Trask v Workcover/QBE Mercantile Mutual Workers Compensation

3 With those comments in mind I turn to an outline of the background of the matter essentially as it emerged from the applicant's evidence.

4 The applicant who was 41 years of age at trial is the mother of four children from her former marriage to Peter Trask whom she divorced in 1991 and one child from a relationship with a former partner Tim McMinn with whom she also enjoys a friendship and who still resides in her house. The three youngest children aged 3, 12 and 15 reside with their mother.

5 Prior to commencing work with the employer the applicant had worked in a variety of jobs including full time, part time, casual and voluntary work in waitressing, as a telephonist/keyboard operator, office work and as a sales assistant. In 1993 she commenced work with Mr McMinn who owned and managed a transport business. Her duties involved general office and accounts work and although not receiving a formal salary she shared in the profits with the owner with whom she then lived. After Mr McMinn sold the business to his brother, the applicant ran a massage business from home and from a hairdressing salon in Warrnambool for about 12 months. In 1995 she and Mr McMinn bought a coffee shop which they managed for approximately 12 months during which time she worked full time. The business proved unprofitable and was sold in late 1995.

6 It is appropriate to interpolate at this stage that in 1981 the applicant was involved in a car accident whilst she was working as a TAB telephonist in Melbourne sustaining in the accident injury to her lower back and a whiplash injury to her neck. Her evidence was that her neck (and associated left shoulder symptoms) largely resolved after 12 to 18 months but that her low back symptoms as a result of a diagnosed L4-5 disc protrusion continued to trouble her for about six years during which time she was unable to work. By the time she commenced work for the employer on 2 July 1996 it was the applicant's evidence that she suffered neck symptoms only occasionally associated with periods of neck immobility such as when she sat in front of a computer screen for too long, watched a movie or drove for a lengthy period. The symptoms would lift however when the activity finished. In a similar vein it was her evidence that her back only troubled her if she had had a heavy day in the garden or had been involved in activities such as lifting and moving furniture. However symptomatic relief could be achieved by stretching, movement and rest.

7 In January 1996 the applicant moved to Mount Gambier. Prior to the move her partner Mr McMinn had moved to that city for employment reasons. Mr McMinn offered to look after one of the applicant's sons (who suffered Attention Deficit Disorder) in Mount Gambier and this encouraged her to move there to be near the child. The applicant did not live with Mr McMinn in Mount Gambier and was initially reliant on Social Security benefits for her living expenses.

8 On 2 July 1996 the applicant commenced work with the employer as a housemaid. She worked 20 hours per week in shifts of five hours between the hours of 9.00 am and 1.00 pm five days per week.

9 The applicant's work with the employer principally involved the servicing of motel rooms daily, vacuuming the carpeted areas in the motel, on occasions vacuuming the motel's dining room and cleaning the men's and women's toilets every second day. The activities involved in carrying out this work included (in the case of the motel rooms) stripping the linen from beds and replacing same with clean linen, wiping and polishing room furniture and bench surfaces, cleaning and hand polishing bathroom areas including the glass shower screens and the walls of the shower units, mopping and vacuuming carpets with a heavy industrial vacuum cleaner. Polishing required vigorous activity with the applicant's right hand and upper limb. The vacuum cleaner had to be carried from and returned to a storage area. Toilet cleaning in the public areas required amongst other things mopping floors and the scrubbing and the polishing of tiles and plastic surfaces. In the course of her duties the applicant was also obliged to carry heavy bundles of linen with her right upper limb up to five to six times per day and buckets of hot water from their place of fill to the motel units a distance in the order of 40 to 50 metres.

10 Some days after she commenced work the applicant began to experience symptoms in the nature of a "a dull aching pain" in her right upper limb in the outside of her elbow, and in the forearm, wrist and shoulder with lesser symptoms in her left upper limb (but not in the upper section of the limb or shoulder). Although other symptoms the applicant was experiencing at this time in her buttocks and lower limbs abated over time the upper limb symptoms did not save for some abatement in the early stages when she was able to rest after work. As she continued to work her symptoms worsened and in addition other symptoms manifested themselves in her lower back and later in the piece in the form of severe and continuous headaches mainly on the right side of her head around her eyes and in the base of her skull. The applicant particularly noted increased symptoms in her right upper limb whilst carrying loads of linen and negotiating a gate in the motel's yard and back pain when vacuuming and bending to make beds.

11 On 18 July 1996 the worker consulted Dr Dunn a general practitioner about her problems who diagnosed early signs of right lateral epicondylitis and advised her to try and negotiate work changes with her employer which might assist in alleviating her symptoms.

12 On 19 July 1996 the applicant did speak to a representative of the employer telling her of her right arm symptoms. She suggested a number of changes to the way in which she carried out her work and an aid (in the form of a trolley) that might also be of assistance. However despite the fact that some changes were introduced the applicant was in a great deal of pain at the end of her shift and in particular in her right upper limb, hand and right thumb and with lesser (but more severe than previously) symptoms in her left upper limb and a severe headache. It was the applicant's evidence that just the action of taking pillow slips off pillows was agony, that she could not lift the corner of mattresses to tuck sheets in and the spraying and wiping of furniture and the circular motion involved in the wiping of shower alcoves also caused her difficulties. She said she was nearly in tears due to the pain she was experiencing that day.

13 The applicant raised her concerns with her employer at the end of her shift and on Friday 19th requested a form to formally report her injuries. The next morning the applicant was informed that her services were no longer required.

14 On 23 July 1996 the applicant again consulted Dr Dunn who at that time or soon thereafter injected the applicant's right elbow with quarterzone and certified her unfit for work for two weeks. On the applicant's account this caused the elbow pain to settle after a few days although she said she was still troubled with severe and widespread symptoms in the rest of her arm.

15 I interpolate that on or about 22 July 1996 the applicant served on the employer a claim for compensation in the prescribed form asserting that she had sustained injury in compensable circumstances in the employ of the employer namely namely right lateral epicondylitis (tendonitis) on 7 July 1996. She asserted that originally the pain was minimal but that it "gradually increased". In answer to the question What were you doing at the time? She said:- "Holding heavy weight in right arm to open gate + kitchen door - static load on linen, breakfast trays. Vacume/bucket water (sic)." In answer to the question "What led to the injury or disease? She said: - "Static load, while opening gate/doors cleaning, polishing motion repeatedly."

16 The applicant's claim was accepted by the respondent on 6 November 1996 (see Exhibit A7) and she came to be in receipt of weekly payments of compensation of $276.20 per week. These payments were not under threat until 13 November 1999 when the respondent gave notice of its intention to discontinue the weekly payments being made to her on the basis that she had ceased to be incapacitated for work by reason of the compensable disability (s 36(1)(b) of the Act), relying on a report of Dr Cullum of 10 December 1998 to this effect.

17 During the period of recuperation the applicant was offered work by the Paraplegic and Quadriplegic Association of SA Inc ("the PQA") caring for a quadriplegic child in the latter's own home. Dr Dunn at the applicant's request certified her fit for modified duties from 7 to 31 August 1996 not involving heavy lifting and repetitive right arm work. Although initially the applicant was not unduly troubled by symptoms it was her evidence that later she started to have problems in both arms again in particular in the right elbow, forearm, upper arm, wrist thumb and shoulder and in the left elbow, forearm and wrist. The applicant said she experienced difficulty in lifting the child's legs, manoeuvring her wheelchair and with buckling the straps thereon. The applicant consulted Dr Dunn again on 14 August who certified her totally incapacitated for work and she has not worked since.

18 It was the applicant's evidence that about three months' after her employment at the motel came to an end her symptoms were:-

* dull aching in all parts of her right upper limb with severe soreness in the elbow. She asserted that her right forearm, wrist and hand were swollen, with an alteration in colour. She said she was unable to stretch out her right upper limb without a pulling pain through the arm up into her neck and the right side of her face.

* similar but lesser symptoms and discolouration in her left upper limb.

* a burning sensation in both forearms more severe on the right.

* a very sore neck (aching) especially on the right hand side and an inability to move the neck comfortably in any direction.

* worsened lower back ache although not constant. The back became more painful whilst working for the PQA and had not improved since that time.

* constant and severe headache - Panadeine Forte reduced the intensity of the headache for only a few hours.

19 The applicant underwent a number of investigations and treatments for her various symptoms including a bone scan, physiotherapy, a number of stellate gangloin blocks and at one stage a diagnosis of reflex sympathetic dystrophy was proffered as well as one of thoracic outlet syndrome. In addition in about September 1996 the applicant became pregnant. The pregnancy was not planned. She was concerned at how she was going to cope with an extra baby and the extra work because she had expected her pain to disappear but instead her pain was getting worse and worse. She said she "got to a stage where [she] became very frightened, very scared, depressed, crying, worried about the future". (tr 76) The pregnancy was difficult the applicant going into premature labour at 32 weeks. Very early in her pregnancy the applicant was prescribed an anti-depressant which caused her weight to balloon which in turn distressed her. Medication given to the applicant at this time in connection with the pregnancy caused a severe reaction and she was airlifted from Mount Gambier to hospital in Adelaide. The applicant was very ill and had concerns for the health of her baby. She described the stress as becoming "overwhelming". Following the birth of her child the applicant began experiencing numbness in the wrists, hands, palms and fingers (save for the little fingers) of both hands. Carpal tunnel syndrome was diagnosed and the applicant underwent operative procedures in respect thereof in April and August 1998.

20 From the onset of the applicant's symptoms in July 1996 there has been what Dr Cullum has described as "a relentless deterioration of clinical state" (Book of Medical Reports [BM] at 20). Indeed by the time she gave evidence at trial the applicant painted a picture of gross disability. She spoke of sleep disturbance which she attributed to pain and anxiety. During the night prior to her giving evidence she said she managed only 2½ hours sleep by reason of "severe headache, every single muscle in my body ached, I had burning sensations through my arms and around my ankles, in my feet, I had sharp pinprick needles type of things on my forehead and in my arms and in my legs ..." (tr 23) She claimed to have suffered "serious headache in the last 24 hours" and indeed said she had constant headache every day rarely relieved by pain killers. (Exhibit A5 at 36). The applicant said pain in her head radiated down her neck and into both shoulders. She said her neck is always stiff and sore on movement "and pulls down my spine" and complained of constant pain in her right shoulder which is "very tender to touch".

21 The applicant spoke of a dull heavy throbbing pain in the whole of her right upper limb and shoulder and that her wrist and elbow were "stiff, like concrete setting" (tr 25). The symptoms were made worse "by almost all activities". Insofar as the applicant's left arm is concerned she said she suffers similar symptoms (although generally a little less than on the right) including aching which she described as "throbbing", "pulling", burning and sharp and left shoulder tip pain and stiffness in the wrist and fingers" (A5 at 37). She said that since the carpal tunnel procedure had been performed she has been experiencing increasing numbness in both arms. The applicant complained of symptoms and tenderness in her rib cage and spinal pain from her "neck to .. [her] .. tailbone" which can vary from mild to excruciating. She asserted the pain is aggravated by the activities of daily living and that the symptoms cause her to limp and walk at a slow pace at times even when she is on heavy painkillers.

22 The applicant also spoke of symptoms in her legs and feet at 39 of her statement (Exhibit A5) as follows:-

"I have pain which goes down my legs. Sometimes it is a pulling feeling and often patches of skin feel like they are burning. This happens around 10 to a 12 times per day for a few minutes at a time. Sometimes the burning is hot, on other occasions it is a sharp cold "burning" feeling. It is more often hot than cold. On other occasions it is a sharp cold feeling.

My legs ache a lot and I often experience twitchy spasms, There is numbness in my legs when I am asleep. On the side on which I sleep there is almost total paralysis, to the point of my not being able to walk on waking. I have fallen on several occasions on waking. My feet also have burning, sore spots. This feeling goes over my toes and for the last six months I have also experienced a sudden burning sharp pain in my arches and also under the toes. This often causes me to limp."

23 In respect of these various symptoms the applicant takes a cocktail of medication daily including a morphine based pain killer Prolodone (in suppository form), an anti-depressant (Zoloft), Backfolen for muscle spasm, Voltaren, Mogadon (to assist in sleeping), up to eight Panadeine Forte per day and also Paramin for nausea as required and Valium, or Diazapam when required for muscle spasm and anxiety.

24 Not surprisingly it was the applicant's evidence that her condition as described and the resultant restrictions imposed caused her great difficulty in the activities of daily living particularly given that she now resides on a small farm. Moreover, her condition has caused problems within the family (see eg Exhibit A5 at 55). The applicant gave detailed evidence as to her current restrictions (Exhibit A5 at 42 to 49), the deleterious effect that the medication she takes has on her bowels (Exhibit A5 at 49, 50), her present state of mind (Exhibit A5 at 50 - 53, 55), the effect that her condition has had on her ability to participate in her hitherto wide range of hobbies and interests (Exhibit A5 at 54, 55) and her need for assistance with housework, gardening, car maintenance and driving and shopping (Exhibit A5 at 55, 56).

25 All in all the picture emerged of a very severely disabled woman having a great deal of difficulty coping with the effects of her condition and who has a very limited ability to function in a way necessary to maintain the lifestyle she had enjoyed previously and meet the living standards she aspires to.

The Medical Evidence and some preliminary conclusions

26 The net effect of the evidence of the worker which I accept is that at all material times she has been totally incapacitated for work and indeed there was no real dispute amongst the medical witnesses that this was the case. (See eg the evidence of Dr Cullum at (tr 146, 147).

27 There was also substantial agreement that at all material times the applicant has suffered from fibromyalgia syndrome (sometimes hereinafter referred to as fibromyalgia) and I so find. Dr Champion (tr 166, tr 167) described the syndrome as follows:-

"Fibromyalgia syndrome is a condition of chronic pain, widespread musculoskeletal pain, which has become almost an exclusive condition that rheumatologists encounter. In fact, in some outpatient clinics, particularly tertiary referral clinics, it can account for 50 per cent of all referrals. The condition classically affects middle-aged women, women in their 40s and 50s. The patient generally has normal x-rays, normal blood examinations; the diagnosis is made by taking a history of the complaints, and generally the women complain of widespread pain, musculoskeletal pain, some come in and complain of the pain being from the tip of their head to their toes. They may have other associated symptoms, and it often overlaps with chronic fatigue syndrome, irritable bowel syndrome and chronic headaches, irritable bladder. The physical examination leads to the diagnosis of fibromyalgia syndrome, in that when one examines the patient, they have a heightened response to light touch or light palpation in classical areas. This was identified by a rheumatologist by the name of Wolfe about 20-odd years ago, ... and Wolfe identified these tender points, and these were in the upper forearms, the upper chest, in the occuput, in the neck, between the scapula or shoulder blades, in the low back, the lateral thighs, the medial knee pads, and the criteria was that the patient had to have an exaggerated or amplified response at the examination in 11 of 18 points, and generally the patient winced, complained with light palpation in those spots, whereas in other areas, one could press them quite vigorously and they would not complain ... So it's a diagnosis made on the features of the patient, starting with their age, generally with their sex, because they're generally in my experience 99 per cent women, the social history, psychological history, their general complaints and then the physical examination, all lead to a clinical diagnosis of this so-called fibromyalgia syndrome. So it's something, as rheumatologists, we see quite frequently. If you were wearing another hat as a psychiatrist, you may call it something else, like somatoform pain disorder, for example, because they don't do a physical examination, but we as rheumatologists, it's a niche that has been identified as part of our expertise, if you like.

Q In that reference to psychologists perhaps calling it somatoform pain disorder, is it your view that fibromyalgia is a non-organic condition.

28 The real contest on the medical evidence was whether the applicant's accepted compensable condition of right lateral epicondylitis (the primary injury) was spent by November 1999 (the time of the respondent's notice of intention to discontinue weekly payments) and whether it played any relevant role in the fibromyalgia from which the applicant has suffered at all material times. As to the matter of the primary injury and whether it has existed at material times in my respectful view having regard to the evidence of the applicant (which as I have earlier indicated I accept in the general sense) and the balance of opinion of the medical practitioners who gave evidence on the question (see eg the evidence of Dr Brown at tr 188, Dr Bastian at tr 204 and Dr Ormandy at tr 229) it is my conclusion, and I find accordingly that at all material times the applicant continued to suffer from that injury. In making that finding I have not overlooked, inter alia, the evidence of Dr Champion who in his examination of the applicant on 19 June 2000 could find no evidence of the primary injury nor that of Dr Doyle to the effect, inter alia, that the primary injury would have long since resolved. I did not however have the benefit of having the evidence of Dr Doyle tested in cross-examination.

29 Turning then to the role of the primary injury (if any) in the fibromyalgia from which the applicant came to suffer.

30 Dr Champion was fundamentally opposed to the notion that there was any connection between the primary injury and the worker's fibromyalgia. In particular it was his evidence that fibromyalgia could not be triggered by an injury such as that suffered by the applicant (tr 168) and that "epidemiological studies would indicate that there is no evidence that post-traumatic fibromyalgia exists" (tr 169). He saw the applicant as "a woman who was bound to develop something like this if she didn't have the injury. I think she's sort of patient (sic) I would see who would develop fibromyalgia syndrome" (tr 180).

31 It is of interest to note that Dr Champion did not dispute that the applicant genuinely felt the pain and discomfort that she complained of when he palpated her at various points during the course of his examination (tr 181).

32 Dr Cullum had the opportunity of assessing the applicant on a number of occasions between September 1996 and June 2000. Although initially he considered that the worker's symptoms resulted from an aggravation of the injury/injuries sustained in the 1981 accident referred to earlier I reject that opinion as unconvincing in all of the circumstances. Of significance however as noted earlier Dr Cullum observed a relentless deterioration in the worker's condition over the period of his examinations which commenced, on his diagnosis, with a low grade epicondylitis of the right upper limb (although he acknowledged that on a pain chart filled in by the applicant at his request on his first consultation with her that she also identified left upper limb symptoms) to the point where he was satisfied that she had developed fibromyalgia. His evidence was (tr 147) "There is no question she's deteriorating, there is no question she is genuinely disabled, there is no question that there is no exaggeration, I have absolutely no problems with that at all".

33 Dr Cullum took the view that there was an iatrogenic cause of the applicant's condition. Thus at tr 147 tr 148):-

"Q I just want to ask you: what other aspects of the medical management did you think at that stage were causing this iatrogenic deterioration. Was it the treatment as a whole.

A Well, I think the whole case has become a complete maelstrom. I mean, we've got a rejected claim, we've got a dispute, we've got a patient who's depressed. My personal view is that we have a patient who was a fragile eggshell before she had the injury, that she had this injury and has become a major problem now, that with the best will in the world from various doctors she's definitely got worse, she's complaining to me she's worse, she's physically worse, I'm sure she'll state she's worse, and my difficulty has always been, well, how does this all relate. My personal view is that she has developed a pain disorder, I think she's developed post-traumatic fibromyalgia syndrome, I think she's got lowered pain tolerance, I think the fibromyalgia syndrome - at least 10 per cent of these conditions are post-traumatic, and I think she didn't have fibromyalgia when I first saw her, she does have it now, and I think that she's just got worse."

34 Dr Cullum reiterated his view (at tr 149) that "a certain number of ... patients do get a post-traumatic form of the disorder .. [although] .. that's not a view of a lot of people". (See also tr 161 to the same effect).

35 As to the question of any linkage between the primary injury and fibromyalgia the doctor said at tr 150:-

"Q I take it that you'd agree that one possible trigger for this very unfortunate sequence of events is in fact the industrial injury, the period of exposure to a work situation which she wasn't handling all that well at Le Cavalier.

A Well, this comes down to the moot point of the whole issue, doesn't it? In 1996 when I saw her, she had some low-grade symptoms, there was an obvious dispute between the employer and her, and then where my difficulty comes is when I see her again in 96, 98, 99, there's this relentless deterioration. Now, is it due to other events, is it due to psychosocial variables, or is it related to the original workers compensation injury, for which direct treatment has made her worse? I don't know the answer to that question."

"I saw her in 1996 and there were some low-grade symptoms. I saw her seven months later and she was hugely worse, having a whole bunch of treatment which I didn't understand why she was having it. Now, what caused her to completely deteriorate in that period of time, I do not know. Do I relate all of what she's presenting now to her original injury in 1996 when she had minimal symptoms, she was there for a very short period of time, on somebody who was already a fragile eggshell - no, I have a real dilemma, and I don't know the answer."

"Q And some of the research papers indicate that a significant proportion of fibromyalgia sufferers report it following trauma, do they not.

A Well, standard textbooks will tell you that there is a post-traumatic component to fibromyalgia ... and a lot of ... people will say that they see patients who have fibromyalgia and they have difficulties in working out what the causation is. But I have absolutely no doubt that this particular patient has post-traumatic fibromyalgia, because she did not have it in 1996. That is the one thing I have an advantage on other people is, I did see her and I looked for it then, and she didn't have it, and she's certainly got it now.

Q But the rapid onset epicondylitis could be the type of trauma that could precipitate it.

A Could be; could be dispute, could be the psychological diagnosis, could be life events in her psychosocial history, could be anything.

A Could be anything, any traumatic event. But she definitely did not have fibromyalgia when I first saw her."

38 In terms of the experts called in support of the applicant's case Dr Brown was unable to add much on the matter of fibromyalgia although she thought it likely the former was suffering from that condition inter alia (tr 190). Dr Brown's understanding however was that it was not clear "what the mechanism which produces fibromyalgia is".

39 Dr Bastian was of the opinion that when he reviewed the applicant in June 2000 she had gone on to suffer from fibromyalgia which he acknowledged was "a very controversial diagnosis". He opined that "the condition may possibly follow a more focal musculoskeletal injury, but at the current time in the evidence based medicine there are articles for and against that belief". (tr 209) It was the opinion of Dr Bastian in light of all of the circumstances including in particular the sequence of events that her fibromyalgia was a sequelae of the primary injury although he could not "support this on current evidence based medicine" because to borrow the words of counsel for the applicant as a means of explaining his opinion "the jury is still out on what may or may not cause fibromyalgia". He acknowledged that "one of the very strong theories" was that fibromyalgia was "generated by psychological factors" (tr 219) and he had "no doubt" that depression was a major factor in it. He further acknowledged that there were a large proportion of cases where there was no history of obvious incident or injury preceding the onset of the syndrome although again he said the matter was controversial there being published articles for and against the role of pre syndrome trauma. It was his evidence that in his practice he saw "a large proportion of patients with fibromyalgia .. [following] .. an injury, but I can't substantiate that on evidence based medicine" (tr 220.

40 Finally Dr Ormondy who examined the applicant in June 2000 essentially dealt with the applicant's asserted condition of epicondylitis of which in his view, there was "definite pathology, clinical pathology of external epicondylitis of the right elbow and to a lesser extent, the left elbow" (tr 229) which he related to her work for the employer. He was unable to add much on the condition of fibromyalgia although he "felt there was non-organic augmentation of .. [the applicant's] .. response to injury". However he did not think she was malingering.

41 The substantial issue remaining for decision is whether the fibromyalgia from which I have found the applicant has suffered at all material times is compensable.

42 In order to succeed in that claim the applicant must establish on the balance of probabilities that her fibromyalgia which is undoubtedly a disability within the meaning of the Act arose from her employment with the employer.

43 In deciding that question the proper approach to adopt was addressed by Lander J (Bollen and Nyland JJ concurring) in WorkCover Corporation v Sherriff unreported but JN S5831 delivered 1 October 1996 at 11 of his reasons for decision as follows:-

"[The] evaluation is a factual inquiry, to be approached by a common sense evaluation of the chain of events and at all times applying the words of the Act to the medical condition as factually determined, so that the inquiry is always relevant to a disability, disease or secondary disability and whether any of the particular conditions arise from employment.

In applying that common sense approach the Tribunal of fact will, on occasions, recognise that there is more than one event which might have "caused" the disability. In those circumstances it will still be a question of fact whether the disability arises from employment. It is not, on this legislation, a question whether the employment was a material, proximate, real or an effective cause, but a question as to whether on the facts as found the employment was significant enough to still be able to say that the proved disability, whether a disability, secondary disability or disease, arises from that employment. It is sufficient in my opinion to adopt the plain meaning of the words in the Act without adding any descriptive adjectives to those words. To determine a test which requires the proof by the worker that the employment was the real cause, the effective cause or the material cause would be to judicially amend the Act. Questions of causation are matters of fact and therefore, no test of causation needs to be propounded except that contained in the Act itself.

It will be the case, as Kirby P has predicted, that subsequent events will occur that break the causal connection between the disability and the employment such that it can no longer be said that the disability arises from employment. When and if that occurs that will be determined as a matter of fact.

In all cases the tribunal of fact is simply called upon to establish whether the facts, as established, allow it to be said as a matter of common sense that the disability proved (which includes a disability, secondary disability or disease) arises from the employment as defined in s 30."

44 In terms of fibromyalgia Drs Champion, Cullum and Bastian made the principle contributions. In simple terms Dr Champion would not allow that fibromyalgia could be triggered by an injury such as the primary injury. Although Dr Cullum was of the view that trauma such as the primary injury could trigger the disorder he was unable to say what caused it in this case. He said, inter alia, the trigger could be the primary injury "could be dispute, could be the psychological diagnosis, could be life events in her psychosocial history, could be anything ... any traumatic event" or a combination of those factors. Dr Bastian said the condition may possibly follow "a more focal musculoskeletal injury", and in this case the sequence of events suggested to him it was a sequelae of the primary injury although he thought that the applicant's depression was a major factor in the condition.

45 In my respectful view Dr Champion approached the problem very much as a scientist requiring, in essence, scientific proof of linkage between the primary injury and the condition of fibromyalgia. However as Gobbo J (Young CJ and Kaye J concurring) said in Dohl v Grice (1981) (VR) 513 at 522:-

"There is the obvious danger that an expert when asked to provide an opinion as to whether a causal link exists may do so in terms of scientific proof that may be altogether too exacting for the degree of satisfaction necessary in a legal proceeding."

46 In a similar vein Gilchrist DP remarked in Brumby v WorkCover/Allianz Australia (BRL Hardy Ltd) [2002] SAWCT 18 in par 39 that in civil jurisdictions triers of fact "do not require a degree of persuasion that would satisfy the demanding scrutiny of a scientist. They require no more than a persuasion on the balance of probabilities, arrived at from a commonsense evaluation of the evidence."

47 Given all of the circumstances I have a general preference for the evidence of Drs Cullum and Bastian on the fibromyalgia issue which at its lowest allows the possibility that the primary injury (along with other factors) played a role in the onset of the applicant's fibromyalgia. It is of course established that a possible cause may be elevated by evidence to a probable cause; EMI (Australia) Ltd v Bes (1970) 2 NSWR 238; Tubemakers of Australia Ltd v Fernandez 50 ALJR 720 and evidence concerning the sequence of events may inspire a presumptive inference about causation of the kind approved by the High Court in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538.

48 In my respectful view in light of all of the evidence the probabilities are that a number of factors played a role in the development of the applicant's fibromyalgia. In particular, in my view, it is hard to ignore as a factor the primary injury and the symptoms therefrom which have continued to trouble the applicant at all material times and have caused her frustration and worry including concerns about her ability to cope when she learned she was about to have another baby. Moreover, the evidence of Dr Cullum suggests the starting point of the relentless deterioration in the applicant's condition of which he spoke was the ooccurrence of the primary injury.

49 As to the other factors I think it likely that the many treatments and investigations involved in attempting to alleviate the primary injury, depression, life circumstances and complications with her pregnancy, all played a part, inter alia, in the development of the applicant's condition.

50 In the result, on a weighing of all relevant considerations, I am satisfied that the primary injury featured in the fibromyalgia disability such that it can be truly said that "the employment was significant enough still to be able to say that the ...[applicant's fibromyalgia]... `arises from' the applicant's employment with the employer;" Sherriff (supra).

51 As I see it the above finding leads inevitably to the conclusion that the applicant is and has been at all material times totally incapacitated for work as a result of her fibromyalgia condition and thus the respondent is not entitled to discontinue weekly payments being made to the worker pursuant to s 36(1)(b) of the Act as asserted in its notice of 13 January 1999 and which formed the basis of dispute No 478 of 1999. That finding of course has ramifications for the other disputes between the parties which have not been fully addressed on the hearing thus far.

52 I direct that the parties confer with respect to those matters with a view to finalising all matters in dispute between them. However in the event that they are unable to agree and/or final orders are required, I will relist the matter at a mutually convenient time.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.