Arnold v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Arnold v State of New South Wales (NSW Police Force) [2024] NSWPIC 205
APPLICANT:	Eloise Isabelle Arnold
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Karen Garner
DATE OF DECISION:	15 April 2024
DATE OF AMENDMENT:	23 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted psychological injury; respondent paid for purchase, training, accreditation and some other costs of psychiatric assistance dog; whether further costs relevant to the upkeep, veterinary expenses, training and other expenses relevant to the service dog is reasonably necessary as a result of the accepted psychological injury; Held – certain further costs are reasonably necessary as a result of the accepted psychological injury; certain further costs are not reasonably necessary as a result of the accepted psychological injury.
DETERMINATIONS MADE:	The Commission determines: 1. In relation to the claim for past expenses, the following items are reasonably necessary as a result of the accepted psychological injury: (a) K9 Pro Dog leashes; (b) Ziwipeak dried feed; (c) boarding kennels feed, and (d) Dr B’s Barf Combo Dog Food. 2. In relation to the claim for past expenses, the following items are not reasonably necessary as a result of the accepted psychological injury: (a) Damage to the interior of the applicant’s car: the applicant claims the amount of $800. 3. In relation to the claim for future expenses, the following items are reasonably necessary as a result of the accepted psychological injury: (a) annual vaccination Cprotech C3 and 2i; (b) annual vaccination Bronchishield III; (c) flea/tick/worm control; (d) six-monthly MindDog Clearance Health Check; (e) raw feed supplies by Butcher Dog; (f) MindDog PAT assessment; (g) MindDog reaccreditation certification; (h) MindDog training with Good Dogma; (i) car travel enclosure; (j) 2 Boomer dog bowl; (k) Driza-Bone dog coat; (l) Dr Lisa treat pouch; (m) dog buttons; (n) six-monthly behaviouralist visits by Ms Billing; (o) behavioural medications (Gabapentin and Sertraline), and (p) Cytopoint injections. 4. In relation to the claim for future expenses, the following items are not reasonably necessary as a result of the accepted psychological injury: (a) annual Proheart SR12 injection; (b) Bravecto chew 20-40kg; (c) Paragard dog 20kg (3 pack); (d) Extra-large Barney Golden Teddy orthopaedic bed cover; (e) stationary enclosure; (f) Yeti water cooler; (g) Yeti travel food cooler; (h) pooper scooper; (i) Spotlight camera; (j) Eufy Cam Homebase 3 (2 pack); (k) Dr Lisa corner bowl; (l) Nina Ottoson puzzle toy; (m) extra-large Kong; (n) Dr Lisa lick mats; (o) monthly supplied treats from Maggie’s Pet Co; (p) Guide Dogs life insurance; (q) Bold Lead Designs harness, and (r) ongoing grooming. The Commission orders: 5. The respondent to pay, in accordance with s 60 of the Workers Compensation Act 1987, the following costs: (a) In relation to the claim for past expenses: (i) K9 Pro dog leashes: $75; (ii) Ziwipeak dried feed: $70.69; (iii) boarding kennels feed: $55, and (iv) Dr B’s Barf combo dog food: $34. (b) In relation to the claim for future expenses: (i) annual vaccination Cprotech C3 and 2i: $82; (ii) annual vaccination Bronchishield III: $40; (iii) flea/tick/worm control: $400 per annum; (iv) six-monthly MindDog Clearance Health Check: $164 per year; (v) raw feed supplies by Butcher Dog: $70 per week; (vi) MindDog PAT assessment: $300; (vii) MindDog reaccreditation certification: $250; (viii) MindDog Training with Good Dogma: $60 per session; (ix) car travel enclosure: $1,620; (x) 2 Boomer dog bowl: $69.95; (xi) Driza-Bone dog coat: $139; (xii) Dr Lisa treat pouch: $60; (xiii) Dog buttons: $49.99; (xiv) six-monthly behaviouralist visits by Ms Billing: $200 per visit plus $30 in respect of any script fee; (xv) behavioural medications (Gabapentin and Sertraline): $600 per annum, and (xvi) Cytopoint injections: $156 per injection.

STATEMENT OF REASONS

BACKGROUND

Eloise Isabelle Arnold (the applicant) was employed by the State of New South Wales (NSW Police Force) (the respondent) as a police officer.
The respondent accepted a claim that the applicant sustained a primary psychological injury in the nature of a disease pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) with a deemed date of injury of 21 November 2021 (the accepted injury).
Pursuant to s 60 of the 1987 Act, the respondent paid the cost of various associated treatment and services provided to the applicant in relation to the accepted injury, including psychiatric treatment and psychological treatment.
Pursuant to s 60 of the 1987 Act, the respondent also paid the cost of the applicant being provided with a psychiatric assistance dog, a German short-haired pointer, “Fred” (the dog), which included:
(a)    the cost of the dog;
(b)    the cost of the dog’s training and accreditation as a psychiatric assistance dog, and
(c)    the cost of various items and services relevant to the dog.
By these proceedings, pursuant to s 60 of the 1987 Act, the applicant claims the costs of various additional items or services used or proposed to be used in relation to the dog (the requested items), including training, veterinary and health items, food and other items.
The respondent’s insurer declined liability for the requested items on grounds that they are not reasonably necessary as a result of the accepted injury pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

These proceedings were initiated by an Application to Resolve a Dispute (Application), filed on 17 January 2024. The respondent filed a Reply (Reply) on 8 February 2024.
At a conciliation and arbitration hearing before me on 18 March 2024, Mr Misha Hammond, counsel, appeared for the applicant, instructed by Turner Freeman Lawyers. Mr Bill Loukas, counsel, appeared for the respondent, instructed by Hicksons Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the requested items are reasonably necessary as a result of the accepted injury pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

By consent, the following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the Application and attached documents;
(b)    the Reply and attached documents;
(c)    Application to Admit Late Documents dated 5 March 2023, filed on behalf of the respondent, and attached documents;
(d)    Application to Admit Late Documents dated 12 March 2023, filed on behalf of the applicant, and attached documents, and
(e)    an Aide Memoire provided by the respondent in relation to the requested items.

Oral evidence

There was no application for leave to cross-examine and no oral evidence was given.

EVIDENCE

Applicant

The applicant gave evidence by way of a lengthy and detailed statement dated
23 November 2023. The applicant described her work duties and numerous traumatic incidents that she was subjected to in the performance of those duties. The applicant described various significant ongoing symptoms and effects of psychological and psychiatric injury that she has sustained in the course of her work. The applicant stated that she has received and continues to receive various psychological and psychiatric treatment in respect of that injury.
The applicant stated that in or around May 2023, the insurer approved the provision of an assistance dog to the applicant, as recommended by her treating practitioners for treatment of diagnosed post-traumatic stress disorder. The applicant described numerous ways in which the dog assists her in relation to her various psychiatric symptoms. These include: providing deep pressure therapy to the applicant when required; alerting her to take medication and eat; alerting her to stressors; alerting emergency assistance through button commands; setting a daily routine; and easing her stress and anxiety in public and socialising. The applicant stated that the dog requires ongoing care and training aids to support his learning and to ensure he is able to perform the required tasks.

Dr Peter Anderson, consultant psychiatrist

Dr Anderson provided independent medical evidence, qualified by the applicant.
In a report dated 10 August 2023, Dr Anderson stated a diagnosis of severe Chronic Post-Traumatic Stress Disorder and Associated Major Depressive Disorder, which resulted from accumulated trauma within the context of the applicant’s employment, and was exacerbated or aggravated by perceived lack of support and harassment in the workplace. Dr Anderson noted that the applicant is receiving fairly extensive outpatient treatment with a psychologist, psychiatrist and psychotropic medication, however there has not been a lot of response to treatment to date. Dr Anderson recommended that the applicant receive ongoing treatment. Dr Anderson endorsed the provision of an assistance dog to the applicant for the treatment of her psychological injury.
In a separate report dated 10 August 2023, Dr Anderson stated an assessment of 22% whole person impairment (WPI) in respect of psychiatric impairment.

Mark Simpson, treating psychologist

In a letter dated 11 March 2024, Mr Simpson expressed support for the applicant’s claim in relation to the dog. Mr Simpson stated that the applicant has been diagnosed with post- traumatic stress disorder, depression and anxiety and suffers numerous symptoms connected with those diagnoses including being highly emotionally reactive, experiencing flashbacks and hypervigilance which makes it difficult for her to copy in public environments. Mr Simpson stated that the applicant’s condition is likely to be long term and she will require ongoing support to assist her coping and her recovery.
Mr Simpson stated that the presence of the dog assists the applicant to improve her recognition of her emotional levels and to manage her arousal. He stated that the dog provides pressure therapy, emotional regulation and communicates when he notices the applicant become dysregulated. Mr Simpson stated that the dog is still in training and, as he continues to learn, he will further improve his ability to assist the applicant in those situations.

Dr Isaac Graham, veterinarian

In an undated letter, Dr Graham stated that the dog is a German Shorthaired Pointer (working dog breed), a big dog then aged 15 months.
Dr Graham stated that the dog would require various items, which include: regular ongoing regular veterinary care including preventative health care, including parasite control and vaccination; a high quality diet; regular training management; a coat to protect him from the elements; a method of safe and efficient transportation in motor vehicles, with a crate or enclosed space being “Gold standard”; various items such as a durable approved lead and harness and other items; regular visits to an accredited trainer and behavioural consults with a veterinarian; various training games and toys; and a permanent or semi-permanent enclosure. Dr Graham noted that the dog was then undergoing training and assessment to be accredited as an psychiatric assistance dog.

Rachel Devenish-Meares, accredited dog trainer

In an undated letter, Ms Meares stated that the dog was undergoing training to be accredited as an assistance dog under the Mind Dog Program. Ms Meares stated that after he was accredited, the dog would require to meet various ongoing standards to be deemed operational, which included ongoing regular medical clearances. Ms Meares stated that the dog would require various ongoing regular training and medical intervention, training aids, operational equipment, medication and grooming. Ms Meares stated that the dog will require a “gold class” certified vehicle crate for transport.

Eden Bennet, canine nutritionist

In an undated report, Mr Bennet described a dietary plan which he considered to be appropriate to maintain the dog’s health and ability to perform in a working role. This included fresh meat, fruit, vegetables, other carbohydrates and raw meaty bones.

Lisa Baxter, canine nutritionist

In a report dated 11 March 2024, Ms Baxter expressed support of maintaining the dog on a “fresh food diet”, rather than transitioning to an ultra-processed diet. Mr Baxter stated that her recommendation was based on a comprehensive evaluation of the dogs needs, the demands of his service role and the latest scientific research on canine nutrition.
Ms Baxter stated that the consumption of fresh, minimally processed, whole foods is more digestible and provides higher levels of essential nutrients necessary for dogs’ physical health and cognitive functions. Ms Baxter stated that a fresh food diet can significantly impact a service dog’s longevity, vitality and ability to effectively perform their duties.
Ms Baxter stated that a growing body of scientific research indicates potential benefits of a fresh food diet to the physical health, mental health and behaviour outcomes of dogs. Ms Baxter stated that the nutritional benefits of a fresh food diet is especially critical for service dogs, whose jobs require high levels of focus, discipline and cognitive ability.

Emma Billing, veterinary scientist

In a report dated 11 March 2024, Ms Billing provided a comprehensive assessment of the reasonable necessity of the requested items and their proposed costs.

Dr Melissa Starling, animal behaviourist

In a report dated 19 February 2024, Dr Starling provided a comprehensive assessment of the reasonable necessity of the requested items and their proposed costs.
In relation to diet, Dr Starling stated that, based on her review of published studies and acknowledging that she is not an animal nutritionist, she was not aware of any evidence that clearly shows that raw food diets are superior for dogs to other commercial diets that do not contain raw elements. Dr Starling noted that there is an enormous range of commercial food available for dogs, some of which is raw, and that the cost of commercial diets vary dramatically regardless of their category.

Other evidence

By email dated 4 May 2023, the insurer confirmed that it would pay specified costs associated with the dog, being: purchase of the dog; monthly feed; medical expenses; yearly life insurance; and post-examination medical expenses.
Other evidence includes:
(a)    photographs of damage to the interior of the applicant’s vehicle;
(b)    schedule of proposed costs relevant to the dog, and
(c)    receipts, tax invoices, pricing and quotes for various items and services relevant to the dog.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to recount them in detail in these reasons.
Mr Loukas’ submissions on behalf of the respondent may be summarised as follows:
a.     Mr Loukas acknowledged that the only issue requiring determination is the extent to which the respondent is liable for the cost of the requested items;
b.     Mr Loukas submitted that Bunce v State of New South Wales (Central Coast Local Health District t/as Gosford Hospital) [2020] NSWWCC 62 is authority that the cost of and reasonably associated with the provision and maintenance of an assistance dog is “therapeutic treatment” as defined by s 59, paragraph (b) of the 1987 Act;
c.     Mr Loukas submitted that Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) sets out the matters that the Commission is required to consider in determining whether the requested items are reasonably necessary in the present case;
d.     Mr Loukas submitted that if the requested items do not enhance the therapeutic effect of the dog, they should be regarded as not reasonably necessary. Mr Loukas relied on the decision of Deputy President Michael Snell in Honarvar v Professional Painting AU Pty Ltd [2022] NSWPICPD 12 and the decision of Newcastle Regional Public Tenants Council Incorporated v Grant [2005] NSWWCCPD PD2. By way of example, Mr Loukas submitted that the feeding of the dog does not enhance its therapeutic effect. Mr Loukas submitted that the respondent should not be responsible for feeding or general upkeep of the dog on the basis that does not enhance the therapeutic benefit of the dog;
e.     Mr Loukas said that it is not sufficient to say that the applicant only has the dog because she has the accepted injury. Mr Loukas submitted that the applicant has the trained and accredited part of the dog for therapy purposes as a result of the accepted injury. Mr Loukas said that the applicant otherwise also has “a dog”. Mr Loukas submitted that it is only reasonably necessary that the respondent pay for elements which make the dog a therapy dog beyond a mere companion animal;
f.     in the alternative, Mr Loukas provided an Aide Memoire in relation to the requested items, which denotes those of the requested items that the evidence supports as being either reasonably necessary or not reasonably necessary and those which require some credit or adjustment for payment previously made by the respondent;
g.     Mr Loukas submitted that the quantum of the cost of many of the requested items is unacceptably expensive, extravagant, excessive and unreasonable;
h.     Mr Loukas submitted that the facts of this this particular case, makes it unreasonable that the respondent should be liable to pay for the requested items. In particular, Mr Loukas noted that the insurer has paid and continues to pay for alternative treatment provided by the applicant’s treating general practitioner, psychiatrist and psychologist, in addition to the initial costs of the dog including its purchase, training and accreditation. Mr Loukas submitted that it would place a heavy and unreasonable financial burden on the respondent if it was also required to pay for the requested items, and
i.     Mr Loukas submitted that, having regard to the evidence as a whole, the Commission should find that the requested items are not reasonably necessary, and accordingly, there should be an award in favour of the respondent.
Mr Hammond’s submissions on behalf of the applicant may be summarised as follows:
(a)    Mr Hammond submitted that Diab is relevant to determine whether the requested items are reasonably necessary;
(b)    Mr Hammond submitted that the applicant suffered a life-changing event which permeates her day to day life;
(c)    Mr Hammond submitted that, it being accepted that assistance dog is reasonably necessary treatment for the applicant, then the commonsense approach is that the respondent should be liable to pay all reasonable costs associated with the dog;
(d)    Mr Hammond accepted that not every single cost of the requested items is reasonably necessary and appropriate to be borne by the respondent. Mr Hammond submitted that the Commission should generally accept and give weight to the evidence of Ms Billings and Dr Starling in determining which of the requested items is reasonably necessary in the present case. Mr Hammond referred to the various evidence in relation to the specific requested items. Mr Hammond submitted that, to the extent of any discrepancy between their respective opinions, the evidence of Ms Billings should be preferred because she had the opportunity to speak to the applicant and to assess her needs directly, and
(e)    Mr Hammond accepted that it is appropriate for an appropriate adjustment to be made to take account of any amounts previously paid by the respondent in respect of any particular item.

Mr Loukas’ submissions in reply on behalf of the respondent may be summarised as follows:
(f) Mr Loukas submitted that the respondent accepts that the cost of $70 per week for food for the dog is reasonably necessary. Mr Loukas submitted that is supported by the evidence of Ms Starling who states that $10 per kilogram is reasonable for food for the dog and, even at one kilogram per day, is consistent with a total cost of $70 per week. Mr Loukas submitted that $70 per week for dog food is generous because it is twice the cost of some alternative dog foods which cost approximately $3 per kilogram.

DISCUSSION AND FINDINGS

Legislation and case law

Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, because of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Roche DP, referring to the decision in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose), set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.     It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.     In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo):
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
Roche DP found:
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”

Consideration

The accepted injury and ongoing symptoms

There is no dispute as to the accepted injury. The respondent accepts that the applicant sustained a primary psychological injury with a deemed date of injury of 21 November 2021.
The applicant’s evidence is that, notwithstanding receiving various psychological and psychiatric treatment, she continues to experience significant and debilitating psychological and psychiatric symptoms which impact her daily living.
The applicant’s evidence regarding her ongoing symptoms is supported by the evidence of Dr Anderson and Mr Simpson. On that basis, I accept that the applicant continues to experience significant ongoing debilitating psychological and psychiatric symptoms of her accepted injury.

Treatment

The applicant seeks compensation for the cost of the requested items, being various items or services used or proposed to be used in relation to the dog, including training, veterinary and health items, food and other items. Later in these reasons, I will consider each of the items and services specifically in more detail.
The evidence of Dr Anderson and Mr Simpson supports a finding, and I accept, that the dog was provided to the applicant by direction of a medical practitioner to alleviate the symptoms of the applicant’s accepted injury.
I note that the respondent has previously paid other costs relevant to provision and maintenance of the dog, which included:
(a)    the cost of the dog;
(b)    the cost of the dog’s training and accreditation as a psychiatric assistance dog, and
(c)    the cost of various items and services relevant to the dog.
In Bunce v State of New South Wales (Central Coast Local Health District t/as Gosford Hospital) [2020] NSWWCC 62, Arbitrator Wynyard determined that the cost of and reasonably associated with the provision and maintenance of an assistance dog is “therapeutic treatment” as defined by s 59, paragraph (b) of the 1987 Act.
In State of New South Wales (Central Coast Local Health District) [2020] NSWWCCPD 48 (Bunce), Deputy President Snell dismissed an appeal against Arbitrator Wynyard’s decision and stated that “Without seeking to set the outer limits of the phrase the term ‘therapeutic treatment’ in para (b) of s 59 is, in my view, sufficiently broad to encompass the provision of an assistance dog in an appropriate case”.
I note that the respondent’s counsel accepts that the requested items fall within the definition of “therapeutic treatment” in paragraph (b) of s 59.
I am satisfied that the evidence generally supports a finding that the requested costs broadly relate to the provision and maintenance of the assistance dog with the applicant.
On that basis, I am satisfied that the requested items are reasonably associated with the provision and maintenance of an assistance dog and, accordingly, fall within the definition of “therapeutic treatment” in paragraph (b) of s 59.
That being the case, I must proceed to consider whether the requested items are reasonably necessary as a result of the accepted injury.

The medical evidence

I note that the evidence of Dr Anderson and Mr Simpson indicate that the applicant’s symptoms are so pervasive and debilitating that she is engaged in ongoing treatment by a psychiatrist and psychologist and takes daily psychotropic medication. Dr Anderson supported the applicant continuing to receive such treatment.
The evidence of Dr Anderson and Mr Simpson also support a finding that the provision of an assistance dog to the applicant is reasonably necessary to address the symptoms of her accepted injury. Dr Anderson and Mr Simpson did not express any qualifications or conditions to their opinion in that regard, and they certainly did not indicate that the provision of the assistance dog is reasonably necessary only as an alternative to other psychiatric or psychological treatment. Rather, it appears to me that they unreservedly support the provision of an assistance dog to the applicant in conjunction with other ongoing psychiatric and psychological treatment for the accepted injury.
Having regard to the evidence as a whole, I am satisfied that the provision of the dog to the applicant is appropriate to treat the accepted injury. Further, I find that it is reasonably necessary as a result of the accepted injury, that an assistance dog is provided to the applicant in addition to ongoing psychiatric and psychological treatment.

Provision of an assistance dog in addition to other psychiatric and psychological treatment

Mr Loukas submitted that in determining whether the requested items are reasonably necessary as a result of the accepted injury, the Commission should take into account the fact that the respondent has been generous in paying various costs related to the dog to date. Mr Loukas submitted that the Commission should also take into account the fact that the respondent has paid the costs of the applicant’s consultations and treatment by a psychiatrist and psychologist and that it continues to pay for such ongoing treatment.
With respect, I do not accept Mr Loukas’ submission in that regard. As I stated above, Diab and Bartolo set out the factors which are relevant to my determination of whether the requested items are reasonably necessary because of the injury pursuant to s 60 of the 1987 Act.
In any event, as I have noted above, having particular regard to the medical evidence, I accept that it is reasonably necessary as a result of the accepted injury, that an assistance dog is provided to the applicant in addition to ongoing psychiatric and psychological treatment.

Separation of the therapeutic benefits from the non-therapeutic benefits of the dog

On behalf of the respondent, Mr Loukas submitted that in determining whether the requested items are reasonably necessary as a result of the accepted injury, the Commission should take account of the fact that when the dog is not providing therapeutic benefits, the applicant still effectively has the benefit of the dog as a pet. Mr Loukas noted that the applicant also has other dogs, with the implication that the applicant enjoyed the benefit of dogs as pets.
Mr Loukas sought to make a distinction between, on the one hand, requested items which can be identified as providing a clear therapeutic benefit to the applicant as a result of the accepted injury and, on the other hand, requested items which cannot be identified as providing any clear therapeutic benefit and which relate to the provision and maintenance of the dog as a pet only. Mr Loukas’ primary submission was that only those of the requested items which can be identified as providing a clear therapeutic benefit to the applicant could be reasonably necessary as a result of the accepted injury. Mr Loukas submitted that those of the requested items which cannot be identified as providing a clear therapeutic benefit cannot be reasonably necessary as a result of the accepted injury.
With respect, for the reasons stated below, I do not accept Mr Loukas’ submission.
As I stated earlier, the evidence of Dr Anderson and Mr Simpson supports a finding, and I accept, that the dog was provided to the applicant by direction of a medical practitioner to address the symptoms of the applicant’s accepted injury. Further, the evidence supports a finding that the requested items broadly relate to the provision and maintenance of an assistance dog to the applicant.
There is no evidence which supports a finding that the applicant has specific benefit of the dog as a pet, as distinct from its therapeutic benefit. To the contrary, the evidence strongly implies that the sole purpose and benefit of the provision of the dog to the applicant is for therapeutic purposes. Further, there is no evidence which distinguishes between therapeutic and non-therapeutic elements of the dog nor the requested items.
In the circumstances and considering the evidence as a whole, I consider that all of the requested items relate to the provision or maintenance of an assistance dog to the applicant for therapeutic purposes. Further, I am not satisfied that it is appropriate to make any apportionment of the costs of the requested items on the basis of any therapeutic or non-therapeutic benefit to the applicant.

The requested items

The Application states that, in respect of the various requested items, the applicant claims the total amount of $1,035.19 in respect of past expenses and the total amount of $29,745.29 in respect of future expenses.
On behalf of the respondent, Mr Loukas submitted that various requested items are not reasonably necessary, and further, that the claimed cost of the various requested items is unacceptably excessive and unreasonable.
By consent, Mr Loukas provided an Aide Memoire, which effectively summarises certain evidence and the respondent’s position in relation to the various requested items. Mr Loukas submitted that the Aide Memoire denotes those of the requested items, and their respective claimed cost, that the evidence supports as being either reasonably necessary or not reasonably necessary and those which require some credit or adjustment for payment previously made by the respondent.
On behalf of the applicant, Mr Hammond conceded that the claimed cost of certain of the requested items is not supported by the evidence. Mr Hammond submitted however, that the Commission should prefer the evidence of the applicant’s witnesses to the extent of any inconsistency between the evidence of the witnesses. Mr Hammond accepted that the respondent should receive credit for any payment or part-payment that it has already made in respect of any of the requested items.
The evidence of Dr Graham, veterinarian, supports a finding that the following items are reasonably necessary: regular ongoing regular veterinary care including preventative health care, including parasite control and vaccination; a high quality diet; regular training management; a coat to protect him from the elements; a method of safe and efficient transportation in motor vehicles, with a crate or enclosed space being “Gold standard”; various items such as a durable approved lead and harness and other items; regular visits to an accredited trainer and behavioural consults with a veterinarian; various training games and toys; and a permanent or semi-permanent enclosure; training and assessment to be accredited as a psychiatric assistance dog.
I have considered the evidence of the witnesses, having particular regard to their respective opinions as to the appropriateness, effectiveness and reasonableness of the various requested items to maintain the provision of the dog to the applicant as a service dog, available alternatives and the relevant costs.
The evidence of dog trainer, Ms Devenish-Meares, supports a finding that the following items are reasonably necessary: training and accreditation as an assistance dog under the Mind Dog Program; ongoing regular training and medical intervention; ongoing regular medical clearances; training aids; operational equipment; medication; and grooming; a certified vehicle crate for transport.
In relation to food for the dog, there appears to be a consensus of opinion that a reasonably high quality diet which is nutritionally sound is appropriate. Both canine nutritionists, Mr Bennnet and Ms Baxter generally supported a largely fresh food diet. Dr Starling is not a qualified animal nutritionist, however she noted that there is an enormous range of commercial dog foods with varying costs. Mr Loukas stated that the respondent is prepared to concede that the amount of $10 per day, or $70 per week, is reasonably necessary to maintain the dog. Mr Loukas calculated that amount based on a cost of $10 per kilogram of food (and one kilogram of food consumed per day), which he submitted is a generous concession having regard to the availability of some commercial dog foods for a considerably lesser cost.
Ms Billing and Dr Starling each provided a detailed opinion regarding the various requested items. I note that Ms Billing spoke with the applicant regarding her requirements. Dr Starling’s opinion was formed on the basis of a file review.
I generally note that there is some divergence of opinion between the various witnesses as to the reasonable necessity of various requested items to treat the accepted injury, and the reasonableness of their respective cost. However, there is also some general consensus of opinion in respect of some of the requested items.
I will now turn to consider the various requested items more specifically.

Past expenses

K9 Pro dog leashes: the applicant claims the amount of $75. There is a general consensus of opinion that fit for purpose leashes are reasonably necessary, however it is acknowledged that leashes are available at a variety of price points, which may reflect differences in quality of the product. Cheaper priced alternative products were noted. Dr Starling referred to a leash priced at $37.95. The applicant claims more than one leash. I consider that a variety of leashes would likely be appropriate to deal with the range of situations that the applicant and the dog would encounter. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Ziwipeak dried feed: the applicant claims the amount of $70.69. There is a general consensus of opinion that such treats are reasonably necessary. Dr Starling stated that such treats are popular amongst professionals for effective training. It was commonly acknowledged that alternative treats are available at a variety of price points however such alternatives may be less convenient to use. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Boarding kennels feed: the applicant claims the amount of $55. I refer to the evidence above in relation to dog food. There is a general consensus of opinion that food is reasonably necessary although it is acknowledged that it is difficult to assess the value because there is no information about the weight of the product. However, I consider that the cost is within a normal and likely price range. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Dr. B’s Barf combo dog food: the applicant claims the amount of $34. I refer to the evidence above in relation to dog food. There is a general consensus of opinion that food is reasonably necessary although it is acknowledged that it is difficult to assess the value because there is no information about the weight of the product. However, I consider that the cost is within a normal and likely price range. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Damage to the interior of the applicant’s car: the applicant claims the amount of $800 in respect of damage to the interior of her vehicle, which was incurred by the dog when was not securely restrained. With the exception of the applicant, there is a general consensus that such damage is unrelated to the service capabilities of the dog. Whilst it does not appear to be in dispute that the dog caused the damage to the interior of the applicant’s vehicle, it appears to me to be so far removed from being reasonably associated with therapeutic treatment that I am unable to accept that such expense is reasonably necessary to treat the accepted injury. On that basis, I do not accept that the item is reasonably necessary.

Future expenses

Annual vaccination Cprotech C3 and 2i: the applicant claims the amount of $82. There appears to be a general consensus of opinion that such annual vaccination is reasonably necessary. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Annual vaccination Protech Bronchishield III: the applicant claims the amount of $40. Dr Starling stated that this is considered a “non-core” vaccination, which means that it is only recommended for dogs that are at particular risk of contracting specific infections. Dr Starling noted that the vaccination provides protection against Canine Kennel Cough and is often required for a dog to enter environments where many dogs pass through, such as boarding kennels. Having regard to the duties of the dog, I consider that it would be likely to be exposed to a range of environments, some of which may present an infection risk. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.

Annual Proheart SR12 injection: the applicant claims the amount of $159.77. There appears to be a consensus of opinion that it is reasonably necessary for the dog to have heartworm preventative medication, although it was noted that certain parasite control treatments also provide heartworm prevention. Having regard to the evidence as a whole, in particular that parasite control treatments can provide heartworm medication, I do not accept that the item is reasonably necessary.
Flea/tick/worm control: the applicant claims the amount of $400 per annum. There appears to be a consensus of opinion that parasite control is reasonably necessary, although there is a slight variation in the estimated cost of this item. I consider that that claimed cost is with a normal and likely price range. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Bravecto chew 20-40kg (3 pack): the applicant claims the amount of $89.99. Dr Starling stated that this item is a flea and tick prevention medication and it is not required in addition to other parasite control referred to above. I accept Dr Starling’s evidence in that regard. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
ParaGard dog 20kg (3 pack): the applicant claims the amount of $29.99. Dr Starling’s evidence is that this item is a worming treatment and she questioned if it is an overlap with the previous item. I consider that it is not required in addition to the parasite control which is referred to above. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Six-monthly MindDog clearance health check: the applicant claims the amount of $82 for each six-monthly health check, amounting to a total of $164 per year. There appears to be a consensus of opinion that regular health checks are reasonably necessary. Further, Ms Billing and Dr Starling acknowledge that a health check is required for the dog to operate as a service dog, although Dr Starling queried if it was required on an annual basis only. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Two-monthly raw feed supplies by Butcher Dog and training aids including treats, supplements and variety of bones etc: The applicant claims the amount of $2,564. I refer to the evidence above in relation to dog food. There is a general consensus of opinion that food is reasonably necessary although it was stated that it is difficult to assess the value of this item. I note that an invoice included in the applicant’s evidence states the cost for two months supply of raw dog food including treats and bones to total $2,564. My calculation is that would equate to approximately $295 per week for dog food and treats. That seems to me to be an excessive amount for one dog and I query whether the amount claimed in respect of this item is an error on the part of the applicant. Mr Loukas stated that the respondent is prepared to concede that the amount of $10 per day, or $70 per week, is reasonably necessary to maintain the dog. I consider that $70 per week is within a normal, likely and reasonable price range for this item. Having regard to the evidence as a whole, I accept that the item is reasonably necessary, subject to the respondent being required to pay only the reasonable costs of the applicant in that regard.
MindDog PAT assessment: the applicant claims the amount of $300. There appears to be a consensus of opinion that a PAT Assessment is necessary for the dog to operate as an assistance dog. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
MindDog reaccreditation certification: the applicant claims the amount of $250. There appears to be a consensus of opinion that a reaccreditation certification with MindDog is necessary for the dog to operate as an assistance dog. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
MindDog training: the applicant claims the amount of $60 per session. There appears to be a consensus of opinion that the training is necessary for the dog to operate as an assistance dog. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Extra-large Barney Golden Teddy orthopaedic bed cover: the applicant claims the amount of $545. This item is not supported by Ms Billing nor Dr Starling. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Car travel enclosure: the applicant claims the amount of $1,620. Dr Graham and Ms Davenish-Meares supported this item. It appears that both Ms Billing and Dr Starling accepted that some form of car restraint is reasonably necessary to transport a dog. Dr Starling noted the availability of vehicle harnesses as a less expensive alternative, although she noted that they may not be suited to large dogs. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Stationary enclosure: the applicant claims the amount of $5,298 plus $680 installation. Dr Graham stated that the dog requires a permanent or semi-permanent enclosure. However, this item is not supported by Ms Billing nor Dr Starling. They both considered that a crate would be a suitable alternative. There is no evidence as to the particular circumstances of the applicant which demonstrate and explain a particular reason for this item. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Yeti water cooler, 22.7 litre: the applicant claims the amount of $399.95. This item is not supported by Ms Billing nor Dr Starling. There is no evidence as to the particular circumstances of the applicant which demonstrate and explain a particular reason for this item as opposed to a cheaper alternative. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Yeti travel food cooler: the applicant claims the amount of $299.95. There is no evidence as to the particular circumstances of the applicant which demonstrate and explain a particular reason for this item as opposed to a cheaper alternative. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Two x Boomer dog bowl: the applicant claims the amount of $69.95. Ms Billing and Dr Starling accepted that a bowl may be appropriate however stated noted that there are cheaper alternatives. Ms Billing stated that there is no real requirement for bowls to be insulated. I note that the respondent has provided a price comparison of a significantly cheaper alternative. I accept that two bowls, one for food and another for water are reasonably necessary for the dog. I consider that, whilst the claimed amount for the bowls is towards the upper limit of what is a reasonable cost, it is nevertheless within a normal price range. Having regard to the evidence as a whole, I accept that this item is reasonably necessary.
Driza-Bone dog coat: the applicant claims the amount of $139. There appears to be a consensus of opinion that the dog coat is reasonably necessary, noting that the dog is a short-haired breed and is likely to be exposed to the elements. Dr Starling accepted that the claimed cost is appropriate. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Metal mesh pooper scooper: the applicant claims the amount of $139.99. This item is not supported by Ms Billing nor Dr Starling. They both considered that this item is not essential. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Security spotlight camera: the applicant claims the amount of $291.55. This item is not supported by Ms Billing nor Dr Starling. They both considered that this item is not necessary to maintaining the dog. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Eufy Cam Homebase 3 (2 pack): the applicant claims the amount of $958. This item is not supported by Ms Billing nor Dr Starling. They both considered that this item is not necessary to maintaining the dog. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Dr Lisa corner bowl: the applicant claims the amount of $95. This item is not supported by Ms Billing nor Dr Starling. They both considered that this item is not essential. I note that I have already accepted two bowls as being reasonably necessary. No explanation has been provided which explains why another two bowls is required. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Nina Ottoson puzzle toy: the applicant claims the amount of $54. This item is not supported by Ms Billing nor Dr Starling. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Extra-large Kong: the applicant claims the amount of $36.99. This item is not supported by Ms Billing nor Dr Starling. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Dr Lisa lick mats: the applicant claims the amount of $17. This item is not supported by Ms Billing nor Dr Starling. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Dr Lisa treat pouch: the applicant claims the amount of $60. There appears to be a consensus of opinion that a treat pouch is reasonably necessary, noting that the dog is a undergoing training. However, both Ms Billing and Dr Starling noted that cheaper alternatives are available but vary in features. I consider that, whilst the claimed amount for the treat pouch is towards the upper limit of what is a reasonable cost, it is nevertheless within a normal price range. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Dog buttons: the applicant claims the amount of $49.99. The applicant’s evidence is that the dog will be trained to alert 000 through button commands and that he requires training aids to support his learning to perform that task. Dr Starling appeared to acknowledge that the item could be considered as reasonably necessary although she noted that she had inadequate details to properly assess this item. Ms Billing also expressed uncertainty as to how the item would assist. I am persuaded by the applicant’s evidence in this regard and I consider that the dog buttons would be a reasonably necessary training aid to train the dog to perform an important assistance function. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Monthly supplied treats from Maggie’s Pet Co: the applicant has not specified any amount claimed in respect of this item. Ms Billing and Dr Starling accepted that treats are a valuable training aid. However, I note that treats are included in the raw food supplies which are referred to above. There is no evidence nor explanation as to why these additional treats are required. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Guide Dogs life insurance: the applicant claims the amount of $1,005.60. Ms Billing expressed the opinion that Guide Dogs Life Insurance is appropriate. Dr Starling considered that it is not necessary to the function of the dog. I am not persuaded that life insurance is reasonably necessary to treat the accepted injury. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Six-monthly behaviouralist visits by Ms Billing: the applicant claims the amount of $360 per visit plus $29 for a report. Ms Billing’s evidence is that she is training the dog to become accredited with MindDog. Ms Billing stated that continued training is necessary for the immediate future to ensure he meets MindDog accreditation. I consider that the evidence of Ms Billing is persuasive in this regard as I accept that she would be knowledgeable of the dog’s particular requirements. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Behavioural medications (Gabapentin and Sertraline) prescribed by Ms Billing: the applicant claims the amount of $600 per annum. Ms Billing’s evidence is that the behavioural medications are reasonably necessary. I consider that the evidence of Ms Billing is persuasive in this regard as I accept that she would be knowledgeable of the dog’s particular requirements. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Cytopoint injections: the applicant claims the amount of $156.52 per injection. I note a veterinary invoice in respect of Cytopoint injection administered to the dog in January 2024. Having regard to the evidence as a whole, I accept that the item is reasonably necessary.
Bold Lead Designs harness: the applicant claims the amount of $2,640.05. This item is not supported by Ms Billing nor Dr Starling. It is unclear from the evidence why this item is reasonably necessary as opposed to cheaper alternatives stated by Dr Starling. I am not satisfied that there is persuasive evidence in support of this particular item which appears to be expensive. Having regard to the evidence as a whole, I do not accept that the item is reasonably necessary.
Ongoing grooming: The applicant claims the amount of $90 per grooming session. Ms Billing and Dr Starling both effectively expressed the opinion that, because the dog is a short-haired breed, the dog is likely to have relatively low grooming requirements and that he could be groomed by any able-bodied person. On that basis, neither of them supported this item. Considering the evidence as a whole, I do not accept that the item is reasonably necessary.

SUMMARY

In summary, the Commission determines:
(a)    In relation to the claim for past expenses, the following requested items are reasonably necessary as a result of the accepted injury:
(i)K9 Pro Dog leashes;
(ii)Ziwipeak dried feed;
(iii)Boarding kennels feed, and
(iv)Dr B’s Barf combo dog food.
(b)    In relation to the claim for past expenses, the following requested items are not reasonably necessary as a result of the accepted injury:
(i)Damage to the interior of the applicant’s car: the applicant claims the amount of $800.
(c)    In relation to the claim for future expenses, the following requested items are reasonably necessary as a result of the accepted injury:
(i)annual vaccination Cprotech C3 and 2i;
(ii)annual vaccination Bronchishield III;
(iii)flea/tick/worm control;
(iv)six-monthly MindDog clearance health check;
(v)raw feed supplies by Butcher Dog;
(vi)MindDog PAT assessment;
(vii)MindDog reaccreditation certification;
(viii)MindDog training with Good Dogma;
(ix)car travel enclosure;
(x)2 Boomer dog bowl;
(xi)Driza-Bone dog coat;
(xii)Dr Lisa treat pouch;
(xiii)dog buttons;
(xiv)six-monthly behaviouralist visits by Ms Billing;
(xv)behavioural medications (Gabapentin and Sertraline),and
(xvi)Cytopoint injections.
(d)    In relation to the claim for future expenses, the following requested items are not reasonably necessary as a result of the accepted injury:
(i)annual Proheart SR12 injection;
(ii)Bravecto chew 20-40kg;
(iii)Paragard dog 20kg (3 pack);
(iv)extra-large Barney Golden Teddy orthopaedic bed cover;
(v)stationary enclosure;
(vi)Yeti water cooler;
(vii)Yeti travel food cooler;
(viii)pooper scooper;
(ix)Spotlight camera;
(x)Eufy Cam Homebase 3 (2 pack);
(xi)Dr Lisa corner bowl;
(xii)Nina Ottoson puzzle toy;
(xiii)extra-large Kong;
(xiv)Dr Lisa lick mats;
(xv)monthly supplied treats from Maggie’s Pet Co;
(xvi)Guide Dogs life insurance;
(xvii)Bold Lead Designs harness, and
(xviii)ongoing grooming.
On that basis, the Commission orders the respondent to pay the following costs in accordance with s 60 of the 1987 Act:
(a) In relation to the claim for past expenses:
(i)K9 Pro Dog leashes: $75;
(ii)Ziwipeak dried feed: $70.69;
(iii)Boarding Kennels feed: $55, and
(iv)Dr B’s Barf combo dog food: $34.
(b) In relation to the claim for future expenses:
(i)Annual vaccination Cprotech C3 and 2i: $82;
(ii)Annual vaccination Bronchishield III: $40;
(iii)flea/tick/worm control: $400 per annum;
(iv)six-monthly MindDog clearance health check: $164 per year;
(v)raw feed supplies by Butcher Dog: $70 per week;
(vi)MindDog PAT assessment: $300;
(vii)MindDog reaccreditation certification: $250;
(viii)MindDog training with Good Dogma: $60 per session;
(ix)car travel enclosure: $1,620;
(x)2 Boomer dog bowl: $69.95;
(xi)Driza-Bone dog coat: $139;
(xii)Dr Lisa treat pouch: $60;
(xiii)dog buttons: $49.99;
(xiv)six-monthly behaviouralist visits by Ms Billing: $200 per visit plus $30 in respect of any script fee;
(xv)behavioural medications (Gabapentin and Sertraline): $600 per annum, and
(xvi)Cytopoint injections: $156 per injection.

[2024] NSWPIC 205

15 April 2024