Robertson and Comcare [2002] AATA 1259 (6 December 2002)

Last Updated: 9 December 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1259

ADMINISTRATIVE APPEALS TRIBUNAL ) No A2000/345

) No A2001/44

GENERAL ADMINISTRATIVE DIVISION ) No A2001/363 No A2001/364 No A2001/365

Re JOANNE ROBERTSON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr G A Mowbray

Date 6 December 2002

Place Canberra

Decision The Tribunal: 1. Sets aside the decisions under review in matters A2000/345, A2001/364 and A2001/365 and remits the matters to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that (a) in early 1995 Ms Robertson injured her right shoulder, forearm and thumb (b) as a consequence Ms Robertson currently suffers from a chronic regional pain syndrome (c) Ms Robertson's regional pain syndrome has been ongoing and continuous since early 1995 (d) the regional pain syndrome was work-related in its origin in 1995 and continues to be a work-caused injury for the purposes of the Act (e) this condition has not ceased (f) Ms Robertson was incapacitated for work as a result of the original injury in early 1995 (g) Ms Robertson was incapacitated during the periods for which she sought incapacity payments from May 1998 to October 1999 (h) Ms Robertson was incapacitated for work at 13 March 2000 (i) Ms Robertson was incapacitated for work at 20 June 2001 (j) Ms Robertson remains incapacitated for work today. 2. Sets aside the decision under review in matter A2001/44 and in substitution therefor decides Ms Robertson is entitled to compensation for a house clean and gardening assistance. 3. Sets aside the decision under review in matter A2001/363 and in substitution therefor decides Ms Robertson is entitled to the cost of motorised garage doors. 4. Orders the Respondent to pay the Applicant's costs as agreed or taxed.

..............................................

Member

CATCHWORDS

COMPENSATION - correct diagnosis of condition - whether current condition related to employment or constitutional - whether incapacitated for work - whether entitled to compensation for house clean and gardening assistance - whether entitled to the cost of motorised garage doors

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 19, 29, 39

Re Carson and Telstra Corporation (2001) 33 AAR 351

Lees v Comcare (1999) 29 AAR 350; 56 ALD 84

Comcare v Nichols [1999] FCA 209

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Commonwealth v Borg (1991) 20 AAR 299n

Comcare v Rowe (2002) 35 AAR 410

Re Smith and Comcare [2002] AATA 249

REASONS FOR DECISION

6 December 2002 Mr G A Mowbray

1. This matter concerns five applications by Joanne Robertson for review of decisions made by Comcare. The first application (A2000/345) is for review of a decision dated 31 August 2000 that on and from 13 March 2000 Ms Robertson was not entitled to any payments for incapacity under section 19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). A2001/44 relates to a decision dated 12 January 2001 that accepted some liability for household services but denied a "one off clean" of Ms Robertson's house and gardening expenses.

2. The remaining applications are for review of three separate decisions made on 28 August 2001. A2001/363 relates to a decision denying the cost of motorised garage doors that Ms Robertson said she had installed because of her compensable condition. A2001/364 concerns a decision that ceased liability for her condition on and from 20 June 2001. Finally, A2001/365 relates to a decision denying Ms Robertson's claim for incapacity payments for a total of 130 days between 6 May 1998 and 15 October 1999.

3. The matter was heard from 19 - 22 February 2002. Ms Robertson was principally represented by her husband, Mr Stuart Robertson, although on occasion she also presented her own case. Comcare was represented by Mr Charles Clark of counsel. At the close of the hearing the parties were also given an opportunity to provide additional written submissions if they desired. A written submission was received from Ms Robertson on 8 March 2002 and from Comcare on 27 March 2002.

Background

4. Ms Robertson was born on 1 May 1959. She joined the Public Service as a dietician in 1984 in Adelaide and performed a variety of roles in that area before transferring to Canberra in 1993.

5. Early in 1995 Ms Robertson spent a period of time acting in a higher position. During this period she used the office and workstation of the person who normally worked in that higher position. On 17 March 1995 she made a claim for compensation and rehabilitation for "strained right shoulder, right flexor tendonitis, right forearm and right thumb" in which she attributed her condition to the time recently spent using the other person's workstation. It is evident this claim was accepted although the initial acceptance does not appear in the documents tendered to the Tribunal.

6. Ms Robertson continued to work full-time but subject to some medical restrictions until going on maternity leave during 1996. She returned to work but after a few months began working part-time and taking leave without pay for the days not worked. There is no dispute that this was initially for the purpose of looking after her infant son, but there is considerable dispute as to whether this continued to be the rationale for working part-time.

7. In about October 1999 moves were made by Ms Robertson's management to alter the existing state of affairs. Again, the precise nature of what took place over the next few months is the subject of dispute. It is sufficient for the present to say that Ms Robertson began to make claims for incapacity payments in relation to days not worked. In addition her hours worked began to drop and eventually there were periods where her general practitioner certified her unfit to work.

8. On 24 May 2000 Comcare rejected claims for time off work on and from 13 March 2000. The same letter also informed Ms Robertson that Comcare intended to cease paying compensation benefits altogether but no action was taken at this time.

9. On 19 and 26 June 2000 Ms Robertson made requests for the determination on her claims for time off work to be reviewed. Comcare affirmed that determination on 31 August 2000 and an application for review of this decision was lodged with the Tribunal on 14 September 2000. This is the subject of A2000/345.

10. Other forms of compensation continued to be paid. On 25 October 2000 Comcare approved three months of household services, not including gardening, at three hours per week. Ms Robertson sought a variation in the services provided to include specific recommendations from a home assessment that been conducted in March 2000, an assessment that Comcare had referred to in its determination. These recommendations included a one off thorough clean and gardening services. Ms Robertson also sought repayment of the cost she had incurred in replacing her garage doors. This issue had also been discussed in the earlier home assessment.

11. On 12 January 2001 Comcare affirmed the determination relating to household services. An application for review was lodged with the Tribunal on 23 January 2001. This is the subject of A2001/44.

12. On 12 April 2001 Ms Robertson's solicitors submitted a claim for incapacity payments for days off work between 6 May 1998 and 15 October 1999. The precise days claimed are detailed, totalling 130 days. This claim was denied on 20 June 2001 and a reconsideration was sought on 19 July 2001.

13. On 15 May 2001 Ms Robertson requested a decision on her claim for the cost of new garage doors. Comcare formally denied the claim on 21 May 2001. The same letter also repeated the intention to cease all liability for Ms Robertson's condition. She requested a consideration regarding the garage doors on 18 June 2001.

14. On 20 June 2001 Comcare acted on its stated intention and determined it was no longer liable to pay compensation on and from that date. Ms Robertson requested reconsideration of this determination on 19 July 2001.

15. On 28 August 2001 Comcare issued three separate decisions, each affirming a previous determination. One related to the cost of motorised garage doors, another to the claim for 130 days of incapacity in 1998-99 and a third to the cessation of all liability. Three separate applications for review were lodged with the Tribunal on 31 August 2001 (A2001/363 to 365).

Issues

16. The parties agreed that there are two principal issues to be determined. First, whether Ms Robertson suffers from a condition that was materially contributed to by her employment. In essence this issue arises because there is a dispute as to the correct diagnosis of Ms Robertson's current condition and whether it is constitutional in nature. Comcare's initial acceptance of liability is not under review, although during the hearing Mr Clark faintly suggested that that initial acceptance was questionable.

17. Secondly, if Ms Robertson's condition was materially contributed to by her employment whether this condition causes or has caused in the past any incapacity for work.

18. There are also subsidiary issues that must be addressed to determine all the applications for review. These include whether Ms Robertson is entitled to compensation for a house clean and gardening assistance, and whether she is entitled to the cost of installing motorised garage doors.

Legislation

19. The relevant provisions of the Act are as follows

"4 Interpretation

(1) In this Act, unless the contrary intention appears:

...

"household services", in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household.

"impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

"injury" means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

...

"rehabilitation program" includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.

...

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

..."

"14 Compensation for injuries

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

..."

"16 Compensation in respect of medical expenses etc.

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

..."

"19 Compensation for injuries resulting in incapacity

(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

..."

"29 Compensation for household services and attendant care services

(1) Subject to subsection (5), where, as a result of injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.

(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:

(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;

(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;

(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;

(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;

(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).

..."

" 39 Compensation payable in respect of certain alterations etc.

(1) Where:

(a) an employee suffers an injury resulting in an impairment; and

(b) the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;

the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:

(c) any alteration of the employee's place of residence or place of work;

(d) any modifications of a vehicle or article used by the employee; or

(e) any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;

being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.

(2) The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:

(a) the likely period during which the alteration, modification, aid or appliance will be required;

(b) any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work;

(c) any difficulties faced by the employee in gaining access to, driving or enjoying freedom and safety of movement in, a vehicle used by the employee;

(d) any alternative means of transport available to the employee;

(e) whether arrangements can be made for hiring the relevant aid or appliance;

(f) when the employee has previously received compensation under this section in respect of an alteration of his or her place of residence or a modification of a vehicle and has later disposed of that place of residence or vehicle--whether the value of that place of residence or vehicle was increased as a result of the alteration or modification.

..."

Evidence

20. The documentary evidence before the Tribunal included four sets of "T-documents" filed under section 37 of the Administrative Appeals Tribunal Act 1975. Each set was admitted into evidence for all five applications. Set 1 was the original set filed in application A2000/345, with documents labelled T1 to T28 within the set. Set 2 was a supplementary set filed in A2000/345 (T1 to T21). Set 3 was filed in A2001/44 (T1 to T14). Set 4 is a "supplementary" set that was described as relating to all of the applications (T1 to T29).

21. The Tribunal also took into evidence a series of seven "Annexures" prepared by Ms Robertson and her then solicitors. These appear to have been an effort to remedy the deficiencies in the T-documents, particularly Set 1 which unfortunately is somewhat chaotic. Many documents appear in multiple locations through the T-documents and/or Annexures. No attempt is made in these reasons to identify all the copies of a particular document.

22. The Tribunal also received Applicant's exhibits A1 to A45 and Respondent's exhibits R1 to R15. Oral evidence was given by Ms Robertson, her husband Mr Robertson, Professor Philip Sambrook (rheumatologist), Dr G. David Champion (rheumatologist and specialist in pain management), Dr Garth Eaton (occupational physician), Dr Gregory Carr (rheumatologist), Dr Andrew Brook (rheumatologist), Dr Paterson Kwan (general practitioner), Dr Peter Stevenson (consultant physician), Dr Neil McGill (rheumatologist), Dr Joan Chen (consultant in occupational medicine), Ms Shirley Byrne, Ms Elizabeth D'Abbs, Ms Joyce Lawrence, Ms Jean Ffrench and Mr Philip Drever. Ms Byrne and the other lay witnesses named after her are employees of the Department of Employment, Workplace Relations and Small Business along with Ms Robertson.

Ms Robertson's Evidence

23. Ms Joanne Robertson gave evidence that her job as a dietician prior to 1993 had not been "deskbound" in contrast to her later work. Her main role had been interviewing patients at their bedside. She had transferred to Canberra for policy work in what was then the Department of Industrial Relations.

24. Prior to 1995 she had not had any conditions similar to her problems since then. Ms Robertson was cross-examined on this prior medical history, specifically on the accuracy of the medical history she had given to various doctors and her failure to mention certain events to some or all of them. These included a motor vehicle accident in 1985 and an episode of back pain in 1986. She responded that these had been minor and she had not suffered any ongoing problems. She had had only one treatment for the motor vehicle accident. She had had two physiotherapy sessions and a single investigative X-ray for the back pain and never returned for treatment.

25. In 1992 she had a "twinge" while lifting a box but no ongoing pain. She subsequently acknowledged that she had had some symptoms in her left shoulder and neck for a period of about four weeks, but maintained this had resolved and was nothing like her current problems. An episode of shoulder and knee pain in October 1994 had been diagnosed as due to a viral infection.

26. In January 1995 Ms Robertson commenced acting temporarily in a more senior SOGB position using the workstation of the officer who normally occupied this position. This workstation had been set up for a man who was two metres tall, i.e. considerably taller than herself. It had been jacked up on blocks for his use. The desk was sloped and the computer mouse was above the height of the keyboard. As a consequence she had injured her right shoulder, forearm and thumb. She continued to suffer pain on returning to her own workstation and consulted Dr Kwan, her general practitioner for treatment after about a week. In March 1995 she claimed compensation and Comcare subsequently accepted liability.

27. Apart from one day off she continued to work, but with restrictions on her use of computers and in particular keyboards. Her workplace had been supportive and she received assistance with keyboard duties.

28. In June 1996 she went on maternity leave. Ms Robertson stated that the decision to start a family had been made only about a month before she became pregnant. She denied having made the decision in June 1994, pointing out that a reference to "Planning preg" in the notes of Dr Hamilton did not have any timeframe attached to it.

29. She agreed that her condition had been aggravated on one occasion by breastfeeding her son, but could not recall any other aggravations associated with caring for him. She had looked at her methods of care in order to avoid aggravating her condition. She had consulted her physiotherapist and nurses on how to manage.

30. From October 1996 to February 1997 apart from recreation and parental leave Ms Robertson had worked full-time on modified duties. From February 1997 until October 1997 she continued to use the balance of her maternity leave, working only two or three days per week. Her husband was also working part-time during this period.

31. From October 1997 to May 1998 she generally worked up to three days per week, occasionally four when her section of the Department was busy, taking leave without pay on an ad hoc basis. It was her personal choice not to work full-time and she was not entitled to any compensation for this period. Her son was in childcare on a part-time basis.

32. Ms Robertson stated she intended to return to full-time work in May 1998. However Dr Kwan had indicated that she was not fit to resume full-time work. From May 1998 Dr Kwan placed restrictions on her hours of work on her medical certificates. At that time she sought advice from Ms Byrne, the Department's occupational health and safety and rehabilitation case manager to whom she had been providing the medical certificates. She asked Ms Byrne about her entitlements on at least two occasions and was told she was not entitled to workers' compensation for the hours not worked because she had been taking leave without to pay. She continued to take leave without pay.

33. Ms Robertson was cross-examined several times on her claim to have accepted advice that she was not entitled to workers' compensation. She acknowledged having made a compensation claim in South Australia and having requested reconsideration of a Comcare decision in relation to her current claim in March 1996. She also acknowledged having some awareness of her rights in relation to compensation. However, she also stated that she would ask what her rights were. The Comcare decision in March 1996 had set out the right to request reconsideration. She had accepted Ms Byrne's advice because Ms Byrne was the Department's expert on the issue. Several other people in personnel and the pay processing area had referred her to Ms Byrne.

34. In about October 1999 Ms Robertson was informed she was then entitled to incapacity payments and began to claim compensation for this incapacity. This information was revealed to her after her manager, Mr Drever, found out about the previous leave without pay arrangement and said that it could not continue. He had asked her to become permanent part-time instead and she had told him that she was working part-time because she was certified medically unfit to work full-time. She had also told him of the previous advice that she was not entitled to compensation. The request for her to become permanent part-time was made in early September 1999, whereas her first claim for compensation for incapacity was not until late October 1999. Her son had been in full-time childcare from September 1999.

35. Soon after this a rehabilitation provider suggested that she change her routine from working three full days per week to working four hours each workday. This was not Dr Kwan's recommendation but he had been prepared to accept a trial of these hours. This was separate to a Return to Work Plan that was drawn up which had a goal of returning her to full-time work and full duties by February 2000. Ms Robertson had felt pressured to sign the Plan and did not have an opportunity to discuss it with either Dr Kwan or her case manager.

36. The lack of a day for recovery between each working day led to an aggravation of her injury in December 1999. Dr Kwan reduced her hours as a result. From March 2000 he certified her unfit for work for about ten weeks, reviewing her condition weekly. After this Ms Robertson returned to work on low hours and restricted duties. In July 2000 her condition was again aggravated and she spent about seven weeks off work.

37. I note in passing that there were some attempts by Mr Clark for Comcare to link these periods off work with receipt of Dr Stevenson's report and Comcare's denying liability for incapacity payments and notifying its intention to cease liability altogether. These attempts fall down the instant one checks the precise dates. The evidence does not support Mr Clark's contentions.

38. From September 2000 she had returned to work and gradually increased from 9 hours work per week to 15 hours per week at the time of the hearing. She was working 5 hours every Monday, Tuesday and Friday. A restructure had led to Ms Robertson being made redundant. She had chosen to stay in the Australian Public Service rather than accept a package and was currently looking for a position with less desk-based work so as not to always be aggravating her shoulder and arm.

39. Ms Robertson maintained that she had continued to suffer aggravations of her condition from computer-based work or during busy periods. It was the same injury throughout. Her claim had not been "re-activated" in October 1999 but had been continuously open. She had provided medical certificates to Comcare and her employer. From 7 March 1995 to the hearing Dr Kwan had reviewed her condition a total of 85 times. The frequency of her visits to Dr Kwan and to physiotherapy depended on her fluctuating symptoms. She sought attention when it was necessary.

40. The major aggravations of her condition had occurred in May 1998 and May 1999 during preparation of a large number of documents, in October 1998 following amalgamation into a new Department and introduction of a new computer system and in December 1999 when her work hours were altered. Ms Robertson also said that there had been a "re-aggravation" in July 2000 resulting in seven weeks off work.

41. Following her initial injury Ms Robertson had swapped to using her computer mouse in her left hand. She had then suffered symptoms in her left shoulder, although never as severe as on the right. She now tried to rotate mouse usage between both hands. The initial injury was specific to her shoulder but symptoms had gradually spread elsewhere, to her elbows and the middle of her back. The intensity of her pain would increase while at workstations but would reduce again if kept below a certain level. Her doctors had advised her to work within her limits and keep her symptoms under control.

42. At the time of her initial injury Ms Robertson's own workstation was not height adjustable and the keyboard was lower than the one she used while acting in a senior position. Since a transfer to a different building in 1997 she had a workstation where the keyboard itself was at a fixed height, but the height of the entire workstation could be adjusted. She had adjusted the workstation to the best of her own ability, but also raised the issue during occupational health and safety inspections and asked for a proper assessment to be performed. This did not occur until December 1999 and adjustments were found to be necessary (Exhibit A24).

43. No specific equipment was provided to her following her injury. A special mouse was not provided until 1999. Voice activation software was requested in about May 1998 and was not provided until October 1999.

44. Under cross-examination Ms Robertson was questioned on her concerns about a number of departmental officers, particularly Ms Byrne her case manager. Ms Robertson agreed she had wanted Ms Byrne removed from her case. This was in about December 2000 or January 2001 because she believed Ms Byrne had provided Comcare with incorrect information, as well as discovering that Ms Byrne's earlier advice about her compensation entitlements was wrong. In her opinion all of the incorrect information essentially stemmed from Ms Byrne.

45. She denied having wanted the removal of a specific rehabilitation provider. Rather her view had been it was no longer desirable to have any rehabilitation provider. She wished to ensure appropriate management of her injury and her duties by having her situation assessed by people with medical qualifications. She did not refuse a home assessment, she merely requested that a properly qualified person perform it.

46. Ms Robertson acknowledged having worked at the ACT election in October 2001 and the federal election in November 2001. She agreed that these were long working days of 12 or 14 hours but stated this was supervisory work where she was walking around.

47. The reason Ms Robertson had arranged for replacing her garage doors was that her husband would often travel and therefore not be able to open and close the doors for her. The amount of his travel varied. He was not travelling at the time of the hearing. The home assessment carried out in March 2000 had suggested gardening assistance to relieve her husband of outside tasks and enable him to provide more help inside the house.

Other Lay Evidence

Mr Stuart Robertson

48. Mr Stuart Robertson, Ms Robertson's husband, also gave evidence at the hearing. He stated that the previous hand-operated garage doors were replaced with power-operated doors in May or June 2000. This was cheaper than adding a motor to the existing doors. His wife had been able to open and close the previous doors but only with difficulty and pain. At the time of the home assessment he had been travelling to Sydney frequently and was away from home about two nights a week. In his current job he travelled less than once a month.

49. Mr Robertson was also asked whether the birth of his son had interfered with his sleep patterns. He had been woken regularly in the first few months, but by the age of about six months his son had generally slept through the night. It was his responsibility to get up and get his son if he woke. He considered disturbed sleep to be expected and normal when looking after a baby.

Ms Shirley Byrne

50. Ms Byrne was the Department's case manager at the time of Ms Robertson's initial claim and continued in that position until February 2000. At the time of the hearing she was the acting team leader in the People Strategies Team in the Department's Corporate Division. She provided a signed statement (Exhibit R5) as well as being the author of numerous pieces of correspondence in the T-documents.

51. Ms Byrne had not had ongoing personal contact with Ms Robertson following her initial injury and processing of the claim. Copies of medical certificates had been provide on an ad hoc basis, which was not uncommon.

52. She then had a conversation in about June 1998 with Ms Robertson that included discussion of her hours of work. On her recollection the explanation of Dr Kwan's comment on a recent certificate that Ms Robertson would continue to work three days a week was that it was a practice already in place for Ms Robertson to look after her son. The certificate said "to stay working 3 days per week" (Set 4 T12, page 74). She was aware that the previous certificates had not had a restriction on Ms Robertson's hours of work. She had assumed that Ms Robertson was discussing these issues with her supervisor. This had later proved not to be the case.

53. There was no discussion of compensation leave. As Ms Robertson had already had compensation leave when she first suffered her injury, she considered that she was already aware of those rights and did not think it necessary to advise her even though the other claim was 3 years earlier for just one day. Ms Robertson did not ask for the forms required to claim compensation leave. She continued to take leave without pay, citing family or caring responsibilities.

54. It did not strike Ms Byrne as odd that Ms Robertson was not applying for compensation leave in light of the new certificate. Nor did she think it odd that Ms Robertson did not apply for compensation as further certificates with a restriction on her hours were submitted over the course of the next year. Many people did not claim compensation for a variety of reasons, such as fear they may be discriminated against. However she acknowledged that Ms Robertson experience of returning to work when she was first injured had been supportive and there was no reason for her to feel uncomfortable about being on compensation.

55. She similarly stated that it was not uncommon for people to claim only part of the time covered by a medical certificate, as Ms Robertson had in October 1999 (Ms Byrne was shown Exhibit A35 and Set 4 T12 page 82 for comparison). However she agreed that Ms Robertson had been quite happy to continue claiming leave after that time.

56. She had never told Ms Robertson that she could not apply for compensation leave or said anything that could give her that belief. Furthermore, notwithstanding her position she did not regard it as her role to suggest compensation leave as one option. Comcare was the determining authority and the Department did not have a say in whether someone applied for compensation leave. Sick leave was paid whenever Ms Robertson requested it.

57. Ms Byrne was referred to three letters she wrote on 3 November 1999 and 25 October 2000 (both parts of Exhibit A32) and 28 February 2000 (Set 1 T11). She agreed that they all indicated that Ms Robertson's doctor had placed restrictions on her work hours in or after October 1999, after being told she would return to full-time work. This was consistent with her own interpretation of the medical certificates she had received.

58. She was also referred to Dr Kwan's statement (Exhibit A3) that he had discussed a trial of changing Ms Robertson's work routine in December 1999 but was not consulted on the other details of a Return to Work Plan. She stated that it was not normal practice for a rehabilitation provider to go through the entire form with a doctor. The discussion would have included when an increase in working hours could be expected and a return to full-time duty.

Other lay witnesses

59. Ms Jean Ffrench was Ms Robertson's supervisor from October 1996 to November 2001. Ms Robertson worked full-time for the first three months from October 1996, then took leave without pay for two to three days a week to care for her baby. This continued until October 1999 (Exhibit R4). During this period there was one task that she undertook which may have aggravated her over-use injury - the collection of folders in May 1999 for the ILO Conference in Geneva.

60. In Ms Ffrench's oral evidence she stated that it was normal practice for medical certificates placing restrictions on a person's work to be shown to the person's supervisor. It was essential for the supervisor to be aware of the restrictions imposed. She initially maintained she had still not seen certificates limiting Ms Robertson's work activities between May 1998 and November 1999. However after being shown letters to her from Ms Robertson (Exhibits A36 and A37) she acknowledged that she had forgotten about seeing them. Nevertheless she had not been aware that Ms Robertson was subject to any work restrictions until November 1999. Indeed she regularly worked very long hours. As the section only contained three or four people Ms Ffrench would have been told had anyone in the section known of the restriction.

61. Mr Phil Drever became Ms Robertson's branch head in August 1998 when her section was transferred into his branch. He found out about Ms Robertson's leave arrangements from Ms Ffrench. Soon after he learnt of her injury and work restrictions. He thought the appropriate way to deal with this was through workers compensation not annual leave or leave without pay. Since being aware of Ms Robertson's medical restrictions efforts had been made to work around them but he had been unsuccessful in finding a full-time position consistent with the restrictions. From time to time tasks were identified that did not involve computer usage including one stretching over some months.

62. Ms Elizabeth D'Abbs briefly gave evidence on her authorship of a letter to Comcare dated 7 July 2000 (Set 1 T27). She stated that she had in fact only signed the letter. It would have been drafted by Ms Byrne and would have come to her with supporting documentation. If she had not been satisfied she could have asked for additional material. She had never met Ms Robertson and had no knowledge of the details of her compensation claim.

63. Ms Joyce Lawrence gave evidence regarding a letter dated 5 December 2000 (Set 3 T11). She signed the letter but someone else had drafted it. She was aware of Ms Robertson's case as leader of the People & Leadership Team but had little direct contact. She did not work in this area any longer.

Medical Evidence

Professor Sambrook

64. Professor Sambrook , Professor of Rheumatology at the University of Sydney, gave oral evidence in addition to his written reports of 28 August 2001 and 12 December 2001 (Exhibits A7 and A15 respectively). He repeated the diagnosis in his first report of a work related pain syndrome consistent with the condition accepted by Comcare of musculoligamentous strain and flexor tendonitis, which was from occupational overuse. Symptoms had been present for most of the time since 1995. There seemed to have been a relationship between the amount of Ms Robertson's computer use and her symptoms. Professor Sambrook considered that on the balance of probabilities Ms Robertson's condition had been materially contributed to by her employment.

65. The nature of this condition was not completely understood but its existence was well recognised in the literature. It appeared that some people had a neurological predisposition to developing a chronic pain syndrome, but they were asymptomatic until getting the relevant environmental exposure. Patients were often thought to have simple musculoskeletal conditions, such as those that Comcare had recognised here, but something appeared to occur so that the patient did not recover and the process became ongoing and continuous. There was some polarisation of views about the nature of these conditions. There was not an official position endorsed by the Royal College of Physicians, rather the College published the opinions expressed by its members.

66. Some patients improved if they changed their work practices but a large number of people had symptoms indefinitely. Changes in work environment did not always completely resolve the problem. It was common for it to continue at a lower level of symptomatology and then resurface with any increase in workload. Symptoms were best treated early. The longer the delay before modifications in work practices or duration of employment were implemented the worse the prognosis.

67. Professor Sambrook was referred to opinions of other medical experts suggesting Ms Robertson had fibromyalgia. He said that fibromyalgia was also not completely understood. Patients often complained of fatigue and a poor sleep pattern. Their pain was often fairly poorly localised and chronic. A diagnosis of fibromyalgia normally required a number of localised discreet "trigger points". Ms Robertson nominally had two of the 16 or 18 defined trigger points, and they were only on one side of her body. It was highly unlikely she had fibromyalgia. The symptoms described were not typical of fibromyalgia

68. Professor Sambrook was referred to the records of Ms Robertson's left shoulder injury in November 1992 (Exhibit R11). He had not been previously aware of this. He agreed that a shoulder sprain would be of some interest to him, but he would most like to know whether it was a short self-limited episode of pain or whether symptoms had continued between then and 1995. If it had completely resolved as the extra page to Exhibit R11 showed it would be of no significance to the subsequent developments in 1995.

69. Professor Sambrook had been impressed by Ms Robertson's keenness to continue working and found her well motivated in this regard. However, he considered Ms Robertson was fit for work on a part-time basis only, somewhere between 15 and 20 hours per week with restrictions placed upon activities involving repetitive manual considerations or keyboard or computer work. It may be that with retraining and in time, work involving less clerical and computer activities would allow an increase in her work hours.

Dr Champion

70. Dr Champion, a consultant physician in rheumatology, musculoskeletal and pain medicine, gave oral evidence supplementary to three reports dated 29 May 2001, 10 December 2001 and 14 January 2002 (Exhibits A5, A13 and A18 respectively).

71. In Dr Champion's view Ms Robertson has a chronic work-related regional pain syndrome, a predominantly right sided cervicothoracic spinal pain syndrome with shoulder girdle and upper arm disorder, with associated impairment of function. The characteristics of this chronic regional pain syndrome include

* cervical and thoracic spinal pain on movements and vertebral pressure stimuli

* indications of deep somatic referred pain from the spinal origins

* extensive deep secondary allodynia to pressure stimuli and mild cutaneous hyperalgesia to limited regions of referred pain

* possible bilateral supraspinatus tendonitis, and a possible right subscapular site of origin of a component of her pain.

72. Dr Champion found no underlying pathology of particular relevance to her chronic pain disorder. Dr Champion said that this was a work-related disorder in the sense that it occurred in the course of work activities which clearly increased the relative risk of a chronic spinal and upper limb pain disorder and no other important causal influence has been apparent.

73. Ms Robertson did not fulfil the criteria for fibromyalgia, which required chronic widespread pain and deep tissue tenderness particularly at certain tender points. There was a tendency by some doctors to use fibromyalgia as a diagnosis for an idiopathic condition and stop thinking about causal influences. Fibromyalgia did in fact have a variety of possible causes and predisposing factors, as did regional pain syndromes.

74. Much of Dr Champion's oral evidence related to the extent to which his views were accepted by his peers. He considered his views were only out of step with the general medical community in so far as he undertook and followed research on chronic pain disorders and the neurobiological aspects of pain. There was hardly any other research in Australia. His research was generally in line with international understanding and his credentials in this area were internationally recognised. He had served as a committee member, chairman or speaker at international conferences and symposiums. This would not have occurred if his views were considered fringe or inappropriate.

75. The general medical community did not follow this research. As a result there was an overemphasis on psychological interpretations when there was little pathology found. Mr Clark for Comcare specifically referred to Dr McGill. While Dr Champion had every respect for him as a general rheumatologist he did not research this particular field, did not have any prominent position in respect of peer assessment and clearly did not follow the literature on the neurobiology of chronic pain. Dr Champion also did not agree with the approach of Dr Stevenson, who had sought a psychological explanation because he was unable to explain any pathological or neurobiological basis for the disorder.

76. In relation to Ms Robertson's incapacity for work, Dr Champion expressed the view that on the range of duties Ms Robertson was performing at February 2001 working gradually and progressively to 15 hours per week was within her range of capability. There was no question that if she returned to anything approaching the kind of activities previously associated with onset and exacerbation of her pain disorders, the pains would predictably exacerbate. It was possible that she may eventually achieve full time employment but he could not be confident of that. In any event, it would be a slow process.

Dr Eaton

77. Dr Eaton has been Ms Robertson's treating occupational physician since April 2000. Four reports written by him were put into evidence, dated 7 May 2000 (Set 1 T17), 14 June 2000 (Set 1 T27 pages 160-1), 2 May 2001 (Set 4 T12 pages 53-4) and 23 December 2001 (Exhibit A16).

78. Dr Eaton diagnosed her as suffering with a chronic neuropathic regional pain syndrome involving the cervico-thoraco-brachial regions particularly on the right side. Her pain disorder had developed as a consequence of an occupational overuse injury which commenced in 1995. Initially she developed symptoms when working at another workstation away from her normal work location which was ergonomically unsatisfactory. Ongoing workstation deficiencies over the years had contributed to the maintenance of her overuse disorder which had been precipitated by well documented work-related factors. The fact that her condition had become chronic and continued to be a major problem for her was not unusual in those who develop a neuropathic regional pain disorder.

79. During his oral evidence Dr Eaton said that Ms Robertson did not fulfil the internationally accepted criteria for a diagnosis of fibromyalgia, which required tenderness at 11 of 18 specific sites, at any of the times at which Dr Eaton had seen her. Fibromyalgia was very often associated with sleep disturbance and stress. Sometimes the cause was unknown. However, at each of the times Dr Eaton has seen Ms Robertson he had never been able to demonstrate that extent of tender points in the examination. In his opinion she did not have fibromyalgia on those criteria.

80. Under cross-examination he noted any musculoskeletal condition could obviously have various causes both in and outside the workplace. In Ms Robertson's case it was much more likely to be work related unless she was doing a large amount of computer work in another location. In his opinion she had all the features of an occupational overuse injury. The symptoms of this could fluctuate in intensity, particularly with the development of a pain disorder. Sometimes a person initially had another injury, such as a musculoligament strain or tenosynovitis, and a pain disorder did not develop until later.

81. Dr Eaton endorsed Ms Robertson's general practitioner's recommendations that she work reduced hours. He believed that Ms Robertson would only be able to increase her hours very gradually, her condition permitting. Her level of pain and discomfort and disability was such that full-time hours were not possible or reasonable at the time. Dr Eaton did not support Dr McGill's recommendation that Ms Robertson would be able to work full-time hours carrying out her full normal duties. It was hoped that eventually Ms Robertson would be able to increase her hours. However given the chronicity and the level of her established pain disorder any increase would have to be gradual building on the then 15 hours a week. The effects of her disorder had caused considerable disability and a reduction in work capacity.

Dr Carr

82. Dr Carr's oral evidence supplemented his reports of 28 August 2001 and 11 December 2001 (Exhibits A6 and A14 respectively).

83. Dr Carr, a rheumatologist, diagnosed several separate conditions - postural pain from her thoracic kyphosis and structural abnormality in her thoracic spine, dry crepitus in the scapula, and a regional pain syndrome in the upper limb. On the balance of probabilities this pain syndrome was materially contributed to by her employment workstation in 1995. Her symptoms did limit her ability to work and in Dr Carr's view Dr Kwan's restrictions on work had probably been reasonably appropriate. Her condition probably would never really stabilise.

84. In his oral evidence Dr Carr stated that Ms Robertson's symptoms had been contributed to by an increased bend in her thoracic spine ("thoracic kyphosis"), which was a constitutional condition but not a severe abnormality. Poor postures placed load on the muscles in this area and produced pain. Ms Robertson may have suffered as a result of her constitutional condition at some time in the future but it was her unusual and poor workstation that was the initiating factor. It would probably not have happened at that time or progressed as it had since without the work-related factor. He did not think that her workstation from 1997 had caused a material aggravation, as the condition was already there.

85. Given that an anti-inflammatory drug used for Ms Robertson's asthma had provided relief from the pain in her scapula or shoulder blade it was possible there was an inflammatory basis for that pain.

86. Fibromyalgia was a common cause of aches and pains, characterised by diffuse pain. Sometimes it was more localised. It was characterised by a number of tender points. Ms Robertson had a spinal problem that would explain her tenderness over muscle points. She also had tender points outside those defined by fibromyalgia and did not have some of tender points expected for the condition. Dr Carr would not positively exclude a diagnosis of fibromyalgia but did not consider it was the correct diagnosis based on his examination.

Dr Brook

87. Four reports written by Dr Brook were put into evidence, dated 22 February, 19 June, 22 August and 14 December 2001 (Exhibits A4, A8, A9 and A10 respectively).

88. Dr Brook, a practising rheumatologist, was of the view that Ms Robertson's disability related to cervicobrachial pain syndrome with symptoms dominantly on the right. This arose in a work place setting in which there was an epidemiological association between the type of work performed and the development of the syndrome. In his opinion the condition has been continuous since early 1995. It was unlikely that Ms Robertson had the capacity for full-time productive employment.

89. In his oral evidence Dr Brook stated that the correct description of Ms Robertson's condition was largely a matter of semantics. He preferred the description cervicobrachial pain syndrome rather than chronic pain syndrome, which was more general. He would not use the term fibromyalgia for this kind of patient as Ms Robertson did not fit within the definition of that condition, although the mechanism of pain was probably fundamentally the same. It was probable that Ms Robertson's condition would not have arisen without work place factors.

Dr Kwan

90. Dr Kwan has been Ms Robertson's general practitioner since March 1995. The documents before the Tribunal include several of his reports as well as the numerous medical certificates he has written since that date.

91. Dr Kwan's initial diagnosis was musculo-ligamentous strain of right shoulder, flexor tendonitis right forearm and right thumb from occupational overuse. He later revised this to occupational cervical brachial disorder or regional pain syndrome. He noted that this condition was continuing having suffered a number of aggravations. Ms Robertson does not suffer from other underlying conditions.

92. Ms Robertson's condition was caused and aggravated by physical strain and overuse from work activities and working at unergonomic workstations between 1995 and 2000. It is likely that this condition is permanent and she would not be able to return to her previous duties. She may be able to undertake full-time work in the future but subject to permanent restrictions.

93. In his oral evidence Dr Kwan said that Ms Robertson's condition would not have developed without the work she had been doing in her employment. She should have a restricted amount of computer work in terms of keying and the use of the mouse. She should have regular exercise, stretching and rest from the computer, and an ergonomically set up workstation. She needed to vary her posture frequently. She was not fit for full-time employment using computers but might be fit for other full-time work with minimal computer use depending on the duties involved. This was the case since late in 2001, but there were difficulties finding suitable duties.

94. At the time of a medical certificate dated 1 December 1999 (Set 4 T12 page 85) he was prepared to be party to a suggestion that Ms Robertson work five days a week, four hours per day. The certificate stated her condition was to be reviewed again on 22 December.

Dr Stevenson

95. Dr Stevenson completed a single report on 16 March 2000 (Set 1 T14). He was unable to make any musculoskeletal or neurological diagnosis to explain Ms Robertson's pattern of symptoms. Her condition could be described as a regional pain syndrome or a regional fibromyalgia, i.e. a condition of pain amplification and undue preoccupation with minor somatic sensation in the absence of underlying pathology. Dr Stevenson was also unable to identify a material cause or contribution from her employment. Any work aggravation would have been minor, transient and resolved. There was no substantial underlying condition. Her condition did not necessitate any restrictions on her capacity for employment.

96. In his report Dr Stevenson referred to a statement published by the Royal Australasian College of Physicians on Repetitive Strain Injury and Occupational Overuse Syndrome (Set 2 T1). In oral evidence he acknowledged there had always been controversy about this but stated the statement should be taken as the mainstream view. Those conclusions had been repeated over the years and the statement's status had not been diminished.

97. Dr Stevenson accepted that Ms Robertson had certain pains and discomforts in the course of her work. Anyone who sat at a computer for a protracted period would get these. On examination he could not find objective evidence of any specific neurological or musculoskeletal condition. The condition was a non-specific pain syndrome. These could be amplified and perpetuated by both psychological factors and excessive passive manipulation. Psychosocial factors could transform an essentially benign condition of discomfort into a health problem.

98. Dr Kwan had restricted Ms Robertson from full-time work because of an injury that was subtle or speculative. In contrast, guidelines for this condition underlined the necessity of activity, exercise and restoration to the workforce. Dr Stevenson considered that Ms Robertson's responsibilities of family and motherhood were a psychosocial factor affecting her pain. It was also possible that medical advice would be used to shape socially convenient courses.

99. When questioned on fibromyalgia he said that it was a debateable condition. Ms Robertson did not meet the criteria for a formal diagnosis. The term "regional fibromyalgia" was a loose term that could be used to describe her condition that emphasised there was amplification of pain and physical discomfort and an absence of pathology.

Dr McGill

100. Dr McGill, a consultant rheumatologist, prepared one report dated 26 July 2001 after examining Ms Robertson (Exhibit R7). He said that the appropriate diagnostic label for Ms Robertson's constellation of symptoms was fibromyalgia - a report of widespread musculoskeletal pain and tenderness in the absence of any physical disorder to account for those symptoms. He did not think that the condition had been caused by the physical demands of her employment, although stress from family and child caring commitments may have contributed. She was fit to perform her full normal duties on a full-time basis.

101. In his oral evidence Dr McGill regarded the stated position of the Royal Australasian College of Physicians as representing the standard thoughts of physicians generally. The College had not put out another statement on the topic since 1988. There was nothing in his own report that was inconsistent with the College's statement.

102. Fibromyalgia was a label rather than a disease process. It described a constellation of symptoms of widespread musculoskeletal pain and tenderness without any physical explanation, usually in the setting of sleep disturbance and unhappiness, depression or anxiety. However, he did not record any sleep disturbance in Ms Robertson's case. In his opinion this brought into question whether she was genuinely suffering fibromyalgia or was embellishing her symptoms.

103. In non-compensation cases the tenderness was usually a fairly symmetrical problem whereas in the compensation setting it tended to be more regionalised because a person had a mental focus on that particular area as being injured or relating to their case. The underlying factors were the same whether a person had whole body symptoms or more regional symptoms. These factors included abnormal stress reactivity and the belief system of the patient. In the compensation setting another factor was the possibility of being able to continue not working or stay on reduced hours where that was desirable to a person.

104. He did not consider relying on the precise number and location of tender sites to be very useful. Tender spots were not restricted to particular anatomical structures such as joints or bones or muscles. The specific points defined for fibromyalgia were areas where everyone was a little more tender.

105. It was common for people with fibromyalgia to report an increase in symptoms with extra activity, but it was recognised that increased exercise was in fact beneficial. Unlike Dr Champion he did not believe that the condition could actually be brought on by normal physical activity. In contrast, well-defined musculoskeletal conditions like tennis elbow and tendonitis could be induced by physical activity both in and outside the workplace.

106. People frequently reported fibromyalgia to be incapacitating or disabling but when observed they had normal function. Again this was in contrast to organic musculoskeletal disorders. This did not imply deliberately feigning. It was an expression of unhappiness or distress. Pain could be used as a description of what the person was feeling but it was clearly not the same sort of pain as would stop a person from doing things. Fibromyalgia patients did not exhibit the muscle wasting from disuse that occurred with conditions such as arthritis.

107. Ms Robertson had confirmed that when she changed her pattern of work hours in December 1999 the nature of the work did not change. That this caused an aggravation of her symptoms would not have been expected if the actual physical requirements of the activity were influencing the symptoms. Dr McGill hypothesised that the pattern fitted much better with someone who understandably wanted to fit their work commitments into their home commitment of caring for their child. It was probable that having established a pattern of working three days a week Ms Robertson wanted to continue that pattern.

108. When questioned on Dr Champion's opinion he noted that Dr Champion had diagnosed superspinadis tendonitis. This was a well-defined condition that could be imaged by ultrasound or MRI, but an ultrasound examination of the right shoulder was normal. There were other findings of Dr Champion's that did not accord with Dr McGill's examination or were untestable, and some of his report appeared contradictory.

Dr Chen

109. Dr Chen, a consultant in occupational medicine prepared a written report of 22 December 2000 (Exhibit R6). She considered that Ms Robertson presented with an episode of myofascial pain in the right shoulder girdle, associated with postural strain of the shoulder girdles around February 1995. This episode would have settled within a few months. She currently has an underlying constitutional fibromyalgia syndrome, manifested by myofascial pain in the right shoulder girdle, trunk and upper limbs. There was no objective evidence of current or previous musculo-skeletal injury and no evidence of specific musculo-skeletal pathology. There was no neurological abnormality in the upper limbs.

110. The symptoms around February 1995 and for the three months thereafter were probably related to her work situation around February 1995. Thereafter, there were further episodes of myofascial pain related to various work and non-work related situations. Her current condition was no longer related to the work situation of February 1995 or May 1999. The initial injury/overuse strain has long since resolved. The effects of the compensable situation had now ceased.

111. Ms Robertson has an underlying constitutional condition, fibromyalgia, which increases susceptibility to myofascial type pain throughout her anatomy. She considered Ms Robertson capable of working full-time, doing modified duties, with periods of keying restricted to twenty minutes per hour. Ms Robertson may have difficulties performing prolonged keyboard work. This ongoing incapacity is the result of a combination of pain sensitisation and constitutional fibromyalgia syndrome. Thus Ms Robertson was not currently fit for her pre-injury employment in its previous format. However she may be able to resume most of her previous work if a voice activated software computer system could reduce keyboard work by a half.

112. In her oral evidence Dr Chen stated that fibromyalgia was essentially a constitutional condition. The mechanism causing pain had not been proven. It was usually associated with sleep or mood disturbance. But there was no report of sleep disturbance from Ms Robertson, although it would often occur with young offspring.

113. Symptoms could be aggravated by lack of sleep, mood disturbances, stress, lack of aerobic exercise and overuse or postural strain. Excessive keyboard work could aggravate the symptoms, but there was no reason to restrict a person completely from keyboard work. A person's tolerance would depend both on the sort of work and their personal circumstances at the time. Outside activities such as domestic and childcare responsibilities would have an impact.

114. For a diagnosis of fibromyalgia to be made a patient had to be tender at 11 out of 18 discrete tender points throughout the body. Dr Chen found at least 14 and possibly 16 in her examination. Asymmetric distribution was allowed for in the criterion for diagnosis, which required 11 points.

Dr Dowda

115. A report dated 26 January 2001 of Dr Dowda, a consultant occupational physician, to Ms Robertson's Department was tendered in evidence (Exhibit R8) but no oral evidence was required from Dr Dowda.

116. Dr Dowda noted that various rheumatological studies had not revealed any abnormality that would suggest a chronic rheumatological or inflammatory condition. Ms Robertson's present symptoms were multiple, with tenderness in a number of specified areas. On examination there were limited ranges of movement of the shoulders, particularly on the right side. Movement of the right scapula produced clicking and grating. There was no allodynia.

117. Dr Dowda diagnosed a regional pain syndrome affecting the neck, shoulders and upper limbs. This was a chronic problem that had persisted since 1995. He described Ms Robertson as "very focussed on pain". This was not to say that she did not in fact experience these discomforts as there was clinical evidence for some specific conditions. The prognosis at five years into the condition was very poor.

118. Whether Ms Robertson was able to work full-time or not was a moot point. With suitable duties such as avoiding keyboard work she should be able to build up to full-time work. However there were factors that might adversely affect an attempted increase in work activity. Dr Dowda therefore remained guarded if not pessimistic concerning the prognosis for her return to her full normal duties.

119. Her current treatment regime was self-managed, which was appropriate. The only other intervention that might be suitable was formal pain management. The restrictions suggested by Dr Kwan were reasonable.

Consideration of Issues and Findings

"Cease liability/effects" decisions

120. As I have said before, in many "cease liability" or "cease effect" decisions under the Act there appears to be a misunderstanding of the nature and effect of the determination that is made and of the statutory provisions relied on. In Re Carson and Telstra Corporation (2001) 33 AAR 351 Deputy President Estcourt stated

"49. It would only be a rare case where a reconsideration of the substantive determination under s.14 that Comcare was liable to pay compensation in accordance with the Act would be warranted. Such a case might arise, for example, if it was subsequently discovered that the injury had never in fact occurred or that the person claiming was never in fact an employee.

50. In such a case a reconsideration of the s.14 determination under s.62 resulting in a revocation would surely carry with it the result that no future claims in respect of that incident could properly be made, but in other cases, the revocation of a determination under relevant sections would not have the effect of preventing altogether further or other claims for compensation.

...

55. Telstra by its determination of 21 February 1995 was not, properly understood, denying those findings implicit in the original determination, it was merely determining that, on the available medical evidence, it was no longer liable for payment of medical expenses or incapacity payments.

56. That is to say, the effect of the determination that "liability in respect of this injury ceased on and from 5 February 1995" was not a decision to "cease liability" altogether or to "cease liability" under s.14, but rather a purported determination to cease the payment of compensation under s.16 and s.19 of the Act.

...

58. The conclusion I have reached, namely, that at its highest, Telstra's determination only ceased payments of compensation under s.16 and s.19 of the Act and did not effectively revoke the earlier determination to accept liability under s.14, thereby preventing further claims for compensation being made at a later time, is also consistent with the reasoning of the Full Court in Plumb v Comcare (1992) 39 FCR 236."

121. Implicit support for this approach is found in Lees v Comcare (1999) 29 AAR 350; 56 ALD 84, especially at [34] upon which Deputy President Estcourt relies. I agree with and adopt the views of Deputy President Estcourt.

122. In these proceedings the fourth matter is a cease liability decision.

The burden of persuasion

123. It is neither particularly apt nor appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the "burden of persuasion" in these matters.

124. First, in relation to claims to establish liability for an injury or incapacity flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the incapacity and that they were work related. A succinct statement of this is found in Comcare v Nichols [1999] FCA 209 where Justice Heerey said at [23]

"However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element."

125. Secondly, where claims are made for household services or alterations to one's residence a similar obligation lies on the Tribunal to be satisfied on the balance of probabilities that the services or alterations are reasonably required in the circumstances.

126. Thirdly, where the relevant reviewable decision is one "ceasing liability" the authorities refer to an obligation on the Tribunal to be satisfied on the balance of probabilities that the particular condition has ceased. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525 Justice O'Connor and Mr Barbour spoke of an obligation to produce material supporting a change in circumstances

"In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances."

127. Justice Jenkinson in Commonwealth v Borg (1991) 20 AAR 299n at 307 put it in these terms

"I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist."

128. In Comcare v Nichols Justice Heerey said at [22]

"In the present case, Mrs Nichols was receiving compensation in respect of an injury (RSI) which had been found in 1985 to result in incapacity for work. Comcare contended in 1996 that she no longer suffered from RSI. Comcare therefore had to establish this fact. Perhaps more accurately, it was the Tribunal, as an administrative decision-maker, which had to satisfy itself that this was the case. It was so satisfied."

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

From what condition does Ms Robertson suffer?

130. Ms Robertson gave evidence that in January 1995 she commenced acting in a more senior position using the workstation of the officer who normally occupied this position. As a consequence she injured her right shoulder, forearm and thumb. In March 1995 she claimed compensation and Comcare subsequently accepted liability. Ms Robertson said that she suffered further aggravations of her condition from computer based work or during busy periods. However it was the same injury throughout, an injury from which she continued to suffer at the time of the hearing.

131. The medical evidence on her condition was the following

* Dr Kwan, Ms Robertson's general practitioner, initially diagnosed a musculo- ligamentous strain of the right shoulder, flexor tendonitis right forearm and right thumb from occupational overuse. He later revised this to occupational cervical brachial disorder or regional pain syndrome

* Professor Sambrook found a pain syndrome from occupational overuse

* Dr Champion said that Ms Robertson had a chronic regional pain syndrome, a predominantly right-sided cervicothoracic spinal pain syndrome with shoulder girdle and upper arm disorder

* Dr Eaton said that Ms Robertson suffered from a chronic neuropathic regional pain syndrome involving the cervico-thoraco-brachial regions, particularly on the right side

* Dr Carr found several separate conditions - postural pain from her thoracic kyphosis and structural abnormality in her thoracic spine, dry crepitus in the scapula, and a regional pain syndrome in the upper limbs

* In Dr Brook's view Ms Robertson's disability was related to cervicobrachial pain syndrome with symptoms dominantly on the right

* Dr Dowda diagnosed a regional pain syndrome affecting the neck, shoulder and upper limbs, which had been a chronic problem existing since 1995

* Dr Stevenson was unable to make any musculo-skeletal or neurological diagnosis but found a regional pain syndrome or regional fibromyalgia

* Dr McGill also thought that the appropriate diagnosis was fibromyalgia

* Dr Chen considered that Ms Robertson initially had an episode of myofascial pain in the right shoulder girdle, associated with postural strain of the shoulder girdles. She currently had an underlying constitutional fibromyalgia syndrome.

132. Professor Sambrook and Doctors Champion, Eaton, Carr and Brook, specialist practitioners in this area, all rejected a formal diagnosis of fibromyalgia. Such a formal diagnosis required a number of localised discreet "trigger points" and usually was accompanied by fatigue and a poor sleep pattern. In their view Ms Robertson did not show these trigger points, nor did she suffer from sleep disturbance.

133. Dr McGill on the other hand was satisfied with his diagnosis of fibromyalgia as in the compensation setting the tenderness was more regionalised due to a person having a mental focus on that particular area. This could be contrasted with non-compensation cases where tenderness was usually symmetrical.

134. Dr Chen found at least 14 tender points throughout Ms Robertson's body but no report of sleep disturbance. However, she expected that there would be sleep problems when there was a young child.

135. When questioned on fibromyalgia Dr Stevenson accepted that Ms Robertson did not meet the criteria for a formal diagnosis, but suggested the term "regional fibromyalgia" was a loose term that could be used to describe her condition.

136. Mr Clark for Comcare sought to call into question the diagnosis of a regional pain syndrome by Ms Robertson's doctors, because of what he described as the unreliability of Ms Robertson as historian of her medical history. Ms Robertson was cross-examined on her prior medical history and specifically on the accuracy of that history given to various doctors. Furthermore several other attempts were made in cross-examination of Ms Robertson to attack her credibility as a witness.

137. In my view any inadequacy in the history Ms Robertson relayed to her medical practitioners is not of such significance that it detracts from the evidence given by those practitioners. Indeed when cross-examined by Mr Clark for Comcare these medical practitioners expressed the same view. None would have changed their diagnosis.

138. Ms Robertson presented her evidence in an open forthright manner. Although she is clearly determined and strong willed I believe that she was honest. To the extent that there may have been inconsistencies in her evidence or deficiencies in her recounting of her medical history to the doctors, I am satisfied that they were understandable and that she provided acceptable explanations. Her evidence was generally cogent and consistent, despite being strongly tested in cross-examination.

139. One particular matter which Mr Clark for Comcare emphasised as going to Ms Robertson's credibility was her allegation that she had asked Ms Byrne about her entitlements for compensation on at least two occasions and was told she was not entitled to worker's compensation because she had been taking leave without pay. Ms Byrne denied these allegations and said that she had never advised Ms Robertson that she could not apply for compensation leave. She had also never said anything that could lead Ms Robertson to that belief. Mr Clark submitted that Ms Robertson was a person who had exposure to worker's compensation issues having made a successful claim in the past. She quite clearly was a person who knew her rights and was prepared to assert those rights. There was no scope for any misunderstanding and Ms Byrne's evidence should be accepted and the evidence of Ms Robertson rejected.

140. I find myself in a quandary on this matter. Both Ms Robertson and Ms Byrne were adamant in their opposing views. I found both to be honest and credible witnesses. In my view the most likely explanation is that there was some misunderstanding between Ms Robertson and Ms Byrne.

141. However Ms Byrne's evidence that notwithstanding her position as Ms Robertson's case manager she did not regard it as her role to suggest compensation leave as one option for Ms Robertson was most disquieting. I would have thought it was a central part of her responsibilities and that failure to do so reflected a lack of due care and diligence on her part.

142. Furthermore, I reject Mr Clark's broader attack on Ms Robertson's credibility.

143. On all the evidence available to me I am satisfied on the balance of probabilities that Ms Robertson currently suffers from a chronic regional pain syndrome. This is the view of the majority of the specialists, including her treating practitioners, and is consistent with the accepted condition described by Professor Sambrook as a musculo-ligamentous strain and flexor tendonitis. I reject the view of those doctors who diagnosed Ms Robertson's condition as fibromyalgia. Ms Robertson's condition did not satisfy the criteria for fibromyalgia with only Dr Chen finding the required number of tender points and no doctor noting any sleep disturbance. Furthermore the specialists who diagnosed fibromyalgia had each only seen Ms Robertson on one occasion, in contrast to the ongoing contact between Ms Robertson and her treating practitioners.

144. The evidence also satisfies me that Ms Robertson's regional pain syndrome has been ongoing and continuous since her injury in early 1995 which was accepted by Comcare. Ms Robertson still suffers from it today.

Is Ms Robertson's condition work related?

145. While all the medical practitioners accept that Ms Robertson suffers from a condition, the majority pointing to regional pain syndrome but Comcare's doctors suggesting fibromyalgia, the real dispute in this matter is whether that condition arises from Ms Robertson's employment or is constitutional in nature. On the one hand

* Dr Kwan was of the view that Ms Robertson's condition was caused and aggravated by physical strain and overuse from work activities and working at unergonomic workstations between 1995 and 2000

* Professor Sambrook considered that on the balance of probabilities Ms Robertson's condition had been contributed to materially by her employment

* Dr Champion said that her condition was a work-related disorder that occurred in the course of work activities and that no other important cause or influence had been apparent

* in Dr Eaton's view ongoing workstation deficiencies over the years had contributed to the maintenance of Ms Robertson's disorder which had been precipitated originally by work related factors

* Dr Carr said that on the balance of probabilities Ms Robertson's pain syndrome was materially contributed to by her employment workstation in 1995. However he did not think that her workstation from 1997 had caused a material aggravation as the condition was already there

* Dr Brook found that the pain syndrome arose in a workplace setting in which there was an epidemiological association between the type of work performed and the development of the syndrome.

146. On the other hand

* Dr Stevenson was unable to identify a material cause or contribution from Ms Robertson's employment. Any work aggravation would have been minor, transient or resolved

* Dr McGill did not think that the condition had been caused by the physical demands of Ms Robertson's employment, although stress from family and child caring commitments may have contributed. There was no non work-related physical factor contributing to her symptoms and if there had been any work-related condition previously it had ceased

* Dr Chen stated that the symptoms around February 1995 and for about 3 months thereafter were probably related to Ms Robertson's work situation. Thereafter there were further episodes of pain related to various work and non work situations, but her current condition was no longer related to either the work situation of February 1995 or May 1999. Ms Robertson's current condition was an underlying constitutional fibromyalgia.

147. Again there is a clear conflict between Ms Robertson's doctors and those called by Comcare. On the evidence before me I am satisfied that on the balance of probabilities Ms Robertson's regional pain syndrome is work-related

* in early 1995 whilst working at a colleague's work station Ms Robertson suffered her initial injury

* that injury has been aggravated significantly on a number of occasions in the work situation since the original injury in 1995

* the evidence outlined above of Ms Robertson's doctors including her treating practitioners all accept a work relationship

* for reasons given previously I prefer the evidence of these medical practitioners to that of Drs Stevenson, McGill and Chen.

148. I therefore find that the regional pain syndrome which Ms Robertson continues to suffer today was work-related in its origin in 1995 and continues to be a work-caused injury for the purposes of the Act.

Has Ms Robertson's compensable condition ceased?

149. One of the reviewable decisions under consideration (A2001/364) ceased Comcare's liability to pay compensation to Ms Robertson in respect of her compensable condition. The independent review officer made this determination "pursuant to s14 of the Act". This is of course inconsistent with the decision in Carson as the independent review officer made no findings that the conditions for satisfying section 14 had not been met at the time liability was accepted by Comcare.

150. On the evidence before me I am comfortably satisfied that Ms Robertson continues to suffer today from her compensable condition, which I have found to be a regional pain syndrome (see paragraph 143).

Has Ms Robertson been incapacitated as a result of her compensable condition?

151. A number of questions fall under this broad heading

* whether Ms Robertson was incapacitated following the original injury in 1995

* whether she was incapacitated on the 130 days between 6 May 1998 and 15 October 1999 for which she claimed incapacity payments

* whether she was incapacitated on 13 March 2000 when Comcare ceased incapacity payments

* whether she was incapacitated on 20 June 2001 when Comcare ceased liability for her condition

* whether she is incapacitated today.

152. Section 19 of the Act on compensation for injuries resulting in incapacity relevantly provides

"(1) This section applies to an employee who is incapacitated for work as a result of an injury, ...."

153. Section 4(9) provides

"A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened."

154. It is clear from the evidence before the Tribunal, not least the Statement of Agreed Facts (Exhibit R1), that significant restrictions were placed on Ms Robertson's work capacity following the injury suffered in early 1995. Indeed although she continued to work full-time from the period of the initial injury until the end of 1996, other than during recreation and maternity/parental leave, her duties were modified taking into account her injury.

155. Since the beginning of 1997 Ms Robertson has never returned to full-time work. There is no dispute that initially this was for the purpose of looking after her infant son, but there is some dispute as to whether this continued to be the rationale for her working part-time later on. However, the T-documents are replete with medical certificates from Dr Kwan, Ms Robertson's general practitioner, covering this period and imposing restrictions on the duties she could undertake. In some Dr Kwan certified her as totally incapacitated for work, in others he placed more limited restrictions on her hours and activities.

156. Other medical evidence included the following

* Professor Sambrook considered Ms Robertson was fit for work on a part-time basis only, somewhere between 15 and 20 hours per weeks, with restrictions placed on repetitive manual activities

* Dr Champion said that, bearing in mind the range of duties Ms Robertson was performing at February 2001, working gradually and progressively to 15 hours per week was within her range of capability. It was possible she may eventually achieve full-time employment but he could not be confident of that

* Dr Eaton endorsed Dr Kwan's recommendations that Ms Robertson work reduced hours because of her condition. He hoped that eventually Ms Robertson would be able to increase her hours, however any increase would have to be gradual. The effects of her disorder had caused considerable disability and a reduction in work capacity

* In Dr Carr's view Ms Robertson's symptoms had limited her ability to work and Dr Kwan's restrictions on work had probably been reasonably appropriate. Her condition would probably never really stabilise

* Dr Brook expressed the opinion that Ms Robertson's condition had been continuous since early 1995 and that it was unlikely that she had the capacity for full-time productive employment

* Dr Kwan said that it was likely that Ms Robertson's condition was permanent and she would not be able to return to her previous duties. She may be able to undertake full-time work in the future, but subject to permanent restrictions

* Dr Stevenson found that Ms Robertson's condition did not necessitate any restrictions on her capacity for employment

* Ms Robertson was fit to perform her full normal duties on a full-time basis according to Dr McGill

* Dr Chen considered that Ms Robertson was capable of working full-time doing modified duties with restricted periods of keying. Ms Robertson was not currently fit for her pre-injury employment in its previous format. However, she may be able to resume most of her previous work if a voice-activated software computer system could reduce keyboard work by half

* In Dr Dowda's assessment, whether Ms Robertson was able to work full-time or not was a moot point. Avoiding the keyboard she should be able to build up to full-time work, although Dr Dowda remained guarded, if not pessimistic, about her return to full normal duties. In this context he said that the restrictions on work practices that Dr Kwan had suggested were reasonable

* Dr Boyapati (Exhibit A12), the HSA medical adviser, agreed that the restrictions on work practices set out by Dr Kwan were reasonable and Ms Robertson could not effectively return to full-time duties while following those restrictions. Her prognosis was uncertain and currently she was only capable of part-time work

* Ms Kellett (Exhibit A2), Ms Robertson's physiotherapist, expressed reservations about suggestions that Ms Robertson return to full-time normal duties by February 2000.

157. For reasons given earlier which I will not repeat here, I reject the evidence of Drs Stevenson and McGill on this point and prefer that of the other medical practitioners. In this respect Dr Chen's advice provides some support to those other practitioners.

158. I note also the evidence of Mrs Robertson on her changing capacity from 1995 to the present to undertake the duties in which she had been previously engaged. I am also conscious that she accepted that at various times she was unavailable for work for reasons unrelated to her compensable condition.

159. Bearing in mind the decision of Justice Merkel in Comcare v Rowe (2002) 35 AAR 410 I make the following findings

* Ms Robertson was injured for the purposes of the Act in early 1995 (see paragraphs 26 and 144)

* immediately before the injury she was engaged in policy work involving keyboard activities

* one aspect of the "level" of this work "in the sense of its characteristics including its degree of difficulty" (see Re Smith and Comcare [2002] AATA 249 at [76] - [85]) was a significant keyboard component

* since the injury Ms Robertson has been unable to engage in work at that same level.

160. Therefore having considered all the evidence, including that of Ms Robertson herself, I am more than satisfied that at the relevant times set out in paragraph 151 Ms Robertson was incapacitated for work as envisaged by section 4(9) of the Act. During some of these periods Ms Robertson was totally incapacitated for work whilst on other occasions only partially incapacitated.

161. I therefore find that

* Ms Robertson was incapacitated for work as a result of the original injury in early 1995

* Ms Robertson was incapacitated during the periods for which she sought incapacity payments from May 1998 to October 1999

* Ms Robertson was incapacitated for work at 13 March 2000

* Ms Robertson was incapacitated for work at 20 June 2001

* Ms Robertson remains incapacitated for work today.

162. I am not in a position to make determinations on the precise payments to which Ms Robertson is entitled under section 19 of the Act on the evidence before me. I therefore propose to remit this matter to Comcare for its determination having regard to the findings I have made.

Is Ms Robertson entitled to compensation for a house clean and gardening assistance?

163. The 12 January 2001 reviewable decision (A2001/44) denied liability to pay compensation for a one off house clean and for gardening assistance.

164. Section 29 of the Act relevantly provides

"(1) ... [W]here, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.

(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:

(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;

(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;

(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;

(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;

(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b)."

Household services in relation to an employee are defined in section 4(1) as

"[S]ervices of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household."

165. In her report of 3 March 2000 (Set 3 T4) Ms Joanne Denham, an occupational therapist, noted that Ms Robertson had modified her activities, equipment needs, and standards in the home to accommodate her condition. She was managing daily home tasks by limiting those tasks and avoiding aggravating activities. However, there was some need for more thorough cleaning from time to time as her husband was not available for this. She continued that it may be of assistance to provide some short-term help in the home and the garden. Ms Denham recommended that Ms Robertson have assistance in the home for a three-month period and be provided with a one off thorough clean. She also recommended assistance in the garden for a period of three months. This was for mowing, weeding and trimming and two hours per fortnight was required. Comcare accepted the recommendation for household services but not for a one off clean and gardening expenses.

166. Ms Robertson gave evidence that the suggested gardening assistance was to relieve her husband of household tasks and enable him to provide more help inside the home.

167. Mr Clark did not touch on this issue in his final submissions, but in his opening submission he had conceded that if Ms Robertson suffered from a compensable condition at the relevant time "she would probably be entitled to succeed in respect of the gardening services and the one off clean".

168. Having regard in particular to the evidence before me of Ms Robertson and Ms Denham and noting the matters which I must consider as set out in section 29(2), I am satisfied on the balance of probabilities that provision of the one off clean and gardening services is reasonable. They are household services within the terms of section 4(1) and Ms Robertson reasonably requires them for the purposes of section 29(1) of the Act. I find accordingly.

Is Ms Robertson entitled to the cost of motorised garage doors?

169. On 28 August 2001 an independent review officer determined that Comcare was not liable to pay compensation pursuant to section 39 of the Act for motorised garage doors in respect of Ms Robertson's compensable condition. This is the decision under review in matter A2001/363.

170. Section 39 of the Act relevantly provides

"(1) Where:

(a) an employee suffers an injury resulting in an impairment; and

(b) the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;

the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:

(c) any alteration of the employee's place of residence or place of work;

...

(e) any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;

being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.

(2) The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:

(a) the likely period during which the alteration, modification, aid or appliance will be required;

(b) any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work;

(c) any difficulties faced by the employee in gaining access to, driving or enjoying freedom and safety of movement in, a vehicle used by the employee;

..."

171. The word "impairment" is defined in subsection 4(1) as

"[T]he loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function."

And "rehabilitation program" is defined as including

"[M]edical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training."

172. In her report of 3 March 2000 (Set 3 T4) Ms Denham, an occupational therapist, identified a problem in that Ms Robertson was unable to garage her car because she could not operate the roller doors. She was exploring options for this in terms of replacement or the need for motorised doors. Ms Denham recommended that further investigation be undertaken into solutions for the roller door problem. She suggested that the door might need replacing and that it was likely that a motorised door was the best way to allow Ms Robertson to undertake this task without aggravation. Ms Denham noted that this was particularly necessary as Ms Robertson's husband was frequently away and this presented problems for Ms Robertson in garaging her car.

173. Ms Robertson's evidence was that the garage doors had been replaced with motorised doors as her husband would often travel and therefore would not be able to open and close the doors for her. The amount of his travel varied although he was not travelling at the time of the hearing.

174. Mr Robertson said that the replacement of the doors occurred in May or June 2000 when power operated doors were installed. This was cheaper than adding a motor to the existing doors which his wife had only been able to open and close with difficulty and pain. At the time of the home assessment he had been travelling to Sydney frequently and was away from home about two nights a week. In his current job he travelled less than once a month.

175. Mr Clark's only submission in relation to the garage doors was that he was uncertain whether they fell within the purview of section 39. In his view this was a minor issue which was subservient to the broader issue.

176. There are a number of elements on which I must be satisfied on this matter

* whether Ms Robertson had suffered an injury resulting in an impairment

* whether she had undertaken or was undertaking a rehabilitation program

* whether the payment of the costs was reasonable

* whether the installation of the garage doors amounted to an alteration to Ms Robertson's place of residence or an aid or appliance

* whether they were reasonably required, having regard to the nature of Ms Robertson's impairment and any requirements of the rehabilitation program

I am also required to have regard to certain matters set out in section 39(2) of the Act.

177. Taking into account all the relevant evidence before me, I am satisfied that

* Ms Robertson suffered an injury resulting in an impairment as defined in the Act, specifically damage or malfunction to her right shoulder and upper limb

* at the time the recommendation was made by the occupational therapist and at the time of installation of the doors Ms Robertson was undertaking a rehabilitation program as defined in section 4(1) of the Act. In particular I refer to the program of physiotherapy services set out in Exhibit A2 provided by Ms Jennifer Kellett and note physiotherapy sessions and consultations in March, April, May, June, July, August, etc. of 2000

* the installation of the motorised garage doors amounted to an alteration to Ms Robertson's place of residence

* having regard to the factors set out in section 39(2), bearing in mind in particular the evidence of Ms Denham and Mr and Mrs Robertson, and noting that there was no contradicting evidence, the alterations encompassed by the installation of the doors were reasonably required by Ms Robertson because of the nature of her impairment.

Conclusions

178. In summary, I conclude

* in early 1995 Ms Robertson injured her right shoulder, forearm and thumb

* as a consequence Ms Robertson currently suffers from a chronic regional pain syndrome

* Ms Robertson's regional pain syndrome has been ongoing and continuous since early 1995

* the regional pain syndrome was work-related in its origin in 1995 and continues to be a work-caused injury for the purposes of the Act

* this condition has not ceased

* Ms Robertson was incapacitated for work as a result of the original injury in early 1995

* Ms Robertson was incapacitated during the periods for which she sought incapacity payments from May 1998 to October 1999

* Ms Robertson was incapacitated for work at 13 March 2000

* Ms Robertson was incapacitated for work at 20 June 2001

* Ms Robertson remains incapacitated for work today

* Ms Robertson is entitled to compensation for a house clean and gardening assistance

* Ms Robertson is entitled to the cost of motorised garage doors.

Decision

179. The reviewable decisions in each of these matters will be set aside. In matter A2001/44 the Tribunal decides in substitution therefor that Ms Robertson is entitled to compensation for a house clean and gardening assistance. In matter A2001/363 the Tribunal decides in substitution therefor that Ms Robertson is entitled to the cost of motorised garage doors.

180. Matters A2000/345, A2001/364 and A2001/365 are remitted for reconsideration in accordance with the direction that Comcare give effect to the findings of the Tribunal as set out in these statements of reasons and summarised in paragraph 178. The Tribunal orders Comcare to pay the Applicant's costs in these proceedings as agreed or taxed.

I certify that the 180 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray

Signed: .....................................................................................

Associate

Dates of Hearing 19-22 February 2002

Date of last written submission 27 March 2002

Date of Decision 6 December 2002

Representative for the Applicant Mr Stuart Robertson

Counsel for the Respondent Mr Charles Clark

Solicitor for the Respondent Mr Stuart Marris, Sparke Helmore