Cook and Comcare [2003] AATA 16 (10 January 2003)

Last Updated: 29 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 16

ADMINISTRATIVE APPEALS TRIBUNAL ) N2001/280

) Nos N2001/527

GENERAL ADMINISTRATIVE DIVISION	) N2001/1762
	Re	Elizabeth Cook

Applicant

And

Comcare

Respondent

DECISION

Tribunal

Ms S M Bullock, Senior Member Dr J D Campbell, Member

Date 10 January 2003

Place Sydney

Decision

The decisions under review are set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that: i) The Applicant suffers from an injury pursuant to section 4 of the Safety, Rehabilitation and Compensation Act 1988 in the form of widespread regional chronic pain disorder and secondary depression referrable to an injury sustained on 12 March 1992. ii) The Respondent is liable, pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988, to pay for reasonable medical expenses for the widespread regional chronic pain disorder and depression, including a pain management programme. iii) The Respondent is liable to pay Mrs Cook compensation for permanent impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1998 for a 20 per cent whole person impairment for her pain disorder referrable to her hip and low back condition. iv) The Respondent is liable to pay compensation to Mrs Cook pursuant to section 27 of the Safety, Rehabilitation and Compensation Act 1988 for non-economic loss. v) The Respondent is liable to pay Mrs Cook's reasonable costs associated with the applications for review in matters N2001/280, N2001/527 and N2001/1762.

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

Ms S M Bullock

Presiding Member

CATCHWORDS

WORKERS COMPENSATION - Low Back and Hip Injury - Pain Disorder - Fibromyalgia - Incapacity - Medical Expenses - Impairment - Non-Economic Loss

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 24, 27

AUTHORITIES

Comcare v Amorebieta (1996) 66 FCR 83

Re Whelan and Department of Defence (1997) 47 ALD 383

Re Jeremic and Comcare (AAT 5975, 20 June 1990)

Re Labi and Comcare (AAT 13560, 21 December 1998)

Re Gray and Commonwealth Banking Corporation (1989) 18 ALD 799; (AAT 5168, 21 June 1989)

Re Elliott and Comcare [1999] AATA 636

Whittaker v Comcare (1998) 86 FCR 532

Re Nuss and Comcare [2002] AATA 170

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403

REASONS FOR DECISION

10 January 2003

Ms S M Bullock, Senior Member Dr J D Campbell, Member

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mrs Elizabeth Cook, of a number of reviewable decisions:

i) N2001/280 - Reviewable decision dated 19 February 2001 (T74, N2001/280, Bundle 2) which affirmed a determination dated 19 October 2000 (T44, N2001/280, Bundle 2) which denied liability for permanent impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988;

ii) N2001/527 - Reviewable decision dated 19 April 2001 (T5, N2001/527, Bundle 3) which affirmed a determination dated 27 February 2001 (T75, N2001/527, Bundle 2) which denied liability for a pain management program;

iii) N2001/1762 - Reviewable decision dated 9 November 2001 (T24, N2001/1762, Bundle 1) which affirmed a determination dated 4 May 2001 (T6, N2001/1762, Bundle 1) which denied liability for fibromyalgia and depression.

2. A Hearing was held before the Tribunal in Sydney on 23 and 24 April 2002. Mrs Cook was self-represented. The Respondent, Comcare, was represented by Ms C Adamson of Counsel. Documents were taken into evidence, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents": T1-T24, N2001/1762, Bundle 1; T1-T75, N2001/280,Bundle 2; T1-T5, N2001/527, Bundle 3). Also taken into evidence are the following exhibits:

Exhibit No	Description	Date
A1(a)	Report from Dr G D Champion, Conjoint Associate Professor of Medicine, University of New South Wales and attached Curriculum Vitae prepared in March 2001	15 April 2002
A1(b)	Record of two emails from Mrs E Cook to Dr Champion	3 April 2002 10 April 2002
A2	Clinical notes of Ms M Clitheroe, Physiotherapist	Various
A3	Clinical notes of Dr M Dowsett, General Practitioner	Various
A4	Photograph of Mrs E Cook	July 1992
A5	Photograph of Mrs E Cook	May 1992
A6	Statement by Mrs E Cook, Applicant	Undated
A7	Article: "Large-Fiber Mechanoreceptors Contribute to Muscle Soreness After Eccentric Exercise" from Journal of Pain, (August 2001) Vol 2, No 4, page 209 only
A8	Article : "Muscle Hyperalgesia in Postexercise Muscle Soreness Assessed by Single and Repetitive Ultrasound Stimuli" from Journal of Pain, (Summer 2000) Vol 1, No 2, page 111 only
A9	Editorial, "The problem of fibromyalgia" Muscle and Nerve, (21 February 2002) Vol 25, Issue 4, pp 473-476
A10	Two Articles: (1)"Widespread body pain and mortality:Diagnosing fibromyalgia stops doctors from thinking" British Medical Journal, Vol 324 (7332) 2 February 2002, page 300 (2) "Does Fibromyalgia Actually Exist Or Is It a Creation of Medical Writing?" Proceedings of 23rd Annual Scientific Meeting of the Australian Pain Society, pp49-50
A11	"Evidence for Abnormal Nociception in Fibromyalgia and Repetitive Strain Injury" Cohen et.al, Journal of Musculoskeletal Pain (1995) Vol 3, No 2, pp 49-57
R1	Report of Professor P N Sambrook, Professor of Rheumatology, University of Sydney	28 November 2000
R2	CT Scan Report by Dr A K C Li, Radiologist	12 November 1992
R3	Article: "Effects of Aerobic Exercise Versus Stress Management Treatment in Fibromyalgia", Scandinavian Journal of Rheumatology (1996) 25, page 77 only
R4	Article: "How should we manage fibromyalgia? ", Annals of the Rheumatic Diseases (1999) 58, pp325-326
R5	Article: "The Association Between Tender Points, Psychological Distress and Adverse Childhood Experiences" Arthritis and Rheumatism (July 1999), pp1397-1403

ISSUES

3. The issues in this matter are:

* Whether or not the Applicant has a work-related injury as defined in section 4 of the Safety, Rehabilitation and Compensation Act 1988 for which the Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation Compensation Act 1988.

* Whether or not the Respondent is liable to pay compensation for Mrs Cook's reasonable medical expenses including a pain management treatment programme pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988.

* Whether or not the Respondent is liable to pay compensation to Mrs Cook for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988.

LEGISLATION

4. A determination in this matter requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

5. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of injury contained within subsection 4(1) of the Act which states:

"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."

6. Section 14 of the Act deals with compensation for injuries and as relevant states:

"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.

(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."

7. Section 16 of the Act deals with compensation for medical and other expenses and as relevant states:

"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.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.

(4) An amount of compensation payable by Comcare under subsection (1) is payable:

(a) to, or in accordance with the directions of, the employee;

(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost--to that other person; or

(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation--to the person to whom that cost is payable.

(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person

...."

8. Section 24 of the Act deals with compensation for injuries resulting in permanent impairment and states:

"24 Compensation for injuries resulting in permanent impairment

(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

..."

9. Section 27 of the Act deals with compensation for non-economic loss and states as relevant:

"27 Compensation for non-economic loss

(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

..."

EVIDENCE OF MRS ELIZABETH COOK

10. Mrs Cook was born on 19 April 1957. She was divorced in 1978 and remarried in 1984. Mrs Cook has two sons aged 25 and 28 years from her first marriage.

11. Currently, Mrs Cook is employed at the Australian Tax Office ("ATO") as an Executive Level 1 in the Policy Section where she has worked for approximately two years. Mrs Cook has been employed for approximately 21 years at the ATO, commencing as a base grade clerk. Mrs Cook attended secondary school until Form 4 (Year 10) and then undertook a Commerce Accounting Procedure Certificate Course at TAFE completed in 1981 with two years being undertaken full-time and one year part-time study. Mrs Cook has undertaken a number of in-service courses through the ATO training to be an auditor and assessor.

12. Mrs Cook informed the Tribunal that in March 1992, she was in a similar position to her current position, but working in the Appeals area. Mrs Cook had joined a gymnasium linked to her work in July 1991. The ATO encouraged its employees to attend the gym. Mrs Cook joined the gym sometime after a health fright she had with palpitations. At that time, she was medically advised to become fitter, hence her attendance at the gym. Initially, Mrs Cook had attended the gym approximately three times per week and by March 1992 was attending five times per week. As Mrs Cook progressed in her gym activity, she lost weight and gained other benefits. Her local General Practitioner, Dr M Dowsett, who had cared for her since 1997, was monitoring her progress, including her weight.

13. On 12 March 1992, Mrs Cook attended an aerobic class, following which she experienced pain in her lower back and right hip. After feeling this pain, Mrs Cook recalled that she had a hot shower and returned to work, thinking that she had overdone her exercise programme on that day and that it would settle. After work, the pain had not settled and indeed continued until she felt it wise to consult Dr Dowsett in April 1992. Dr Dowsett prescribed anti-inflammatory medication and arranged for an x-ray. Mrs Cook took the medications prescribed but did not follow through with an x-ray because she hoped that the condition would improve. Mrs Cook stated that she did not claim compensation initially because she had hoped that the symptoms would resolve. Dr Dowsett had also arranged physiotherapy. The symptoms were still present in July 1992 and Mrs Cook consulted an Osteopath, Mr W Johnston. Mr Johnston's treatment, including the provision of massage and infra-red heat, did not provide much relief. Mrs Cook attended four to six physiotherapy sessions which on occasions did assist her symptoms, but overall, she concluded that phsiotherapy was not of much assistance to her. By August or September 1992, Mrs Cook was concerned whether or not her back or hip condition would ever improve. A CT Scan in October 1992 showed disc bulges, she recalled. X-rays taken at that time indicated a normal lumbar spine and right hip (T13, n2001/280, Bundle 2, p20).

14. Mrs Cook was referred to an Occupational Health and Safety Rehabilitation Officer who recommended that she continue with physiotherapy sessions with another physiotherapist. Ms M Clitheroe provided physiotherapy in December 1992, following which Mrs Cook was referred to Dr A Ganora, Rehabilitation Specialist. These latter physiotherapy sessions treated Mrs Cook's lower back and right hip pain and afforded Mrs Cook some relief for about two or three weeks, she stated. The physiotherapist saw the hip and back conditions as separate and different, Mrs Cook explained. The pain in the lower back continued virtually unchanged. In May 1993 and August 1993, Mrs Cook consulted Dr P Johnson, Orthopaedic Surgeon, as Mrs Cook was still experiencing symptoms in her right hip and lower back.

15. In about June or July of 1993, Mrs Cook experienced pain in both shoulders, more particularly in the left shoulder. She described the pain as "tight pulling pain" sometimes a dull ache. The level of pain depended on the level of activity Mrs Cook was undertaking. Dr Johnson diagnosed the condition of conductive fibromyalgia. At that time, there was pain in her left and right shoulder, lower back, right hip and to a lesser extent in the left hip. Mrs Cook again consulted her general practitioner and he prescribed "Tegretol", to assist with pain relief. Mrs Cook is unable to take pain relief now other than "Paracetamol".. Mrs Cook informed the Tribunal that in about August or September 1993, Dr Johnson recommended that she once more have physiotherapy, but on this occasion for her left shoulder. Mrs Cook also had traction at that time which she stated helped.

16. Currently, Mrs Cook reports pain in the soft tissue of her body, particularly the top of her arms and her legs. These symptoms slowly occurred between September and November 1993, she estimated. Mrs Cook also noted that in mid 1993 she had some gynaecological problems resulting in surgery in 1994 and 1995. She also had hand surgery in 1997.

17. In relation to further attendance at the gym following the initial injury on 12 March 1992, Mrs Cook stated that she reduced her gym attendance after the incident but returned after a few months. She returned to the gym because she liked it. Furthermore, Mrs Cook was medically advised that attending the gym would not make her condition worse and in fact it could assist her. This was before she knew anything about fibromyalgia or pain disorders. Mrs Cook noted that in February 1995, she experienced pain in the left side of her neck. She continued however to build up her gym attendance gradually from one session per week to three sessions per week. Mrs Cook recalled that she ceased attending the gym in about 1997 when her membership ran out.

18. Mrs Cook was referred to a photograph taken of her in May 1992 when she won a novelty prize of a sock because she was "Member of the Month". Mrs Cook stated that she certainly did not look the fittest she has ever been in that photograph. The award was not for aptitude nor great success but was an encouragement award both for herself and other members. Mrs Cook stated that the Member of the Month award was for promotional purposes.

19. In terms of Mrs Cook's consultations with her General Practitioner, Dr Dowsett, she estimated that she would have seen him once every six weeks. The pain that she had reported on 21 March 1991 (Exhibit A3, p7), Dr Dowsett thought might have been pain related to her bile duct. She did not recall any particular stress at that time. Mrs Cook's clinical history also recorded that she noticed palpitations when she was hanging out the clothes. Mrs Cook explained that when stressed in the past, there would be an impact of such stress on her digestive system. For example, it was noted in Dr Dowsett's clinical notes for May 1998, that Mrs Cook's husband had left his job and that she was stressed as a result of this. Mrs Cook told the Tribunal that her husband suffers from agoraphobia and he does not leave the home often.

20. Dr Dowsett's clinical notes also record menstrual pain and cramps but Mrs Cook noted that she did not have any difficulty distinguishing that kind of pain with the pain she experienced from her right hip and low back condition. Mrs Cook also noted that she took "Gaviscon" for reflux and has also previously had a barium meal. Ms Cook believes that she has irritable bowel syndrome and adhesions.

21. Assessing Dr Dowsett's clinical notes, Mrs Cook agreed that there were a number of visits to her doctor but not regular reports of pain in the area affected by her gym injury in March 1992. For example, there was no complaint of pain on 13 July 1994. Mrs Cook stated that she did not agree with the Respondent's proposition that there was no pain present because it was not reported in the clinical notes. Mrs Cook told the Tribunal that just because she did not mention pain to Dr Dowsett, it did not mean that it was not present. A further notation in April 1992 indicates that there was severe right hip pain for weeks following aerobics.

22. Mrs Cook noted an incident report submitted on 7 August 1992 (T5, N2001/280, Bundle 2, p12) which recorded that Mrs Cook did not have a discrete gym injury on one particular occasion but that symptoms occurred over a period of time. She acknowledged that this form provided different evidence than that which she was providing to the Tribunal. Mrs Cook stated that when she wrote the incident report, it was what she thought to be the case at that time. As has now been revealed, her condition has worsened and she has been provided with different medical advice. Mrs Cook did not agree that she reconstructed events around her gym attendance to try and explain retrospectively what had occurred to her. Mrs Cook stated that she really did not know why Dr Dowsett did not record her problems with her back and right hip pain on a regular basis. She stated that Dr Dowsett's clinical notes did not record all their discussions nor when he provided repeat prescriptions. In April 1993, Dr Dowsett noted intermittent pain but that Mrs Cook was not sure of the origin of the pain although it could be from gym or gardening (Exhibit A3, p12).

23. Having initially claimed compensation, Mrs Cook stated that she stopped making claims because she was told by her treating doctors that her condition was arthritis and there was nothing more that could be done for her. She was also advised of this by her case manager at Comcare. Furthermore, Dr Dowsett had told her that the shoulder pain that she complained of was not linked to the March 1992 incident.

24. It was put to Mrs Cook that from a consideration of Dr Dowsett's notes, it was evident that she had had a number of traumas which could explain her claimed conditions, including a fall around 15 December 1993 (Exhibit A3, p13) with other conditions noted such as palpitations (Exhibit A3, p14), and menstrual problems. Mrs Cook noted that the pain in her shoulder, hip and back was not always reported by her because she believed that from previously obtained medical advice, nothing could be done and accordingly she did not see any use in reporting it. She acknowledged that such an answer could be considered to be "convenient", but reiterated that back in November 1993, she had been told that she had an arthritic condition. Mrs Cook noted that she was unable to take pain-killers as they upset her stomach and that often Dr Dowsett did not ask her whether she still had pain. "I just got on with life", she stated, which included her attending the gym because she was advised that such attendance would not worsen her condition. Furthermore, Mrs Cook noted that she would not have continued with the gym if it made her feel unwell or increased her pain.

25. Referred to further specific entries in Dr Dowsett's clinical notes of 26 April 1995 and 23 August 1995 (Exhibit A3, p17), Mrs Cook noted that she did not mention the pain because there seemed little use in doing so. However, in November 1995 (Exhibit A3, p18) shoulder pain was reported but there were no following complaints in November 1996. In early 1997, pain was noted to be severe after washing the car. Mrs Cook stated that she now does not undertake this activity as her son does it for her.

26. Mrs Cook told the Tribunal that she has experienced depression and treatment for this commencing at some point in 1993. She was prescribed medication for this condition and for pain. Mrs Cook consulted a psychiatrist to assist her to deal with her chronic pain. Mrs Cook believed that she ceased medication for depression in 1995 because she did not like relying on it. She was without medication for approximately three or four months when she decided, on medical advice, that she would recommence medication for depression. Mrs Cook recalled that in about 2001, she was prescribed with medication for anxiety because her doctor thought that her symptoms were related to an anxiety condition. Mrs Cook ceased consulting the psychiatrist because she saw no future in this. The cessation of psychiatric consultation was also precipitated by her then psychiatrist going on maternity leave. Mrs Cook believes that her depression is reactive to her pain.

27. Mrs Cook tries not to take time off work. There are occasions when lack of sleep makes her less sharp and she misses things in her work. Mrs Cook attempts to alternate her work duties to take account of her lack of concentration in addition to her pain. In performance management reviews, Mrs Cook receives positive feedback from her employer. She mostly meets deadlines but will on occasion miss a deadline. She noted that she can often make mistakes which she never used to make. Mrs Cook is of the view that she has changed as a person, losing her sense of humour and not having any tolerance which has affected both her work, family and social relationships.

28. There have been times in her life when Mrs Cook has been upset by other matters such as her husband's health, the death of her mother-in-law and being in a car accident. In relation to her husband's health, Mrs Cook noted that in approximately October 1998, Mr Cook had a type of "psychotic episode" and had to take time off work (Exhibit A3, p23). Mrs Cook did not accept that her husband's condition caused her own depression. Mrs Cook stated that she never suffered from depression until she began to suffer from chronic pain. Further injuries of more recent origin include a right knee problem in March 2000 (Exhibit A3, p25). Mrs Cook did not attribute this injury to the gym but to using a mattock in the garden. Another injury sustained by Mrs Cook related to a tennis elbow, which occurred in the context of painting small areas of the house, including the laundry and kitchen. Mrs Cook also has had a number of gynaecological operations, but believes that her main problem is the 1992 gym injury causing her initially pain in the low back and hip and later extending to her shoulders.. Mrs Cook noted that despite her medical history which indicates many problems, these often resolve and she is readily able to distinguish the pain, discomfort or symptoms of these other conditions as completely different to that associated with the injury she had in March 1992.

29. Mrs Cook explained to the Tribunal that she began conducting her own internet research over an 18 month period into the condition of fibromyalgia. This was in the context of her trying to understand why it was that she was still experiencing chronic pain after the 1992 injury. It was Dr P Johnson, Orthopaedic Surgeon, who had originally diagnosed her condition as fibromyalgia. Following her search of relevant websites and articles, Mrs Cook stated that she made the causative connection between her gym injury and fibromyalgia. Initially, she did not tell her employer of this or ask Dr Dowsett for a relevant medical certificate. She made a claim she believes in 1993. On a work colleague's recommendation, she had arranged for Dr Dowsett to refer her to Dr M Arnold, Consultant Rheumatologist. She had done this because she hoped that this would provide her with some new treatment strategies and regimes (T32, N2001/280, Bundle 2).

30. Mrs Cook stated that as a result of her research, she decided to make a claim for permanent impairment. She had spoken to Dr Dowsett about this (Exhibit A3, p26) following advice to do so by a Comcare officer. This officer also advised Mrs Cook to submit a claim for depression, which she did. While Mrs Cook acknowledged that she continued to be active - for example by painting, undertaking some gardening activities and going up ladders, she explained that she was trying to live her life as best she could. Furthermore, going to work for Mrs Cook took her mind off the pain and she was determined not to become stagnant. Mrs Cook continued to look for answers to her problems and hence her referral to other doctors including to Professor Sambrook. Mrs Cook wanted to find if other doctors agreed that her condition could have emanated from her gym attendance in March 1992.

31. Mrs Cook denied linking every pain she experienced to her gym injury. She accepted that she has many other unrelated injuries or symptoms. This should not deny, in her view, the fact that the injury to her back and right hip has resulted in a widespread pain disorder, possibly fibromyalgia. Whilst other health problems or issues have resolved, her condition emanating from the gym injury has not resolved and has, in Mrs Cook's view, developed into chronic pain.

32. Currently, Mrs Cook has difficulty with grades and steps and will not use stairs unless absolutely necessary. She stated that on stairs, she loses balance and uses a handrail. At work Mrs Cook uses a telephone handset because she has carpal tunnel syndrome. She prefers at work to walk and see people instead of using emails. Mrs Cook told the Tribunal that she does not wish to feel sorry for herself. She is able to drive a car but has changed from a manual transmission to automatic with power steering. This considerably assisted her shoulder pain and she is able to drive to work taking approximately five to ten minutes. Mrs Cook has a disabled driver's parking sticker which was applied for with medical information from Dr Dowsett. Mrs Cook denied that this disabled parking sticker was provided because she had an injury to her ankle, which she stated, was of short duration. Mrs Cook noted that one is not issued with a disabled driver's parking sticker because one has a sprained ankle.

33. Mrs Cook had travelled to the Hearing in Sydney by train, catching a taxi to the Sydney Registry from Central Railway Station. Mrs Cook noted that she has a left knee problem in that the knee gives way. This condition is nothing to do with her claimed condition. Mrs Cook further explained that sleeping is difficult for her. She wakes in pain and is not refreshed. When Mrs Cook stays in bed too long her back aches. The only relief for this pain is by way of hot water which helps both her right hip and her back. In 1998, Mrs Cook installed a spa at home which also helps relieve her pain. Mrs Cook further explained that her exercise is derived from walking. She can walk between five and ten minutes before her pain becomes very bad. She can walk from her office to the Penrith Plaza walking for approximately ten to 15 minutes. Over the past few years, Mrs Cook estimated that her weight has remained constant. The antidepressant medication which she takes makes it hard for her to lose weight. In general it has increased since she has stopped exercising.

EVIDENCE OF MRS DIANNE HELEN SAYEGH

34. Mrs Sayegh is a technical adviser with the ATO and is at the same executive level as Mrs Cook. Mrs Sayegh has known Mrs Cook for 15 or more years since the 1980s, with this association commencing through work. Mrs Cook and Mrs Sayegh travelled home together when they worked at the Parramatta Office. When the ATO moved to Penrith, they would work together and have lunch together. Mrs Sayegh commenced at the ATO gym in 1991. She could not remember whether Mrs Cook complained of pain in her back or right hip before March 1992. She did recall however that Mrs Cook told her of pain in the hip and back arising out of her gym exercise program. Mrs Sayegh remembers Mrs Cook complaining at that time and that she continued at the gym for perhaps 12 months after the initial injury. The injury in March 1992 occurred some 12 or 18 months after Mrs Cook joined the gym. Mrs Sayegh believed that Mrs Cook had treatment for her back and right hip in the form of acupuncture, pain therapy and naturopathy. Mrs Cook would complain of pain on the way to and from work. Mrs Sayegh did not recall Mrs Cook stating that the pain in her back and right hip have ceased. She did recall that Mrs Cook would have to have rests when using stairs and in fact tried to avoid stairs where possible.

35. Mrs Sayegh noted a change in Mrs Cook's demeanour from a person who was outgoing and jovial to a person who was obviously in pain and unhappy. Mrs Sayegh noted that it was Mrs Cook's actions rather than what she said which indicated that she was in pain. In this regard, Mrs Sayegh explained that Mrs Cook appears laboured in her movements and that this was becoming progressively worse.

36. There have been many occasions when Mrs Sayegh has visited Mrs Cook at her home. She has noticed over the years that Mrs Cook does most things around the house. She has not observed her friend undertaking any gardening, although Mrs Sayegh believed that Mrs Cook may have gardened but had ceased some time ago. Mrs Sayegh knew that Mrs Cook had undertaken some minor painting in her house in 2000 and that she recently had experienced a fall.

37. In discussing Mrs Cook's gym attendance, Mrs Sayeh recalled that Mrs Cook was proud of the Member of the Month Award. Mrs Sayegh noted that she did not attend the gym at the same time as her friend.

38. Mrs Sayegh noted that Mrs Cook's depression, to her observation, had not improved. Mrs Sayegh believed that Mrs Cook did not often sleep very well because of her pain. Furthermore, Mrs Sayegh knew of Mrs Cook's other health problems such as her gynaecological condition but did not know about her headaches. Mrs Sayegh also knew of the difficulties Mrs Cook had with her husband, but she did not enquire in any detail about these.

EVIDENCE OF MS AMANDA SICHTER

39. Ms Sichter has known Mrs Cook since 1989. Ms Sichter recalled that in 1991, Mrs Cook had no pain. She further recalled Mrs Cook having an injury resulting from an aerobics class at the gym. Ms Sichter was then not in close contact with Mrs Cook during the period July 1992 until November 1992.

40. Ms Sichter recalled Mrs Cook being awarded the Member of the Month at the gym, and that this award was a smelly sock - "a fun award." It was like an encouragement award, Ms Sichter stated, to encourage others and to recognise that Mrs Cook attended the gym frequently. Ms Sichter recalled that Mrs Cook complained after March 1992 of having a "sore lower back and lower hip" and that this pain then developed to more general areas. Ms Sichter and Mrs Cook started at the gym together and attended five times per week. Ms Sichter did not recall being in the same gym class when Mrs Cook suffered her injury. Mrs Cook did go to the gym after the injury but not as frequently between March and July 1992. Ms Sichter believed Mrs Cook eventually left the gym because she could not keep going because of the pain she experienced. Ms Sichter moved to Penrith at the end of 1994 and joined the gym at the Penrith office of the ATO. Ms Sichter thought that Mrs Cook attended the gym in the Penrith area for approximately one year. She was not sure how often Mrs Cook attended at that time, but understood that Mrs Cook undertook low impact "non-stress exercise" such as walking or using the exercise bike.

41. There have been many occasions when Ms Sichter has visited Mrs Cook at her home. Ms Sichter was not surprised to hear of Mrs Cook going up a ladder. It was her view that Mrs Cook's attitude was that if something had to be done then she would have to do it. Ms Sichter also knew of Ms Cook's difficulties with her husband. She furthermore recalled Mrs Cook falling down the stairs but did not notice her being any more careful after that. Ms Sichter knew that Mrs Cook had sought the opinions and referral to various doctors for pain management and to try and get answers about her condition. Mrs Cook had not told Ms Sichter that the pain had ever ceased.

42. In terms of activities, Ms Sichter stated that for Mrs Cook, walking two blocks is very difficult. Ms Sichter has first hand knowledge of this type of activity because she would often walk with Mrs Cook. Ms Sichter further noted that Mrs Cook walks very slowly. On stairs, Mrs Cook walks one step, pausing, before attempting the next step. Over a distance, there have to be many stops and Ms Sichter observed that Mrs Cook moves like someone who is in pain.

43. When Ms Sichter returned to work in November 1992, she noted that Mrs Cook was much less positive and in 1993/1994, Ms Sichter considered that given Mrs Cook's demeanour, she presented as someone who was severely depressed. Ms Sichter offered the opinion that Mrs Cook is still depressed but not to the same extent.

EVIDENCE OF CONJOINT ASSOCIATE PROFESSOR G D CHAMPION, PHYSICIAN IN RHEUMATOLOGY

44. The Tribunal had the benefit of two reports from Associate Professor Champion, dated 23 July 2001 (T12, N2001/1762, Bundle 1) and 15 April 2002 (Exhibit A1(a) ).

45. In forming his opinion about Mrs Cook, Associate Professor Champion had taken a history including past medical history and psychological factors. Whilst taking these matters into account, Associate Professor Champion emphasised that the original alleged injury was important in the extension of pain to a chronic widespread pain disorder.

46. Associate Professor Champion opined that Mrs Cook has acquired a regional pain syndrome as a consequence of a chronic widespread pain disorder with the recorded presence of widespread deep secondary allodynia. Associate Professor Champion did not apply the diagnosis of fibromyalgia as the primary and relevant diagnosis, agreeing with the opinions of Professor P N Sambrook, Professor of Rheumatology, University of Sydney (Exhibit R1) who diagnosed chronic pain without classical fibromyalgia and Dr G Needham, Rehabilitation Specialist (T62, N2001/280, Bundle 2), who diagnosed diffuse neuropathic pain following a work injury on 12 March 1992 complicated by reactive depression, generalised deconditioning and major weight gain.

47. Associate Professor Champion noted that while the diagnosis of fibromyalgia syndrome may be useful in regard to prognostic, therapeutic and other inferences, it tends to obscure the interpretation of causal influences and is unhelpful in the medico-legal process. Applying such a label indicates "lazy thinking" and Associate Professor Champion referred the Tribunal to an article in the British Medical Journal dealing with this issue and the "dangerous diagnosis" of fibromyalgia because it stops doctors thinking (Exhibit A10). In his report of 15 April 2002 (Exhibit A1(a) ), Associate Professor Champion reiterated his view that he did not apply the diagnosis of fibromyalgia as the primary and relevant clinical diagnosis because it is very weak on defining causation. Fibromyalgia syndrome is the final common pathway of chronic widespread pain disorders with certain tender point characteristics, which can arise from a number of causes.

48. Associate Professor Champion noted that he is in agreement with Dr N W McGill, Rheumatologist, that the precise causation of fibromyalgia is an issue. In this regard he noted that it is a syndrome for which there are multiple known causal influences and it is therefore a multifactorial condition. Dr McGill noted that there is no evidence that pure psychological causation is a sufficient explanation. Associate Professor Champion explained that if a person injures themselves, then the psychological pain with a normal functioning nervous system has mechanisms to shut down the pain, thus if we stub our toe, after a while the pain in the toe stops. People with fibromyalgia syndromes have a state of central sensitisation of nociception and inferences of impaired function of the descending pain modulation system. Associate Professor Champion opined however that listening to Dr McGill's evidence was like being in a time warp as he was referring back to opinion in the mid 1980s. It was at that time that Associate Professor Champion and his colleagues decided that there were no answers in mainstream rheumatology to chronic regional and chronic widespread disorders and that the answers needed to be sought elsewhere in pain research. Associate Professor Champion noted that Dr McGill was at least acknowledging the presence of central sensitisation, although he has a concept, in Associate Professor Champion's view, which is without support in that psychological factors cause central sensitisation of nociception.

49. Associate Professor Champion opined that the original work-related disorder occurred at the gym and had been accepted by Comcare as "chronic lumbosacral and right hip muscular strain." While that diagnosis provided a description of the original post injury disorder, it is clearly discernible and important, Associate Professor noted. For him, to focus on the widespread disorder and label the condition as fibromyalgia, was not fair or appropriate in respect of the original and continuing work-related condition.

50. Associate Professor Champion noted that Mrs Cook has no recorded history of previous psychological disorder nor of other predisposing factors to chronic widespread pain. It could be argued that Mrs Cook does have a pattern of medical attendance which could raise the possibility of a slight somatization tendency. This matter was discussed in the "Journal for Rheumatism and Arthritis" as a potential factor in chronic widespread pain. Associate Professor Champion further noted that in people with chronic widespread pain syndrome, there has been recent evidence from a population survey that those people who scored significantly on a somatization questionnaire appear to have a predisposing or risk factor for chronic widespread pain. It has not been proved scientifically however, that somatization as a clinical disorder had been shown to be a cause of chronic pain. Strictly defined, Associate Professor Champion noted that somatization as a form of illness behaviour has features of manifold symptom reporting, putting a high value on the importance of such reported symptoms and sufferers frequently seek help/medical care. It is a form of behaviour which may well be relevant to chronic pain disorders in respect of reported frequency and severity. Associate Professor Champion opined that in Mrs Cook's case, he had seen no evidence for any illness behaviour, prior to the injury in March 1992, which could be regarded as somatization. He noted that Mrs Cook was very active and involved in exercise.

51. Noting the report of Consultant Psychiatrist, Dr J Donsworth, who referred to other factors in Mrs Cook's life such as previous surgery and dysfunctional family, Associate Professor Champion noted that a research study undertaken of patients from childhood into adulthood, did not show the expected link between childhood abuse and chronic pain disorder. Whatever the predispositions are in terms of psycho-social factors, with respect to chronic widespread disorders or chronic regional pain disorders, there must commonly be an event. In Mrs Cook's case, the event that she describes around March 1992 is significant. Associate Professor Champion stated that he considered Mrs Cook to be plausible and that there was supportive evidence in the material to support an incident happening as she described it.

52. Associate Professor Champion stated that he had not simply taken Mrs Cook's side with a story, but had undertaken his review and opinion according to the Code of Conduct for Expert Witnesses for the District and Supreme Courts of New South Wales. He had aired considerations in a transparent manner in respect of other non-work injuries and factors, which may have contributed to Mrs Cook's disorder. Associate Professor Champion did not infer that Mrs Cook's widespread pain disorder was caused by any somatization process or that she was predisposed to such a disorder. It would be bizarre, in his view, for such a suggestion to be made from the content of his report, dated 23 July 2001. Associate Professor Champion concluded that the relevant chronic pain condition was primarily caused by excessive activity in the gym in March 1992 as reported.

53. Associate Professor Champion had originally assessed Mrs Cook applying Table 9.5 of the "Guide to the assessment of the degree of permanent impairment" ("the Comcare Guide") concluding that for lower limb function, she had a ten per cent whole person impairment of the right lower limb. Dr Dowsett had rated Mrs Cook as having a 20 per cent whole person impairment from Table 9.5. Associate Professor Champion further noted that Mrs Cook had obtained a disabled parking sticker which requires that before its issue, there must be difficulty in walking 100 metres. On reflection, Associate Professor Champion in his most recent report of 15 April 2002, noted Mrs Cook's difficulty with grades, steps and distances and in evidence to the Tribunal reassessed Mrs Cook as having a 20 per cent whole person impairment.

54. In his evidence to the Tribunal, Associate Professor Champion noted that chronic widespread pain syndrome is widely reported in the research literature and has particular diagnostic criteria. Associate Professor Champion noted that he preferred to call the condition a regional pain disorder which, in Mrs Cook's case, occurred initially as a pain syndrome in the low back and right hip region and later involved her shoulder. There was eventually a coalescence of a regional pain syndrome, mechanically produced and associated with clinical evidence of disordered sensory processing within the central nervous system.

55. One of the features of chronic widespread pain syndrome and particularly evidenced in what is often referred to as the sub-set of fibromyalgia, is widespread deep tissue tenderness to pressure stimuli. In particular, fibroymyalgia has certain points which have been recognised which have been specially prone to respond positively to pressure stimuli. Associate Professor Champion opined that in Mrs Cook's case, there was the original primary regional pain syndrome of sufficient severity to cause central sensitisation of nociception and thereafter, lesser mechanical stressors were required to induce regional pain syndromes. All of these then eventually added up to a chronic widespread pain syndrome which some doctors have referred to as fibromyalgia. Associate Professor Champion noted that it should be understood that the process of central sensitisation of nociception is primarily the consequence of sensory input from slow conducting pain nerves. It is that, above all, which alters the processing within the central nervous system. Associate Professor noted that psychological factors may contribute to this process and there may also be impact from the medico-legal process. In Mrs Cook's circumstances however, she continued full-time work. There are other possible reasons for the development of the regional pain syndrome including, for example, direct viral infections of the central nervous system which can also induce the same process. Associate Professor Champion further opined that in terms of excessive weight being a factor, there is no evidence to support the view that chronic regional or widespread pain syndrome has excessive weight as a risk factor.

56. Associate Professor Champion opined that the injury Mrs Cook suffered during March 1992 at the gym was the type of injury which could develop into the widespread pain syndrome. He noted that there are certain kinds of injuries which are more prone to induce long lasting disordered function in the central nervous system than others. Precise causation is still an important issue and matters have yet to be resolved. However, Associate Professor Champion noted that factors which are being considered include familial pain backgrounds, early life and any preceding injury. Evidence of excessive physical activity such as higher order exercising, sporting involvement and the like could also be factors. Psychological determinants such as evidence of earlier life abuse with anxiety and depression and evidence of somatization as an abnormal illness behaviour may also be relevant. Because of the diverse causes and casual influences, Associate Professor Champion noted that one has to be very careful about loosely using terms such as fibromyalgia and it is much better to try and work out exactly which of the potentially relevant features are germane to the development of widespread pain disorders.

57. Associate Professor Champion opined that a single injury or high intensity repetitive stressing can produce slow conducting pain nerve inputs into the spinal cord to produce long lasting changes in sensory function. There is good evidence, Associate Professor Champion stated, that once central sensitisation of nociception occurs, certain of those central nervous system changes in sensory function are long lasting and these changes in sensory function are referred to as spontaneous pain, readily provoked pain, pain in wider distribution than expected and pain which is abnormally persistent when provoked or activated.

58. The mechanism of what happened to Mrs Cook, as Associate Professor Champion understood it, is that if one repetitively, mechanically stresses a hip and a low back over a period of minutes or hours recurrently, even though there may not be much pain at the time, there are repetitive slow-conducting nociceptors at C5 and nociceptor inputs into the dorsal horn of the spinal chord. There is both electrical transmission and neurotransmitter substances operating. Such activity can then cause potentially lasting changes in sensory function within the spinal chord and higher senses. The extent to which that occurs is influenced by the severity of initial injuries such as reflected in initial pain severity. Other influences include neurobiological and psychological factors impacting on the central nervous system. Muscle soreness from repetitive use is followed by tenderness. This is not muscle pathology but central, sensitisation of nociception leading to altered sensory processing within the central nervous system. Associate Professor Champion stated that it is possible to have regional pain without injury that can be shown on MRI but with long lasting changes in spinal cord functioning. While Associate Professor Champion noted that courts remain conservative in relation to those recent concepts, all he could do was reflect the current research and knowledge.

59. What is also relevant in Mrs Cook's circumstances is that there is a difficult balance between physical activity and resting. This is supported by a recent paper by Wolfen Slater. The fact that Mrs Cook is still experiencing pain some time years after the initial incident relates to the severity of the initial injury and the subsequent management of her condition which could have been better, in terms of balancing the activities that she had. In Dr Champion's opinion, there was a determined effort using exercise regimes to return Mrs Cook to work and a consequence of that resulted in the spread of the pain disorder and probably maintenance of the pain. While there is undoubted benefit to be gained in chronic widespread pain disorder from exercise regimes compared to no exercising, this must be carefully planned and balanced. While the advice given to Mrs Cook to continue exercising was in a general sense appropriate, Associate Professor Champion commented that in Mrs Cook's particular case it may not have worked out favourably for her. The balance between rest and activity is thus difficult and also psychosocial factors become significant.

60. In relation to Dr McGill's opinion that for Mrs Cook to undertake exercise was good for her and could not have caused pain, Associate Professor Champion stated that Dr McGill was not informed about recent research publications which show that simple repetitive muscle use, quite apart from any stresses to the joints or disc, is capable of producing, through the neurobiological changes, persistent regional pain disorder in the exercised part.

61. One of the deficiencies in Mrs Cook's case is that there is no MRI observation of potential pathology, for example of the lower lumbar spine or in the right hip. If there was an internal disruption such as a disc tear or a minor labial tear in the hip joint, that kind of pathology would continue the nociception and other sensory imputs into the central nervous system and maintain the chronic pain disorder. However, the fact that no demonstrated pathological injury is apparent, does not mean that a chronic pain syndrome cannot develop. Associate Professor Champion opined that the pain experienced by Mrs Cook is genuine pain. There is no evidence, Associate Professor Champion noted, which would support other reasons for Mrs Cook's pain.

62. Associate Professor Champion noted that he was familiar with the criteria necessary to obtain a disabled parking sticker. It was his view that if there was a difficulty of a person in walking 100 metres and if that led to aggravation of an underlying condition then that is an important criteria for a disabled parking sticker. Associate Professor Champion commented that a sprained ankle would not be a proper criteria for obtaining a disabled parking permit.

63. In cross-examination, Associate Professor Champion did not agree that his opinion has reinforced Mrs Cook's belief that all her current pains are associated with an incident in the gym on 12 March 1992. Associate Professor Champion noted that Mrs Cook has been struggling with trying to grasp the reasons behind her continuing pain. The point that he had made to her was that he tried to bring matters back to the issue of the original alleged injury in the low back and hip region. It is wise and prudent to focus on that region to ascertain whether Mrs Cook's pain may legitimately have arisen from the original injury. Associate Professor Champion believes that her present condition including the shoulder region, is still the same disorder.

64. If Mrs Cook had been in Associate Professor Champion's care, he would have instigated further investigation for potentially elusive underlying pathology. He would have utilised evidence-based treatments for chronic regional and widespread pain syndrome including analgesia, a tricyclic agent at night if there was a sleeping difficulty and at least on a trial basis, a cognitive behavioural pain management program.

EVIDENCE OF DR N W McGILL, CONSULTANT RHEUMATOLOGIST

65. Dr McGill provided a report dated 30 July 2001 (T13, N2001/1762, Bundle 1). He informed the Tribunal that he is mainly a clinician whose work does not include a great deal of medico-legal referrals. Dr McGill noted that Mrs Cook has had a battle with obesity for most of her life and at the time of interview on 30 July 2001, she was severely obese such that she has a significant restriction of shoulder movement and minor restriction of spinal movement. Dr McGill noted Mrs Cook's description of widespread body pain and demonstrated marked tenderness throughout her body, typical of fibromyalgia. There is also a history of depressive symptoms in keeping with that symptom complex. The treatment of depression by "Prothiaden" is appropriate, Dr McGill opined. The diagnosis of Mrs Cook's condition is, in Dr McGill's opinion, severe obesity and fibromyalgia. There may well be some degenerative change in her lumbar discs but any possible degeneration that may exist is not the cause of her widespread symptoms and is not attributable to the exercise and gym programs that Mrs Cook had undertaken in the past in an attempt to assist with weight reduction. Dr McGill further opined that he did not believe that any condition Mrs Cook has, arose in the course of her employment including as a result of attendance at the gym. Dr McGill noted that Mrs Cook has continued employment and remains fit for her duties. Severe obesity however represents a major threat to her future, particularly as her job is not physically demanding.

66. Dr McGill had no issue about Mrs Cook's credibility or honesty. Looking at credibility as encompassing reliability in an objective sense, Dr McGill did not think it was inconsistent that Mrs Cook could be truthful yet maintain her belief that the pain is related to a particular incident. Dr McGill opined that Mrs Cook may well have reconstructed the past to heighten the importance placed on the gym incident as causing her pain disorder. A person may be perfectly honest but not have the ability to objectively assess what is important in the causation of a particular concept. If the person believes the cause comes from a certain injury then that will be focused upon. Dr McGill reiterated however that he saw Mrs Cook as a "perfectly honest person".

67. There is no permanent impairment of Mrs Cook's thoracolumbar spine, hips or shoulders, Dr McGill opined. There is a five per cent whole person impairment according to Table 9.6 of the Comcare Guide due to her obesity. There is a ten per cent whole person impairment of shoulder function in accordance with Table 9.1, again because of Mrs Cook's severe obesity but that is reversible upon weight loss. Dr McGill concluded that there is no current impairment related to Mrs Cook's work nor to the gym program she previously performed. The impairments given by Dr McGill are all reversible if Mrs Cook were to lose weight.

68. At hearing, Dr McGill noted that the causation of fibromyalgia is not clear. This condition is certainly a common presentation which rheumatologists often see in their rooms. Dr McGill opined that previous psychological stresses and difficult psychological situations increase the tendency for people to develop fibromyalgia and issues such as childhood psychologically distressing experiences must be considered. Dr McGill also noted that people who are unhappy frequently report pain and when one goes through a difficult, stressful or unhappy period, a person is more aware of aches and pains.

69. Dr McGill noted that in the medico-legal context, people who have fibromyalgia, making the claim that the condition is caused by work, then they either draw an association between an event and the condition or more probably, what they perceive as a stressful situation at work. Outside the medico-legal situation, it is common for people to make a connection between their fibromyalgia symptoms and the stress they are under, although by no means all people are aware of that association. The concept that fibromyalgia can arise from injury is not supported by the general rheumatological community, Dr McGill noted.

70. Dr McGill stated that he had not undertaken any personal research on fibromyalgia but he is a member of a weekly journal club at Royal Prince Alfred Hospital in Sydney which considers rheumatology journals. Frequently the journals cover areas such as fibromyalgia. Dr McGill noted that he did not subscribe to journals dealing with pain. He noted an editorial from "Annals of the Rheumatic Diseases" (1999) Volume 58, pp325-326, (Exhibit R4) which contains an editorial written by Dr P Reilly, a British Rheumatologist, dealing with trauma precipitating or causing fibromyalgia. Dr Reilly noted that post traumatic fibromyalgia flourishes in legal circles, even though the term may have been discouraged in the journal. Dr McGill considered that that editorial provided an appropriate view of the lack of evidence between a minor injury or major injury and the subsequent development of fibromyalgia. Dr McGill opined that the medico-legal process provides a motive for doctors and lawyers to encourage an impressionable patient in a belief that they are suffering as a result of an isolated compensable incident when there was no scientific basis for that. So far as Mrs Cook is concerned, Dr McGill did not want to place too much emphasis on entries contained within her general practitioner's clinical notes as indicating that she had abnormal illness behaviour or was unduly seeking attention during that period.

71. Dr McGill disagreed with Associate Professor Champion's view, that Mrs Cook's chronic pain condition was primarily caused by the gym exercise activity as reported or the influence of continuing exercise on Mrs Cook's condition. Dr McGill noted that exercise is a standard component of the management of fibromyalgia. It is generally agreed, he stated, that people with fibromyalgia frequently continue to report symptoms despite the efforts of various people trying to help them but that exercise is a standard part of the management of the condition. There are studies which support the benefit of exercise although, Dr McGill acknowledged, there are other studies which have failed to indicate such benefit. Specifically, a 1996 article in the Scandanavian Journal of Rheumatology, Volume 25, pp77-86 (Exhibit R3) reported, following a four and a half year prospective study, that aerobic exercise was of benefit in fibromyalgia although it was noted that there were difficulties in people maintaining the exercise. Dr McGill's view is that there is no evidence for the proposition that injury results in the subsequent development of fibromyalgia. He did agree that fibromyalgia is a chronic pain condition.

72. In relation to Mrs Cook's evidence that when she developed the injury which she believes triggered fibromyalgia, that that was a period in her life when she was happy, fit, well, slept like a log and had no depression or anxiety, Dr McGill opined that the maintenance of being happy and the development of fibromyalgia was unusual. Most people he sees with fibromyalgia are not happy and usually have had periods of unhappiness previously.. In relation to Dr McGill's proposition that it was caused by psychological stresses and depression, the fact that Mrs Cook has taken antidepressants and beta-blockers and has still no real improvement in her fibromyalgia, was difficult for Dr McGill to explain. He stated that unfortunately fibromyalgia symptoms do not always improve, despite medical practitioners' best efforts. Generally speaking, Dr McGill opined, people who are depressed when they have fibromyalgia and then improve in relation to their depression, mostly experience a substantial improvement in their fibromyalgia symptoms. Dr McGill stated that he could not provide an explanation as to why Mrs Cook continued to experience pain. He opined that this difficulty had been shared by other medical investigators who could not identify a physical source of pain. If it was purely muscle strain which Mrs Cook had experienced at the gym, then it would be reasonable to expect that it would have improved long ago. Dr McGill opined that Mrs Cook's symptom complex overall including all of the pains that she described, falls within the fibromyalgia spectrum. Dr McGill further opined that when people attach an event to the subsequent development of fibromyalgia, then it is likely that the person will maintain such a focus. Dr McGill did not mean by this that Mrs Cook was being deliberately untruthful, but rather that the focus of her attention was likely to stay on the area of the so called gym injury which accounted for why this remained as a focus of attention for her.

73. Asked to assume that Mrs Cook sustained an injury at the gym in March 1992, Dr McGill was asked whether or not the continuance of the gym would further aggravate that injury. Dr McGill opined that if there had been muscle or tendon strain as a result of gym activity, then it would be expected that after some period of rest that the pain would improve. While muscle and tendon strain can be quite slow to recover over months, they do get better and do not persist for years. Dr McGill did not think it at all likely that the creation of a pain syndrome was as a result of continuance at the gym. He considered that it is implausible that localised pain related to a gym injury was so severe as to result in ongoing pain and certainly did not have any potential to cause a widespread pain disorder. Dr McGill noted that many people with fibromyalgia continue to function in a near normal fashion. Hence, it was not unusual for Mrs Cook to have continued in her full-time duties.

EVIDENCE OF PROFESSOR P N SAMBROOK, PROFESSOR OF RHEUMATOLOGY, UNIVERSITY OF SYDNEY

74. Professor Sambrook provided a report dated 28 November 2000 (Exhibit R1). Professor Sambrook noted that Mrs Cook developed problems after attending gym classes in 1992 characterised by low back pain followed later by pain in her shoulders and hips. He noted treatment included physiotherapy and naturopathy with no real improvement followed by a diagnosis of fibromyalgia being made by Dr P Johnson, Orthopaedic Surgeon, and Dr M Arnold, Consultant Rheumatologist. Mrs Cook had been prescribed Prothiaden for depression without a great deal of benefit. Furthermore, anti-inflammatory medication was also of little benefit and upset her stomach. Mrs Cook's current pain is worse in the low back but also in the right arm and left shoulder. Mrs Cook's past medical history includes a cholecystectomy, two caesarean sections, endometrial ablations and an abdominal lipectomy. Professor Sambrook noted that Mrs Cook is morbidly obese with thoracolumbar movements restricted with slightly tender reactions to palpation in the lower lumbar spine as well as in the cervical spine. There were typical trigger points of fibromyalgia, Professor Sambrook reported. A CT Scan taken in 1992 suggested a mild bulge at the L5/S1 level. Professor Sambrook opined that Mrs Cook seems to have chronic pain without classical fibromyalgia and he was interested in her attending the Pain Clinic at Royal North Shore Hospital for further opinion.

EVIDENCE OF DR M ARNOLD, CONSULTANT RHEUMATOLOGIST

75. Dr Arnold provided a report, dated 14 August 1998 (T32, N2001/280, Bundle 2). Dr Arnold noted that Mrs Cook was examined by Dr P Johnson some years ago and diagnosed with fibromyalgia and, so far as Dr Arnold was concerned, there was no doubt about the diagnosis. He noted that she had spent the past 18 months researching her condition on the internet. He noted that she had some response to Prothiaden but does not tolerate analgesics and has had no improvement with non-steroidal anti-inflammatory medication. Dr Arnold opined that he had no doubt about the diagnosis. Dr Arnold had explained to Mrs Cook in 1998 that there is no real answer or cure to her symptoms. He noted that she may find some assistance in relation to her sleep difficulties and it may be that she may have sleep apnoea but assistance for this problem would not cure her other difficulties. Dr Arnold opined that the issue with patients with fibromyalgia is to ensure that there is no other complicating pathology and that support is given without being overindulgent.

EVIDENCE OF DR M DOWSETT, GENERAL PRACTITIONER

76. Dr Dowsett provided a number of reports concerning Mrs Cook (T3, T11, T14, T45, T54, N2001/280, Bundle 2). He noted that Mrs Cook has been a patient of his since 28 January 1987. Prior to March 1992, he noted that he had not seen her about any musculoskeletal problems or pains. In a letter of referral to Professor Sambrook dated 20 October 2000, Dr Dowsett noted that Mrs Cook has pain involving most of her body. He noted that Dr P Johnson and Dr M Arnold diagnosed her as having fibromyalgia. Dr Dowsett noted Mrs Cook's depression, treated with Prothiaden and indicated that he considered the correct assessment for her depression was ten per cent, though did not record where the ten per cent was being assessed from. He saw the depression as ongoing since her injury in March 1992.

EVIDENCE OF DR J DONSWORTH, CONSULTANT PSYCHIATRIST

77. Dr Donsworth provided a report, dated 18 May 2001 (T10, N2001/1762, Bundle 1). Dr Donsworth noted that Mrs Cook came from a very dysfunctional family, noting that both her parents consumed alcohol and there were many arguments. Her parents separated when she was 15 years of age. Dr Donsworth further noted that Mrs Cook has done well in the ATO since 1981 and her job was important to her. Her second marriage was characterised by having a husband who has been out of work for 13 years and has serious psychological problems preventing him being able to work or lead a social life. In many ways, Mr Cook is dependent on his wife as the breadwinner and the person who does the physical tasks around the home. Dr Donsworth noted that Mrs Cook began to experience pain in 1992 which then became a widespread and diffuse pain condition all over her body. From investigations, Dr Donsworth opined that there appeared to be no identifiable cause for the pain and that the attribution of the trigger for pain was made retrospectively. What happened on 12 March 1992 was not, in Dr Donsworth view, of such seriousness nor did it make much impact, as Mrs Cook actually had not remembered that day until some several months later. The fact that Mrs Cook continued aerobics and gym work for another year indicated to Dr Donsworth that Mrs Cook was not perceiving the gym activity as being adverse to her, at least for sometime afterwards.

78. Dr Donsworth opined that the word "fibromyalgia" describes symptoms of generalised and non-specific pain. The term provides an hypothesis for the cause of diffuse aches and pains, related to a physical trigger. In Dr Donsworth's view, when there is no identifiable physical cause for pain, it is often more likely that the more plausible explanation is a psychological basis for the perception or source of pain. In Mrs Cook's case, it could not be ignored that she came from a very dysfunctional family background and that led to the development of a particular personality. Dr Donsworth opined that Mrs Cook has coped in some areas of her life very well, but at the same time has somatised unresolvable psychological problems. Some of Mrs Cook's psychological difficulties are already expressed in the form of obesity. Thus, Mrs Cook's perception of the pain which she has experienced for several years, is her way of somatising psychological difficulties. It is not valid, Dr Donsworth concluded, to attribute the source of Mrs Cook's pain to a single gym class when there are extremely obvious psychological difficulties with which Ms Cook has had to cope and which she is not, in Dr Donsworth's opinion, coping with completely. Pain perception is another avenue for the expression of unresolved psychological problems, Dr Donsworth concluded.

79. Dr Donsworth opined that the correct diagnosis for Mrs Cook's condition is a chronic pain syndrome which she saw as representing somatisation of unresolved psychological problems. This condition has not arisen in a material degree from Mrs Cook's employment with the ATO or from the gym class of 12 March 1992. Dr Donsworth further opined that Mrs Cook is likely to benefit from psychological or psychiatric treatment and also serious concerted efforts at weight loss. Dr Donsworth did not consider that Mrs Cook has any permanent psychological or psychiatric impairment arising out of her employment with the ATO.

EVIDENCE OF DR A GANORA, REHABILITATION SPECIALIST

80. The Tribunal has a number of reports from Dr Ganora, namely: 9 December 1992 (T24, N2001/280, Bundle 2); 14 January 1993 (T28, N2001/280, Bundle 2); 4 March 1993, (T30, N2001/280, Bundle 2). Initially, Dr Ganora noted that Mrs Cook had pain in the right hip and back which commenced after high impact aerobics in March 1992. Since then she had tried various therapies with symptoms persisting.

81. Dr Ganora reviewed Mrs Cook on 11 January 1993, noting that before Christmas 1992 she had developed pain over the lateral aspect of the right thigh extending as far as the lower thigh with no distal symptoms. The back pain remained unchanged as did the pain in the right buttock. There is diffuse tenderness over the right sacroiliac region and along the gluteal attachments to the lateral trochanter. Dr Ganora advised Mrs Cook to gradually resume her exercise and gym routine, avoiding high impact aerobic activity. Physiotherapy should resume when she returned to work and he would review her in six weeks time. Dr Ganora reported on 4 March 1993 that there is persisting tenderness at the right rectus femoris origin but hip movements were pain free and unrestricted. Mrs Cook was advised to continue physiotherapy and to resume her gym activities, upgrading within her tolerance.

EVIDENCE OF DR G NEEDHAM, REHABILITATION SPECIALIST

82. Dr Needham reported on 13 December 2000 (T62, N2001/280, Bundle 2). Dr Needham diagnosed Mrs Cook as having diffuse neuropathic pain following a work injury on 12 March 1992, with the condition complicated by reactive depression, generalised deconditioning and major weight gain. Dr Needham recommended that Mrs Cook have a structured series of outpatient pain management attendances including regular rehabilitation and medical review together with a quota-based program of instruction and supervision in stretches, exercises and fitness upgrading. Psychology and psychiatric interventions were recommended for treatment of her reactive depression and to assist her to upgrade her pacing, pain coping and goal setting. The high dosage tricyclic antidepressant medication should be reviewed as it is possible that this medication may be contributing to Mrs Cook's weight gain. She would benefit from a weight reduction program and should have an assessment regarding sleep breathing disorder. Dr Needham considered that Mrs Cook may be able to achieve an ability to perform activities of daily living with reduced distress and a high level of self-management of her residual disability such that she would have a low level of requirement for physical therapy treatment. Treatment will also allow Mrs Cook to continue full-time work with reduced risk of future disability should "flare-up" of her pain occur.

SUBMISSIONS

83. Mrs Cook submitted that it may be difficult for the Tribunal to accept that something which happened on 12 March 1992 had led her to experiencing a decade of pain. Mrs Cook assured the Tribunal that what she had provided by way of evidence both oral and documentary is truthful. Mrs Cook submitted that she has been open and honest in her evidence and contended that during the course of the hearing she had shown that an injury did occur to her on 12 March 1992 in the gymnasium, associated with her work. The result of her injury was lumbar sacral and right hip pain from which she still suffers. Furthermore, Mrs Cook then developed a chronic pain condition and subsequently depression from which she contended she now has a permanent impairment.

84. Mrs Cook refuted any insinuation that she did not have pain from the injury after November 1993 because her medical records did not record every time she saw her doctor that there was pain present. As far as Mrs Cook was aware, there was no treatment available to her as advised by medical practitioners. She was not seeking prescription pain-killers and therefore did not raise with her general practitioner at each visit that she was experiencing pain. Mrs Cook believed that Dr Dowsett was certainly aware of the fact that she had pain and whenever she did raise it with Dr Dowsett, he did not indicate any surprise that she was still suffering from it. Furthermore, Mrs Cook noted that she did not state to Dr Dowsett each time she saw him that she was still suffering from depression. For the most part, as far as she could tell from his clinical notes, when Dr Dowsett wrote a new prescription he did not notate this in the file.

85. In relation to the contention by the Respondent that Mrs Cook unduly influenced her general practitioner in relation to her condition by presenting him with research material from the internet, she submitted that this was not true. She acknowledged that she did look for ways of helping her condition and understanding it by researching via the internet. After some discussion with Dr Dowsett, for example, he agreed to prescribe "Prozac" to see if it helped. Had Dr Dowsett stated to her it would not make any difference, she would not have insisted on a prescription. Mrs Cook asked the Tribunal to understand that she felt that as she had to live with chronic pain it was worth trying anything. None of that was done with any thought of future compensation in mind. While the Respondent may have difficulty with the gap between 1994 and 1998 and then 2000, when she actually made a claim for permanent impairment, Mrs Cook explained that by 1993, the medical advice to her was that there was nothing that could be done for her condition and she was told to go away and live with it. She ceased making claims for compensation in these circumstances. She had also hoped that the condition would resolve. When it did not, Mrs Cook continued to pay for her medication and treatment. During 1994, Mrs Cook sought counselling to try and assist her to come to terms with the fact that she had to live with chronic pain. There is no record of medication for pain during that period because she did not take it. Mrs Cook then searched the internet to try and find some answers to help her condition and also to assist her in understanding this chronic pain. In about 1997, she was told that the condition she had was known as fibromyalgia. In 1998, she believed that she was speaking to a friend who suggested that she seek a referral to Rheumatologist, Dr Arnold. All of this occurred long before there was any opportunity for her to lodge a compensation claim. At some time in 2000, Mrs Cook had a conversation with another colleague who told her that she was in the process of reopening her own compensation case. It was then that Mrs Cook made enquiries with Comcare and hence her claim. Thus the fact that there was a gap between 1994 and 1998 occurred simply because, on medical advice, she had to try to live with the condition.

86. In relation to the Respondent's contention that Mrs Cook was creating a case for this claim, by referring the causation of her chronic pain condition back to the injury in March 1992, rather than to more recent events that were not compensable, Mrs Cook disagreed. She acknowledged that the way she went about her claim for permanent impairment may have been incorrect, however, she was acting on advice from Comcare officers who sent her forms to be completed by her general practitioner. Similarly, the fact that Mrs Cook had consulted Professor Sambrook but that he did not return a full report, resulted because the report he provided was in response to a subpoena which was never seen by Dr Dowsett nor herself, until after the compensation claim action commenced.

87. Mrs Cook further acknowledged that she did have other injuries since the March 1992 injury, but there was nothing sinister in this. She was not trying to hide anything but to highlight that in the period following the gym injury until diagnosis of a chronic pain condition, there were in her records, no other causes of the pain which could be attributed to any other injury or problem. Other injuries or conditions however had resolved and there was never any suggestion that she was making claims for compensation for unrelated injuries. Mrs Cook connected her shoulder pain to the condition diagnosed as fibromyalgia. Dr P Johnson suggested to her that that was part of her condition, although he used the term fibrocytis. Mrs Cook noted that she had no hesitation in telling Dr Dowsett of other pain caused by something else, for example, problems with her knees when gardening, the problem with her right arm when washing the car or an ankle injury resulting from a fall. Those conditions had normal pain associated with it and for the most part were limited in duration, eventually resolving.

88. Referring to the Member of the Month award in May 1992, Mrs Cook contended that this was not awarded for any particular attendance level on any month, but as Ms Sichter had said, it was more of an encouragement award. It usually went to people like herself who were not fit. The first one was awarded to Mrs Cook because she had made the most improvement over the period of time that the gym had been operating. The award was never presented twice to the same person and to her recollection, the process discontinued after a few months.

89. In relation to Mrs Cook continuing her gym activity on and off over a period after she injured her hip and back, she admitted that. Mrs Cook contended that there were periods when she ceased attendance because she hoped that with rest her condition would fix itself. Mrs Cook would then continue to go to the gym, not because she did not feel any pain, but because it was recommended to her by different medical practitioners that she should keep going. Mrs Cook also acknowledged that she did have a dysfunctional family and problems from her childhood, but submitted that she had moved on from that a long time ago. The gym had assisted her with her weight control problem which she had had all her life and gym attendance was a good stress releasor. The fact that she injured herself at gym is just a part of life, Mrs Cook submitted. When Mrs Cook was told that she had arthritis she accepted it and pushed on with her life as best she could. Mrs Cook submitted that if her problem was all in her mind, then she would have continued going to the gym long past the time that she did, but she did not do this because she had pain. Finally, in relation to determining the level of impairment, Mrs Cook referred the Tribunal to Re Nuss and Comcare [2002] AATA 170, which accepted the proposition that pain may be taken into account as the source of difficulty in performing an activity.

90. The Respondent had made an issue of the disabled driver's parking sticker. As Associate Professor Champion had explained the criteria, Mrs Cook hoped that the Tribunal would see that it was not issued because of her ankle injury. Mrs Cook noted that she had asked Dr Dowsett to sign an application form for a disabled driver's parking sticker some years earlier, but he had refused. He finally conceded after nearly ten years and her condition was then considered to be permanent.

91. When Mrs Cook asked to be referred to Dr Arnold in 1998, that was four years before she made her current claim for compensation. At that point, Mrs Cook clearly saw the injury as connected to the March 1992 gym attendance, she submitted. While Dr McGill gave evidence that the medico-legal process focuses a person's mind on compensable causes, Mrs Cook submitted that she believed in 1998 that her problem was caused by the gym attendance.

92. Mrs Cook submitted that Associate Professor Champion had no hesitation linking her current pain disorder to the events of March 1992. Furthermore, the evidence provided by Mrs Sayegh and Ms Sichter supported her claim that she has lived with pain for ten years and it has effected her life and her personality. There are statements in the T Documents from six other people along similar lines, all of which attest to the longevity and genuineness of Mrs Cook's pain disorder. Furthermore, Mrs Cook submitted that none of the medical practitioner's that she has consulted since the injury in 1992 have suggested anything other than she is genuine. She reports pain only when she truly feels pain and there has been no suggestion, Mrs Cook contended, that she exaggerates the pain or is a malingerer. There is no suggestion that her credibility should be questioned.

93. In her written submissions, Mrs Cook referred the Tribunal to Comcare v Amorebieta (1996) 66 FCR 83 and contended that the restriction she suffers based on the pain in her hips and back is sufficient to rate 20 per cent under the Comcare Guide. Dr Dowsett and Associate Professor Champion support this assessment. In Re Whelan and Department of Defence (1997) 47 ALD 383, a case with similar facts to Mrs Cook's circumstances, Mrs Whelan had one episode of high intensity activity which then caused many years of pain. Mrs Cook noted that, in evidence to that Tribunal, Mrs Whelan stated that her exercise involved a great deal of running, jumping, squatting, ducking weaving and taking camouflage while wearing full uniform with webbing pack and rifle. Mrs Whelan, like Mrs Cook, thought that the aches and pains would go away. In that case, the Tribunal found the question of whether or not Mrs Whelan's current problems resulted from her army camp depended on whether or not one accepted her evidence that she had no knee symptoms prior to the camp and that her knees had been persistently painful since the camp. In Re Jeremic and Comcare (AAT 5975, 20 June 1990) at paragraph 34, Deputy President Todd stated:

"...but if when all is said and done I believe the evidence of the applicant and accept the other evidence called on her behalf as to the existence of pain, there is very little assistance that can be gained from medical evidence which if accepted at its full stretch involves a conclusion, although it seems never to be fully acknowledged by such doctors that this is so, that a claimant is in truth what they would call a "malingerer," a word which I take to mean someone who is contriving symptoms that do not exist. Once I accept, on the evidence and from my own observations of an applicant, that the pain is real, evidence based on the proposition that a condition does not exist because it cannot be medically diagnosed is in my opinion of limited value."

94. Furthermore in Re Labi and Comcare (AAT 13560, 21 December 1998) that Tribunal noted that pain itself can be a disease as the term is defined in section 4 of the Act. This was pointed out in Re Gray and Commonwealth Banking Corporation (1989) 18 ALD 799; (AAT 5168, 21 June 1989) in which it was noted:

"The failure to observe pathology or the perception of different pathology is also irrelevant in determining incapacity. In Commonwealth Banking Corporation v Percival 82 ALR 54 at 57, a full bench of the Federal Court (presided over by Davies J) referred to a submission that Commonwealth of Australia v Beattie (1981) 53 FLR 191 had been wrongly decided, and that the disease in which the old Act spoke was constituted by its underlying pathological condition and not by the symptom thereof. The Court referred to this as "a brave submission." It went on to say-

"No doubt, for many medical purposes it is useful and often necessary to distinguish between underlying pathology of a disease and mere symptoms of the disease...But that is not to say that the symptoms of the disease are not part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or a disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity. "

..."

95. Mrs Cook submitted that the Tribunal has evidence from two sources in relation to whether or not her injury is compensable. First there is the report and evidence from Dr McGill, which states that she has fibromyalgia but this is not caused by the injury in March 1992. Dr McGill provided evidence that he believed that such a condition is caused by psychological stresses and childhood experiences. Alternatively, Associate Professor Champion, who Mrs Cook submitted is highly qualified in this area, stated in his report and in evidence that he emphatically believes that the cause of pain from which Mrs Cook now suffers arises from the same condition that caused her pain in 1992, which was diagnosed then by Dr Dowsett as chronic lumbosacral and right hip muscular strain. In similar circumstances, and supporting Mrs Cook's contentions is Re Elliott and Comcare [1999] AATA 636. This lends weight to Mrs Cook's submissions.

96. In relation to her claim for permanent impairment, Mrs Cook submitted that she has a 20 per cent impairment under Table 9.5 of the Comcare Guide on the basis that she has difficulties with stairs, grades and distances. In relation to depression, referring to Dr Dowsett's assessment using the Comcare Guide, Mrs Cook submitted that the correct assessment is a ten per cent whole person impairment.

97. In conclusion, Mrs Cook submitted that the Tribunal should find that she has a compensable condition of lumbosacral and right hip muscular strain, chronic regional pain syndrome and depression. From those conditions flows permanent impairment as outlined. If the Tribunal did not find that the conditions are permanent, then she requested a finding that the cost of a pain management programme should be met by the Respondent.

98. Ms Adamson, for the Respondent, submitted that Mrs Cook's claim was a "resuscitation" of a very old claim previously accepted by Comcare on information it had at the time. Ms Adamson noted that Mrs Cook conceded in cross-examination that in 1993 she had ceased submitting claims for medical expenses and consequently Comcare had archived its file, having to retrieve it in 2000. Ms Adamson noted that when Mrs Cook submitted her original claim and the incident report, she did not attribute her pain to any particular incident. Comcare did not have access to Dr Dowsett's clinical notes (Exhibit A3) until the hearing in this matter.

99. Ms Adamson submitted that Mrs Cook is aware of her legal rights and her decision to stop submitting claims for treatment in 1993 must be seen as consistent with an acceptance by her that any connection between the injury and work had ceased.

100. Ms Adamson submitted that she did not accuse Mrs Cook of dishonesty. Nonetheless, it was Ms Adamson's submission that Mrs Cook is an unreliable witness. In this regard, Ms Adamson referred the Tribunal to Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 431 in which Lord Pearce noted:

""Credibility" involves wider problems than mere "demeanor" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversations correctly, and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

101. From the evidence, Ms Adamson further submitted that Mrs Cook had initially accepted that her condition was not work-related, but through internet searches about fibrocytis/fibromyalgia, there had been an exchange of information between her and fellow sufferers which led to further enquiries. When Mrs Cook attended Dr Dowsett in 1992, it appeared that she was not sure whether the aerobics class had been the cause of her pain in the right hip (Exhibit A3). She could not and did not identify an incident when she submitted her original claim form and incident form some six months after the incident. However, now Mrs Cook is absolutely certain that all of her difficulties in the proceedings relate to an incident on 12 March 1992. By the time she consulted Associate Professor Champion, Mrs Cook was able to give a very detailed description and explanation for her condition. In Ms Adamson's submission, the contemporaneous claim form and clinical notes are the type of documents and incontrovertible facts indicating precisely the phenomenon which Lord Pearce was alluding to. Thus, in witnesses such as Mrs Cook, who are emotional, they have the tendency to conjure up legal rights which did not exist.

102. Referring to Dr McGill's evidence, he stated that he could not provide an explanation as to why the pain which Mrs Cook alleged started on 12 March 1992 in the gym class had continued at some severity ten years later. Dr McGill noted that there is a symptom complex known as fibromyalgia. Dr McGill opined that attaching an event to the subsequent development of the condition, leads patients to maintain their focus or attention on that incident and this is encouraged by the medico-legal process. That then brings the Tribunal to consider Mrs Cook's credibility and honesty in the context of the principles outlined by Lord Pearce. Ms Adamson contended that anyone observing Mrs Cook would be convinced that she genuinely believes that the incident which she alleges occurred on 12 March 1992 occurred and that this is the cause of her pain which causes her significant distress. Associate Professor Champion had no hesitation in affirming Mrs Cook's belief. This is in the context of Associate Professor Champion conceding that there is substantial state of doubt as to the causation of fibromyalgia, but nonetheless he chose to fortify Mrs Cooks beliefs in the face of such doubt.

103. Ms Adamson submitted that in making a determination of the claim for compensation under the Act, the Tribunal must be satisfied that the injury nominated by Mrs Cook is responsible for her current constellation of symptoms. That is the first step. If the Tribunal found against Mrs Cook on that first step, then there would be no need to go any further in assessing whether or not there was permanent impairment or whether she was entitled to medical expenses.

104. Dealing with permanent impairment, Ms Adamson submitted that irrespective of what the Tribunal decided in relation to causation there is simply no proper evidence which could be accepted to support a claim for permanent impairment. The one psychiatrist in this matter, Dr Donsworth, has the requisite expertise to make an assessment of permanent impairment. While Dr Dowsett assessed Mrs Cook as having a ten per cent whole person impairment for depression, it is Ms Adamson's submission that he had acted as Mrs Cook's amanuensis. In this regard, Ms Adamson referred the Tribunal to Exhibit A3, p26 with the relevant consultations of 6 September 2000 and 26 October 2000 in which Dr Dowsett noted depression with ten per cent impairment. That is the extent of the applicant's evidence against which must be assessed Dr Donsworth's lengthy and comprehensive report (T10, N2001/1762, Bundle 1).

105. The Tribunal was referred by Ms Adamson to the photograph taken in May 1992 (Exhibit A5), which depicted Mrs Cook being in receipt of the Member of the Month award. Ms Adamson submitted that it is inconceivable that Mrs Cook actually could have achieved that award, in light of the evidence that was provided to the Tribunal. Ms Adamson submitted that Mrs Cook would have the Tribunal believe there was an injury of sufficient severity to cause, on Associate Professor Champion's evidence destruction to nociceptive pathways, in the context of Mrs Cook continuing at the gym in a way which she was presumably successful and able to achieve the Member of the Month award. It beggars belief, Ms Adamson submitted, that a gym would in May 1992 give someone who had suffered a debilitating injury on 12 March 1992, the Member of the Month award. The photograph was therefore inconsistent with the evidence Mrs Cook would have the Tribunal believe. Furthermore, while Ms Adamson accepted that Mrs Cook suffers pain, this must also be seen against the background of her washing the car, painting the kitchen, climbing on a ladder, gardening, using a mattock and continuing at the gym for a number of years.

106. The Tribunal was referred to Dr Arnold's report (T32, N2001/280, Bundle 2) in which Dr Arnold reporting to Dr Dowsett agreed with the diagnosis of fibromyalgia but recommended supportive assistance without being overindulgent. In a similar vain, Ms Adamson urged the Tribunal not to be overindulgent in its determination of Mrs Cook's application for review. If the Tribunal was to find that the current complaint of pain was caused by the incident on 12 March 1992, then in Ms Adamson's submission, the Tribunal would be committing the same grave error which was committed by Associate Professor Champion. Associate Professor Champion had as his starting point that it was difficult, if not impossible, to determine the precise cause of fibromyalgia or chronic pain disorder. There are a number of predisposing factors which he listed in evidence. Ms Adamson submitted that Associate Professor Champion provided at best a superficial attempt to exclude other factors. The evidence of childhood and family dysfunction obtained by Dr Donsworth is so much more comprehensive than that obtained by Associate Professor Champion and must be taken into consideration in the context of Mrs Cook's symptoms. Associate Professor Champion, Ms Adamson submitted, simply reinforced Mrs Cook in her belief that the incident of 12 March 1992 was responsible for the chronic widespread pain syndrome. Associate Professor Champion's opinion is mischievous, Ms Adamson submitted, given the state of scientific learning on the subject of pain disorders, Dr McGill had noted that the research thus far does not support a causal connection between a physical injury and fibromyalgia. Associate Professor Champion obviously believes to the contrary and has published articles to this effect which served to reinforce Mrs Cook's fixation. Having so submitted, Ms Adamson contended that it was not being suggested that Mrs Cook's motive was principally to obtain monetary compensation, although that will be the result of an acceptance of an application for review. Rather, Ms Adamson contended, the way that Ms Cook has presented her case is that she wants to achieve recognition, so that it can be concluded by her that the gym caused the incident causing her ongoing health problems. The Tribunal should not do as Associate Professor Champion has done but should head Dr Arnold's recommendation to not overindulge Mrs Cook. This would be a dangerous thing, especially given the state of uncertainty in medical science. The Tribunal must understand that it is concerned with a human being who genuinely believes the causation of her problem and to affirm this could possibly be very detrimental to her condition and be responsible for the medico-legal process prolonging the agony, rather than alleviating it.

107. In relation to the claim for treatment, the question arises whether the claim for pain management for fibromyalgia is related to the incident on 12 March 1992. The only connection is in Mrs Cook's mind, Ms Adamson contended. Looking at the actual evidence and the state of accepted scientific knowledge, it is not reality. In all of the circumstances, Ms Adamson submitted that the original determinations and reconsideration of decisions should be affirmed and Mrs Cook's application for review should be dismissed.

FINDINGS

108. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.

109. Ms Adamson has presented some thought provoking submissions concerning the issue of credibility. Not in the sense that Mrs Cook is deliberately trying to mislead the Respondent or indeed the Tribunal, but that in the context of Lord Pearce's discussion of credibility in Onassis and Calogeropoulos v Vergottis (supra), Mrs Cook is perhaps, though a truthful person, providing evidence contaminated by wishful thinking and a belief of moral rectitude, thus leading, on Ms Adamson's submission, to Mrs Cook conjuring up a legal right that does not exist.

110. Let us examine the evidence, not just that of Mrs Cook, but the objective medical evidence and opinion. No doctor is suggesting that Mrs Cook is malingering. It is clear that all concerned believe that she is genuinely experiencing pain. There is a submission by the Respondent that Mrs Cook has retrospectively attributed her painful hip and lower back problem for which liability was accepted by Comcare, to the gym injury and the continuing but widespread regional pain disorder. There is contemporaneous evidence from Mrs Cook and from witnesses who have a work association with Mrs Cook, that she complained of pain following the gym incident in March 1992. The Tribunal accepts as credible and honest the evidence provided by Mrs Sayegh and Ms Sichter. Furthermore, the fact that Mrs Cook was unsure at the time of the injury that it was the gym attendance which caused her problems is not a matter which the Tribunal considers is indicative of her trying to inappropriately fix the facts retrospectively to her claim. Mrs Cook's evidence, which the Tribunal accepts, is that she did have pain after the March 1992 injury but that she hoped that it would go away, hence the delay in her consulting Dr Dowsett. Furthermore, the expression of the incident in the incident report and claim form is as Mrs Cook saw it. She should not be penalised for not having the requisite medical knowledge or ability to link causation with the symptoms she was experiencing. The Tribunal also accepts evidence that she continued at the gym because it was recommended on medical advice. This was confirmed by the Tribunal in reference to Dr Ganora's reports and those of other doctors in 1993. Furthermore, this appears to be confirmed when reference is made to Dr Johnson's reports.

111. There are gaps in the recording of relevant pain in Dr Dowsett's clinical notes. The Tribunal accepts Mrs Cook's evidence that she did not report pain on every visit. Furthermore, this has some credence when reference is made to the medical reports during 1993 and 1994 which indicate that she was told that there was nothing that could be done for her condition and it was then her decision that she must just get on with her life. The Tribunal accepts that Mrs Cook was at that time accepting that pain was part and parcel of her future. Dr Arnold particularly indicated that there was nothing she could do.

112. The Tribunal had the benefit of observing Mrs Cook over the two days of the hearing. As Lord Pearce noted, in making decisions about a person's credibility, it is not just looking at the evidence but the demeanour of the person and corroborative and contemporaneous evidence. The Tribunal finds that Mrs Cook did continue to experience pain following a 1992 injury in the gym and she was referred by her general practitioner for specialist opinion. Mrs Cook should not be criticised for her attempts to try to seek answers to understand her ongoing pain, not just in terms of causation but in terms of the management of the condition. It was from this point that she was then able to obtain a referral to Dr Arnold. She further sought opinion from Professor Sambrook.

113. Mrs Cook was compensated for her musculoskeletal pain by the Respondent for a time limited period following the 1992 injury. Dr McGill considers that there are other non-work related factors to explain Mrs Cook's continuing pain such as a dysfunctional family background leading to psychological difficulties which caused her current condition of fibromyalgia. The Tribunal prefers the diagnosis of widespread regional pain syndrome as opined by Associate Professor Champion. It is clear and accepted by Mrs Cook that she does have antecedents including a dysfunctional family background and childhood. She had that background when she commenced work with the ATO and yet was able to work and progress to a senior management position. Mrs Cook also has a husband who has significant psychological problems. These circumstances stand along side Mrs Cook's circumstances of having had an injury in March 1992 for which she sustained symptoms in the lower back and hip. The Tribunal finds that Mrs Cook now has a condition referred to by Associate Professor Champion as a regional pain syndrome in her shoulders.

114. It is true, as Ms Adamson submitted and Associate Professor Champion and Dr McGill opined, that the state of knowledge in relation to pain disorders is not clear or settled. The Tribunal, as with any matter where scientific knowledge and legal construction collide, must make its decision on the best evidence available on the requisite standard of proof of the balance of probabilities. From the studies undertaken of pain disorders, causation is noted to be multifactorial, including injury, psychosocial factors and perhaps the impact of the medico-legal process. Associate Professor Champion was clear in his explanation of the mechanism of nociception and the manner in which a gym injury, such as Mrs Cook experienced, could lead on to a chronic pain disorder.

115. Associate Professor Champion provided a reasoned explanation as to how a high impact injury such as one sustained at the gym could then be compounded by repeated attendance at the gym causing the sensitisation of the central nervous system through damage to the nociceptive mechanisms. Nothing in Dr McGill's evidence contradicted this. It is quite likely, and Associate Professor Champion acknowledged this, that there may well be an impact of psychosocial factors in the development and maintenance of a regional chronic pain disorder. Whether or not this is the case in Mrs Cook's case, it is the Tribunal's finding that there is a material contribution to the development of her regional pain disorder by the incident in the gym in 1992. That psychosocial factors may also be involved as a material contribution, should not deny the impact of the original injury for which Comcare had accepted liability. The Tribunal does not, on all the evidence, consider that Mrs Cook's condition can be explained by somatization. Accordingly, the Tribunal finds that Mrs Cook is suffering from real pain in the form of a widespread regional chronic pain disorder and that it is compensable.

116. Considering all of the evidence, both oral and documentary, the Tribunal finds that Mrs Cook has an injury as defined in section 4 of the Act in the form of a widespread regional chronic pain disorder. The Tribunal also finds that Mrs Cook is suffering from depression as a secondary consequence of this regional pain disorder. The Tribunal further finds that pursuant to section 14 of the Act, the Respondent is liable to pay compensation to Mrs Cook.

117. Pursuant to section 16 of the Act, the Tribunal finds that the Respondent is liable to pay Mrs Cook's reasonable medical expenses in relation to the widespread regional chronic pain disorder in the form of a pain management program and associated treatment costs for her depression.

118. In so deciding, the Tribunal agrees with the Respondent's submission that it carries great responsibility in this and other matters so as not to inappropriately validate or cause further harm to an Applicant in relation to extending his or her beliefs when there is no foundation for doing so. The Tribunal must, on all of the evidence, arrive at the correct and preferable decision. The fact that Mrs Cook has tried to find answers as to the causation of her condition and to seek better advice about its management should not reflect poorly on her. The fact is that the literature indicates a majority view that there is a condition of chronic pain disorder of which there is a subset of fibromyalgia. The evidence is also that the causation of the condition, though not fully understood, is on the balance of probabilities a condition multifactorial in causation.

119. Turning to the issue of permanent impairment, from Mrs Cook's evidence, the evidence of lay witnesses and medical opinion, the Tribunal considers that the appropriate whole person impairment for her low back and hip is 20 per cent from Table 9.5 of the Comcare Guide for "Limb Function-Lower Limb", which indicates that she can rise from a standing position and has difficulties with grades, steps and distances.

120. In relation to the secondary condition of depression, the Tribunal does not consider on the available medical and other evidence and applying the requirements of the Comcare Guide, that the condition can be considered to be permanent and accordingly, noting specifically the expert opinion of Dr Donsworth, there is no permanent impairment and therefore a zero rating is appropriate.

121. In all of the circumstances and for the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal decides to set aside the decisions under review and in substitution therefor, determines that:

(i) The Applicant suffers from an injury pursuant to section 4 of the Safety, Rehabilitation and Compensation Act 1988 in the form of widespread regional chronic pain disorder and secondary depression referrable to an injury sustained on 12 March 1992.

ii) The Respondent is liable, pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988, to pay for reasonable medical expenses for the widespread regional chronic pain disorder and depression, including a pain management programme.

(iii) The Respondent is liable to pay Mrs Cook compensation for permanent impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988 for a 20 per cent whole person impairment for her pain disorder referrable to her hip and low back condition.

(iv) The Respondent is liable to pay compensation to Mrs Cook pursuant to section 27 of the Safety, Rehabilitation and Compensation Act 1988 for non-economic loss.

(v) The Respondent is liable to pay Mrs Cook's reasonable costs associated with the applications for review in matters N2001/280, N2001/527 and N2001/1762.

I certify that the 121 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J D Campbell, Member

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

Associate

Dates of Hearing 23 and 24 April 2002

Date of Decision 10 January 2003

Representative for the Applicant Self-represented

Representative for the Respondent Ms C Adamson of Counsel

Solicitor for the Respondent Ms L Rieper, Dibbs Barker Gosling