Comcare ordered to reassess retired Defence worker’s need for help
The Administrative Appeals Tribunal (AAT) has remitted a Comcare decision so a retired Defence worker’s gardening/household assistance claim can be reassessed.
It set aside two Comcare decisions, finding on the balance of probabilities Wendy Ranger “continues to suffer from cervicobrachial regional pain syndrome”. Member Regina Perton found Ranger was entitled to compensation payments for medical treatment expenses and incapacity for work from April 7, 2015.
The AAT acknowledged Ranger’s regional pain condition from repetitive keyboard work posed “complex” questions about the nature of the condition. Member Perton said the tribunal was “not entering into the ongoing debate” between pain specialist Professor Milton Cohen and consultant rheumatologist Dr Loretta Reiter on “whether fibromyalgia is an acceptable label in general terms”. However, “developments in that arena will be viewed with interest”, she said. It followed Comcare’s reviewable decision that household and gardening assistance to Ranger could not be sustained “insofar as it relied on the finding [her] need for assistance did not arise from a work-related condition”.
However, Member Perton said the AAT believed Ranger “continues to require some household and gardening assistance, and the extent to which her daughter is currently able to assist her remains unclear on the evidence”. Ranger worked in the public sector for several years before she suffered a medical condition that resulted in her having to take considerable time off work. Between 2000 and 2004 Ranger had a lengthy period off work and undertook rehabilitation programs. Ranger was seen by various drs in different specialties after suffering pain in her neck, shoulders and arms. Ranger’s diagnoses varied, Member Perton said. “Some medical specialists described it as fibromyalgia, others as cervicobrachial regional pain syndrome with lateral epicondylitis and others still as combinations or variations of the above. Opinions differed as to whether her condition and pain had been caused by the nature of her employment.” Ranger’s first application for household assistance was made on July 8, 2008, when she applied for two hours gardening services a fortnight for lawn-mowing, and two hours cleaning services a week. Further claims were allowed for household domestic services for two hours a week on October 18, 2010, household services on Oct 18, 2011, and household/gardening services for two hours/week on Oct 16, 2012. On Oct 2, 2013, Comcare determined household services for two hours/week and gardening services for two hours/week were payable.
Comcare suggested daughter could help injured worker with household chores
On November 21, 2014, following an occupational therapist’s assessment, a Comcare delegate determined household services would be reduced from two hours a week to two hours a fortnight until Oct 30, 2015 and gardening/mowing services for two hours a month up to the same date (above). Ranger was also advised she would be reimbursed the cost of a lightweight vacuum cleaner. The delegate suggested Ranger’s adult daughter could help her with household duties. On Nov 25, 2014, Ranger asked that gardening services be kept fortnightly in the summer months and advised of her daughter’s full-time and travel workload. The delegate made another decision on Nov 27, 2014, changing the gardening services to two hours a fortnight up to and including January 31, 2015, two hours a month from February 1, 2015 to July 31, 2015 and two hours a fortnight from August 1, 2015, to Oct 30, 2015. On December 8, 2014, Ranger requested the delegate’s decision be reconsidered. Comcare commissioned further medical reports. On Feb 17, 2015, a Comcare review officer revoked the determination the delegate made on Nov 21, 2014. The review officer determined Ranger had no entitlement to household and gardening services. The review officer suggested Ranger’s symptoms were not related to her compensable medical condition and considered Ranger’s daughter was able to help with household duties.
No evidence using a mouse should result in widespread pain: rheumatologist
In the AAT hearing (above), Professor Cohen stated via telephone that both cervicobrachial syndrome and fibromyalgia were identifying labels for pain, rather than providing an analysis of the cause of the pain. He reiterated his view fibromyalgia was not a constitutional condition. Cohen conceded the debate about fibromyalgia was “still ongoing and that he belongs to the school of thought that does not accept that fibromyalgia exists”, Member Perton recounted.
Conversely, Dr Reiter disagreed with Cohen. Reiter had examined Ranger on Dec 11, 2014, at Comcare’s request. Reiter confirmed her view there was no evidence that trauma, including that in the workplace, precipitates the condition of fibromyalgia. Reiter said there was no evidence to support that sitting at a computer using a mouse would result in widespread pain. Reiter said the causes of fibromyalgia were not known, “although there can be certain personality types that are vulnerable”, Member Perton recounted.
But Reiter was sure the current evidence showed it was not related to the type of work Ranger performed. Asked about the temporal link with Ranger’s symptoms, Reiter pointed out that if there was a temporal connection “the symptom should have gone away rather than persisted over the next decade or more”.
17 years of medical evidence scrutinised
Member Perton (above) said “looking at almost 17 years of medical evidence and diagnoses, the conclusions of the various medical experts fall into two broad groups”. One group, led by Cohen, was firmly of the view Ranger did not suffer from fibromyalgia now and did not suffer from a condition of that description at the time of initial injury.
“The other group, whose views are most thoroughly articulated by [Reiter], believes [Ranger’s] condition is best described as fibromyalgia, that it is a constitutional condition which is not now work-related and indeed, probably never was.”
Member Perton observed that Cohen stated Ranger’s condition could best be described as cervicobrachial regional pain syndrome, although it was “apparent he has some degree of reservation when it comes to labelling pain syndromes”. He accepted that early diagnoses by medical professionals were that the condition was work-related. However, “he and [Reiter] have examined her more than a decade after she was superannuated out of the public sector due to her medical condition”.
Conditions can be ‘misdiagnosed’: AAT
Member Perton (above) accepted “conditions could be misdiagnosed and/or be impacted by degenerative factors such that the nature of the condition changes over time”. She noted Comcare accepted Ranger suffered from cervicobrachial regional pain syndrome with lateral epicondylitis in 2001 and again in 2007 when it determined she had a 27% whole-person impairment.
“Both parties agree [Ranger] is unfit for work and is unable to undertake certain tasks,” Member Perton said.
But the AAT preferred “the diagnosis put forward by [Cohen], a noted academic who has written extensively on the topic of pain syndromes and also has practical involvement in being part of a pain clinic along with colleagues”. Cohen’s diagnosis was that Ranger continued to suffer from chronic cervicobrachial pain syndrome, she said.
The tribunal found Ranger “continues to suffer from cervicobrachial regional pain syndrome with the onset of the condition being work-related”. It set aside Comcare’s decision to stop payments for medical and other incapacity entitlements to Ranger and remitted its finding to Comcare to recalculate and reimburse any entitlements.
Member Perton also remitted the issue of whether her daughter was able to help her. That would yield a “fresh assessment of what [Ranger’s] needs currently are”, Member Perton said. (Ranger v Comcare (Compensation) , AAT 1054, 30/06/2017)