarded as having taken over from her employment.
5. Comcare also relies on a number of statements made by Ms Skobelkin-Mulcair's examining doctors. Dr McGrath on 15 June 2009 referred to Ms Skobelkin-Mulcair's condition as "relatively stable" (T28); and on 11 November 2011 Ms Coghlan noted Ms Skobelkin-Mulcair's efforts to manage her pain problem, and that she was more focused on the pay and leave dispute (T43). Once again, these, taken at their highest, do not compellingly present Ms Skobelkin-Mulcair's pain condition as having resolved.
6. Against this evidence are the frequent comments by Ms Skobelkin-Mulcair's doctors that the chronic pain syndrome is likely to be difficult to treat and likely to persist. That comment is made by Dr Roberts (T22, dated 22 September 2008); Dr Harrison (T27, 25 February 2009); Dr Hundertmark (T58, 28 May 2013); Dr Kevat (T60, 1 July 2013); Dr Paul (T79, 10 August 2016); Dr Kostos (T80, 25 August 2016). Dr Kostos thought the condition had arisen many years earlier and would persist, even if at the same time he thought it not to be compensable. Dr Paul took the view that the symptoms of the chronic pain condition had arisen after surgery for CTS and would persist indefinitely.
7. Dr Pascall, whose report (T23, dated 21 August 2010) is perhaps the most thorough, reasoned and detailed examination of the issues, took a different view: she regarded the pain problem as one that was capable of resolving if appropriate modifications were made in the workplace. It is not clear to me that the comprehensive modifications she suggested were pursued; but the medical evidence certainly appears to show that the condition did not resolve as she had hoped it might. In any case, I cannot find in Dr Pascall's report an indication that she thought at the time that Ms Skobelkin-Mulcair's condition was in some active process of resolution, or that the causal factors underlying it were shifting or receding.
8. As for the contribution of Ms Skobelkin-Mulcair's psychological make-up, it is certainly the case that the anxiety condition that Ms Skobelkin-Mulcair was compensated for was unrelated to her chronic pain condition and is now closed. But that does not entail, as noted above, that psychological factors can make no contribution to her chronic pain. A number of doctors think that they do, as set out earlier. But the evidence that such factors have somehow taken the place of the original causation is very thin. The opinion of Dr Speldewinde, for example (T84, dated 16 November 2016) notes that Ms Skobelkin-Mulcair's pain sensitisation has improved in the three years she has been away from work; that would seem to suggest that work was contributing, at the very least, to the severity of the condition and, as it does not point to anything that might have taken the place of the contributions from employment, does not appear to assist Comcare. Dr Hundertmark certainly notes Ms Skobelkin-Mulcair's "very negative attitude to the workplace" as a result of her pay dispute; but he denies any psychiatric disorder or diagnosis, including a psychiatric pain disorder, and it is not clear that a negative attitude to the workplace is in some way excluded as an employment contribution to the pain condition. The problem here, for Comcare, is that any apparent psychiatric or psychological contributions to the pain syndrome are not sufficiently disentangled from Ms Skobelkin-Mulcair's employment.
9. Finally, Comcare's contention flies in the face of the medical evidence of continuity and the opinions of so many doctors that the chronic pain condition was likely to persist, once established. In the end, it is Comcare's own experts who seem to hold that view most emphatically. I note in Comcare v Power [2015] FCA 1502 the remarks of Katzmann J (at [69]-[71]) that in a decision such as this, if I were to decide that Ms Skobelkin-Mulcair's entitlements should no longer continue, I must be satisfied that at least one of the entitling circumstances must have ceased to exist.
10. I find that Ms Skobelkin-Mulcair's chronic pain syndrome continues to be caused by her employment, to the required degree. The nexus would be established, in my view, whether the test to apply is of a significant contribution (on the accepted basis that the pain condition is a secondary condition arising after surgery for CTS) or of a material contribution (assuming the pain condition to have arisen in parallel with the CTS). Comcare remains liable to pay compensation under sections 16 and 19 of the SRC Act.

Does Ms Skobelkin-Mulcair reasonably require medical treatment?

1. The experts agreed that it was reasonable for Ms Skobelkin-Mulacir to seek medical treatment, but that there was little treatment available for chronic pain conditions. Two of the experts supported consulting a multidisciplinary pain management clinic, while recognising that the gains were likely to be limited. At present Ms Skobelkin-Mulcair is engaged in self-management, and all the experts recognised that as appropriate.
2. No argument was offered that any treatment undertaken or contemplated by Ms Skobelkin-Mulcair was not reasonable treatment under the SRC Act. Comcare is liable to pay her medical expenses on the usual basis from 17 November 2016 up to the date of this decision.

Is Comcare liable to compensate Ms Skobelkin-Mulcair for incapacity?

1. The experts all agreed that Ms Skobelkin-Mulcair is presently incapacitated for work. Comcare is liable to pay incapacity payments from 17 November 2016 to the date of this decision.

1. The medical evidence presented in this matter provided particular challenges. It is plain to me that medical science is still developing an understanding of chronic pain conditions. In that circumstance, especially, it is not helpful to a decision-maker to have medical evidence that represents what appear to be the poles of current opinion, rather than to hear from doctors who are prepared to debate the possibilities and not leap to certainties.

1. The decision under review is set aside. Comcare is liable to pay compensation to Ms Skobelkin-Mulcair under sections 16 and 19 of the SRC Act.

1. Comcare must pay Ms Skobelkin-Mulcair's party/party costs and disbursements, as agreed or taxed, in accordance with section 67 of the SRC Act and the tribunal's "Taxation of Costs" Practice Direction dated 30 June 2015.

I certify that the preceding 105 (one-hundred and five) paragraphs are a true copy of the reasons for the decision herein of Member M Hyman

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