Boulaine v Giorgio Armani Australia Pty Ltd Summary

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Boulaine v Giorgio Armani Australia Pty Ltd [2024] NSWPIC 284
APPLICANT:	Laura Boulaine
RESPONDENT:	Giorgio Armani Australia Pty Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	29 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claims for injuries to both knees, left shoulder, neck, back, and secondary psychological condition (accepted injuries); claim for treatment expenses pursuant to section 60 (physiotherapy treatment, exercise physiology, and psychological treatment); consideration of applicant’s statement, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the treatment expenses are reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020, if so, the extent to which the treatment is required and the frequency in relation to which the treatment is required; Rose v Health Commission (NSW), Diab v NRMA Limited, and Murphy v Allity Management Services Pty Limited considered; Held – physiotherapy treatment, exercise physiology and psychological treatment are reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020; she is to receive payment of $675 in past treatment expenses, re-imbursing to her amounts previously paid by her for psychological treatment and exercise physiology; she is to be afforded six months of physiotherapy treatment three times per week, six months of exercise physiology twice per week, and six months of psychological appointments once per month; if she requires treatment for a longer period, she will need to make an appropriate claim upon the respondent in this regard; the Commission currently makes no determination regarding the applicant’s entitlements following the periods referred to; awards for the applicant accordingly.
DETERMINATIONS MADE:	The Commission determines: 1. Physiotherapy treatment is reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020. She should be afforded six months of physiotherapy treatment three times per week. If she requires physiotherapy treatment for a longer period, she will need to make an appropriate claim upon the respondent in this regard. No determination is made regarding the applicant’s entitlements after six months. 2. Exercise physiology is reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020. She should be afforded six months of exercise physiology twice per week. If she requires exercise physiology for a longer period, she will need to make an appropriate claim upon the respondent in this regard. No determination is made regarding the applicant’s entitlements after six months. 3. Psychological treatment is reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020. She should be afforded six months of psychological appointments with Rod once per month. If she requires psychological treatment for a longer period, she will need to make an appropriate claim upon the respondent in this regard. No determination is made regarding the applicant’s entitlements after six months. The Commission orders: 4. The respondent is to pay the applicant the amount of $675 pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in relation to re-imbursement to her of the following past treatment expenses paid by her: (a) $250 to Janine Rod on 1 June 2023, and (b) $425 to Akbar Yasin on 25 October 2023. 5. The respondent is to pay for the costs of and incidental to the applicant undergoing the following future treatment, pursuant to s 60 of the 1987 Act: (a) six months of physiotherapy treatment three times per week; (b) six months of exercise physiology twice per week, and (c) six months of psychological appointments with Janine Rod once per month.

STATEMENT OF REASONS

BACKGROUND

Laura Boulaine (the applicant) is 54-years-old. She was employed by Giorgio Armani Australia Pty Limited (the respondent) from November 2018. She worked at its Bondi Junction boutique as well as at its Elizabeth Street Sydney David Jones outlet, as a salesperson.
On 18 December 2020, she was injured in the respondent’s stockroom when a heavily packed storage rack of clothes fell forward onto her, knocking her to the ground. She injured both knees, her left shoulder, her neck, and her back. She subsequently developed a secondary psychological condition.
The respondent has accepted that the applicant sustained these injuries and conditions, and it continues to pay her weekly benefits compensation as she remains incapacitated for employment. It has also accepted that as a result of her injuries, she has a whole person impairment of 31%, and as a result, it has compensated her accordingly pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent further accepts liability for the applicant’s ongoing reasonably necessary treatment needs regarding her accepted injuries and conditions, pursuant to s 60 of the 1987 Act. However, it has issued a number of notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), denying liability in relation to specific treatment modalities requested by the applicant, alleging those modalities to not be reasonably necessary treatment. The notices issued in this regard include:
(a)    a notice issued on 18 January 2023 denying liability for ongoing psychological treatment with Ms Janine Rod (Rod);
(b)    a notice issued on 19 January 2023 denying liability for exercise physiology claimed by the applicant, and
(c)    a notice issued on 6 December 2023 denying liability for ongoing physiotherapy treatment claimed by the applicant.
The applicant has therefore lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission), requesting from it orders with respect to her need for the three treatment modalities referred to in these notices.
The ARD initially also requested orders with respect to other treatment modalities, as well as domestic assistance, which had been claimed by the applicant and the reasonable need for which had been denied by the respondent. However, during the Commission’s preliminary conference on 6 March 2024 and during the Commission’s conciliation/arbitration on 5 April 2024, the applicant clarified the orders that she sought from the Commission in these proceedings as only being in relation to the three treatment modalities referred to at paragraph 4 above.

ISSUES FOR DETERMINATION

The parties therefore agreed at the conciliation/arbitration that the issues in dispute in these Commission proceedings are:
(a) whether physiotherapy treatment is reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 18 December 2020 – if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required;
(b) whether exercise physiology is reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 18 December 2020 – if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required, and

(c) whether psychological treatment with Rod is reasonably necessary medical treatment as a result of the applicant’s accepted injuries on 18 December 2020 – if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required.

PROCEDURE BEFORE THE COMMISSION

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.
A lengthy conciliation conference was held in the dispute on 5 April 2024. On that occasion, the applicant was represented by Mr Paul Stockley of counsel, instructed by Ms Comans, and the applicant was also present. Mr Fraser Doak of counsel appeared for the respondent, instructed by Ms Doyle, and Ms O’Grady from the respondent’s insurer also appeared.
The dispute did not resolve during the conciliation conference, and therefore proceeded to an arbitration hearing. The applicant provided oral submissions at the arbitration hearing, and due to time constraints on 5 April 2024, a timetable was then put into place for the provision of further written submissions.
All written submissions have now been provided and considered by me, and I thank the parties in this regard.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission (there being no objection taken by either party to the documents being admitted into evidence) and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents – attached to the respondent’s Application to Admit Late Documents dated 28 February 2024, and
(c)    the applicant’s Application to Admit Late Documents dated 15 February 2024 (applicant’s AALD) and attached documents,

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided a statement dated 19 October 2023 (found at page 6 of the ARD).
The applicant says that she continues to “experience issues with pain and lack of strength in my right ankle, leg, lower back, left shoulder and neck”. She also says that her mental health has been affected due to her not being able to participate in the activities that she used to enjoy.
Her general practitioner, Dr Lewis, has recommended that she undergo psychological treatment and exercise physiology treatment. Due to the respondent refusing to approve for her to undergo these treatment modalities, she has already paid some amounts herself in order to undergo them.
Her physiotherapist, Jade Reid (Reid), has also recommended ongoing physiotherapy “to build strength and capacity and reduce my pain levels”. As at the date when she signed her statement, the respondent was still paying for her to undergo physiotherapy treatment. The treatment consisted of “machine Pilates for 20 minutes, and then massage therapy to ease my pain levels”. The treatment had also been recommended by her sport and exercise physician, Associate Professor Robinson.
She says that she has seen the benefit upon her symptoms and her condition of her treatment with Associate Professor Robinson and her psychologist, Rod. She says that she continues to require their assistance, and she is worried about not being able to see Rod or have exercise physiology treatment on an ongoing basis. She says if so:
“I feel that this will be a backwards step in my recovery when I was previously feeling optimistic with the support I was receiving. The treatment in dispute gives me a benefit”.
The medical evidence relied upon by the applicant is extensive and been provided by many different medical and allied health practitioners. I have reviewed the evidence is in its entirety but find that a substantial proportion of it either has limited relevance to the issues which I need to determine (see paragraph 7 above) regarding the treatment modalities required by the applicant, or deals with treatment modalities not now claimed by the applicant in these Commission proceedings (see paragraph 6 above). I will detail the evidence which I consider to be relevant, as well as any other evidence which I am specifically directed to during the parties’ submissions.

There are six reports from Associate Professor Robinson in evidence. The first report is dated 14 March 2023 and found at page 126 of the ARD. In the report, the doctor takes an uncontroversial history of the applicant’s 18 December 2020 injury and notes that the applicant still has “issues with the right knee, right cervical spine, right shoulder and low back”. The doctor specifically examines and assesses those areas, and finds:
(a)    in relation to the right knee – quadriceps wasting, reduced range of movement, medial joint line tenderness, poor single leg stance, inability to straighten, pain in the posterior aspect along with the medial and lateral columns, as well as pain at the inferior patella;
(b)    in relation to the right shoulder – pain in the right anterior and lateral shoulder, rotation restrictions, as well as positive impingement;
(c)    in relation to the cervical spine – pain and stiffness, reduced range of movement globally, limited forward and lateral flexion, reduced extension and rotation, as well as increased tone of the upper trapezius, scalene, pectoralis, and subscapularis muscles; and
(d)    in relation to the lumbosacral spine – severe pain to sit, pain and tightness radiating down both legs and into the right hip, paraspinal muscle spasm, tenderness and tightness around the abdominal muscle insertions into the iliac crests, as well as increased muscle tone and tenderness.
The only treatment referred to in the report is the applicant’s ongoing physiotherapy treatment. The doctor advises that “given Laura’s issues are so long standing and there are multiple areas affected, I feel it will be a significant amount of time before we can achieve a return to full function, which is possible from the shoulder, neck and back point of view”.
Associate Professor Robinson’s next report (found at page 133 of the ARD) is dated 6 April 2023, and it provides a more detailed treatment plan for the applicant, advising:
“She has been seeing Matt weekly for hands on physiotherapy and Jade twice weekly for a progressive exercise program. She is certainly feeling better after each treatment and is feeling stronger…I have communicated with Matt today and he is happy with her progress at this point. She is improving her strength but she still has a significant weight [sic] to go…Laura was very emotional to date, crying and at times yelling in frustration. She definitely is not coping with her chronic pain and I would strongly recommend that she return to psychological counselling…My treatment plan involves ongoing quadriceps strengthening and trying to normalise her gait and do away with the crutches as soon as possible…She will continue on with physiotherapy with Matt Barker on a weekly basis and her strengthening sessions with Jade…Finally I have sent a request for approval for reintroduction of the psychological counselling to the insurer and this will need to be in the moderate to longer term based on Laura’s condition today. I have provided her with a referral to her psychologist Janine Rod…In terms of her shoulder, neck and low back pain, she is obtaining relief from the physiotherapist and this is lasting variable amounts of time, but is a significant improvement on her situation of twelve months ago. As she continues to improve her strength I feel comfortable that she will gain every increasing periods of relief after treatment.”
In Associate Professor Robinson’s next report dated 25 July 2023 (found at page 140 of the ARD), the doctor obtains a treatment update from the applicant that her ongoing physiotherapy had led to “excellent benefit with less pain and spasm in her neck and increased range of movement of the cervical spine”. She had also undertaken some exercise physiology and was “motivated to continue to strengthen and already has a feeling of improve strength via improved recruitment of muscle motor units at this stage”. The doctor then undertakes a full examination and assessment of the applicant, and concludes:
“Laura has high needs. There needs to be significant focus on her strengthening and given that she has more than six areas of injury, she should not be expected to manage with one physiotherapy and limited strengthening sessions. She has been undertreated for some time, and therefore has become extremely deconditioned and lost a massive amount of strength, as evidenced by the exercise physiologist’s assessment where the quadriceps strength on the right was only 20% of the normal left side…I would support Laura continuing with twice weekly exercise physiology sessions, which I believe strongly should be supported by the insurer. She should continue with the weekly manual physiotherapist and ideally with the physiotherapy guided Pilates and strengthening. They are all playing a role and improving Laura’s motivation and desire to get better. This is the first time I have felt this after seeing her on a number of occasions…I note that the recent letter from the physiotherapist has shown that there has been considerable improvement in lower limb strength in terms of ability to complete sit to stand and improve her balance. There has also been improvement in the range of motion of her knee in terms of improved extension and the range of motion in her cervical spine and shoulder which have shown objective improvements. Laura has subjective improvement in her symptoms overall.”
Associate Professor Robinson then provides a report dated 26 August 2023 to the applicant’s solicitors (found at page 152 of the ARD). The report advises that the doctor first consulted with the applicant on 14 March 2023, when the doctor spent 1.5 hours reviewing her history and performing an extensive examination. The doctor had seen her twice since.
The doctor describes the applicant as an extremely anxious woman, with lumbar and cervical pain and muscle spasm, as well as right knee pain, stiffness, and loss of movement. The applicant’s left shoulder impingement had resolved. She however was “severely deconditioned, extremely fearful and anxious, with a poor understanding of chronic pain”. As a result, the doctor believes that “it will take considerable intervention and subsequent strengthening in a coordinated approach by providers to correct these patterns”. The doctor summarises the approach to be taken in this regard:
“Exercise physiology alone, psychology alone and other individual interventions do not tend to result in significant long-term benefits. Cognitive functional therapy (CFT) is a patient-centred approach that facilitates patients to ultimately self-manage by targeting their individual pain-related cognitions, emotions, and behaviours that contribute to their pain and disability and is provided by trained physiotherapists. A key distinguishing feature of CFT, compared with other psychologically informed approaches such as cognitive behavioural therapy, is that CFT addresses pain provocative movement patterns that contribute to low back pain, such as protective muscle guarding (eg gripping and holding) and movement avoidance…In summary, I would strongly recommend that Ms Boulaine receives ongoing specialist physiotherapy with a CFT approach, exercise physiology and addition of psychological counselling over the next 6-9 months. During this period she should obtain an exercise bike, and gradually increase a program of home exercise including the use of the stationary bike, home strengthening exercises guided by the EP and physiotherapist, with a gradual reduction in hands on physiotherapy and Exercise physiology treatment.”
The doctor notes that the physiotherapy that the applicant was then undergoing per week was one hands-on manual physiotherapy session, one 20-minute physiotherapy guided Pilates session, and one 40-minute physiotherapy guided exercise session. The doctor also notes that these physiotherapy sessions over the previous few months had improved the applicant’s pain levels, improved her movement patterns, and lessened her physical activity limitations. She was also becoming less pain avoidant.

The doctor further notes that the applicant had recently undertaken four exercise physiology sessions, and had reported improved strength and mobility.
In relation to psychological treatment, the doctor notes the applicant’s considerable psychological counselling in the past, but also notes that such counselling was not in the context of appropriate cognitive functional therapy (CFT) treatment. The applicant remains “severely affected by anxiety and depression” and it is the doctor’s “strong opinion that she requires regular input to assist with emotional regulation and management of anxiety and depression, which will only benefit her ongoing physical rehabilitation”.
In Associate Professor Robinson’s next report dated 24 October 2023 (found at page 161 of the ARD), the doctor provides an update regarding the physiotherapy that the applicant was then undergoing per week:
(a)    the weekly manual therapy with Matt Barker (Barker) had been invaluable;
(b)    the physiotherapy guided Pilates program with Reid was working on her strength and endurance – she could however transition from this program to two personal training sessions at a gym per week, and
(c)    she was also seeing a third physiotherapist who walked with her outside (necessary to catch her should she fall over due to her balance issues).
Associate Professor Robinson’s most recent report is dated 1 February 2024 (found at page 1 of the applicant’s AALD). The doctor is especially critical of the respondent’s insurer’s decision to deny further liability for physiotherapy treatment, advising:
“She is now not receiving any treatment for her ongoing injuries and disabilities. The decision to cease treatment was based on the opinion of a physiotherapist, who talked to various people over the phone. There was no physical in person assessment of the patient…I find it difficult to believe that a physiotherapists opinion from telephone conversations would be preferred to that of a very experienced, highly regarded specialist medical practitioner who has documented evidence of significant improvement with the current treatment strategy”.
The doctor notes that the applicant made “considerable improvement” with the treatment approach recommended by the doctor since the doctor first consulted with her 10 months earlier. Her pain levels, her gait, and her mobility had improved. However, since she had ceased physiotherapy treatment, the symptoms had deteriorated, especially “stiffening through the knee, low back, calf and thorax”.
The doctor recommends:
(a)    ongoing "weekly physiotherapy” with Barker – in order to “continue the obvious improvement that Laura has demonstrated over the last 10 months” – the physiotherapy “should involve guided strengthening of the cervicothoracic region, the shoulder girdle and hip girdle along with the lower limbs, in combination with truncal stability exercises, particularly focusing on the deep thoracic stabilisers and the lumbopelvic region”;
(b)    a monitored home exercise program;
(c)    attending a swimming pool twice per week, and
(d)    against the respondent’s insurer’s suggestion of attending a pain physician, advising:
“Laura has seen many pain physicians and does not wish to have further injections or further medication prescriptions. She would prefer to continue on a route which involves strengthening and mobility exercises. I agree with her 100%, as I do not believe that injections or medication have a role in her current condition since she has no pain [emphasis in original].”
The applicant also relies upon two reports from Dr Bodel. The first report is found at page 61 of the ARD and is dated 22 February 2022 (it followed the applicant’s one and only consultation with the doctor on that date). It was obtained by the applicant’s solicitors to found her claim pursuant to s 66 of the 1987 Act, which eventually resolved with an agreement that she suffered from 31% whole person impairment (see paragraph 3 above).
The doctor takes an uncontroversial history of the applicant’s injury on 18 December 2020, involving her knees, back, neck, and left shoulder. He also takes a history of treatment including radiological tests, cortisone injections into her left shoulder and right knee, physiotherapy, a right knee arthroscopy on 10 March 2021, further post-operative physiotherapy, further injections, and a referral to a pain specialist (Dr Yu). He summarises his examination findings as follows:
“This lady has mechanical symptoms in the neck and the back, rotator cuff pathology in the left shoulder, very severe pain and stiffness in the region of the right leg with quite gross wasting of the right thigh and possible arthrofibrosis as a consequence of the injury to that knee and the surgery on that knee. She also has mild restrictions of left knee movement as well.”
While the report largely focuses upon the degree of the applicant’s whole person impairment, when specifically asked regarding the applicant’s ongoing treatment needs, the doctor advises:
“This lady does require extensive ongoing treatment, both physical and possibly also psychological. It is difficult to estimate the costing of this as there is a very significant problem with the right knee and the exact cause of that problem is uncertain. I would estimate approximately $2000-2500 treatment costs per year for the next two years to optimise her outcome.”
By a letter dated 5 July 2023, the doctor is asked by the applicant’s solicitors to provide a supplementary report (which is dated 5 July 2023 and found at page 138 of the ARD) regarding her ongoing treatment needs. He advises:
“At the outset, I would indicate that as a general principal, it is appropriate for the claimant to take charge of her own physical therapy by means of a self-directed, home-based exercise program. This is not easy to do without guidance and therefore, it is appropriate for her to have ongoing physiotherapy, treatment specifically from an exercise physiologist and then the hydro therapist from the point of view of managing her physical injuries…With further specific psychological counselling, as indicated by Professor Robinson, this will help hopefully, to give her the motivation to be able to undertake a more self-directed program of exercise with intermittent input from the physiotherapist, the exercise physiologist and the hydrotherapy…It is the physical activity that she undertakes that will improve function.”
The ARD also contains two reports from Dr Courtenay, which were obtained by the respondent’s solicitors in order to answer the applicant’s claim pursuant to s 66 of the 1987 Act. Of relevance to the issues which I need to determine, the initial report dated 17 October 2022 (found at page 97 of the ARD):
(a)    records symptoms including the ongoing use of crutches, cramping in her left shoulder, stiffness in her right knee, the inability to sit for prolonged periods, very restricted movement of her right knee, and restrictions with exercise (when prior to her injury, she had regularly walked along the beach, swam at the beach, and been active in other sports);
(b)    records treatment including one surgical procedure and extensive physiotherapy, as well as injections and medication – the doctor specifically notes that the applicant’s current physiotherapy “seems to be working well albeit very slowly” and that “it is essential that that physiotherapy keeps continuing at the moment”, and
(c)    confirms that the applicant’s symptoms and impairments in both her knees, her left shoulder, her neck and her back, are related to her 18 December 2020 injury.
The ARD further contains a report obtained by the respondent’s insurer from an injury management consultant, Dr Kirychenko, dated 26 July 2022 (found at page 79 of the ARD). The doctor notes that the applicant is unable to walk without crutches; has difficulty sitting for long periods; is unable to do any housework; is unable to drive; feels isolated; seemed depressed and insecure; has pain in her neck radiating into her left shoulder; has severe pain in her lower back radiating into her pelvic area, and has only 30° of fixed flexion in her right knee. The doctor notes the applicant’s then current treatment as involving taking medication, having physiotherapy three times per week “as it is imperative to keep her physically active”, having hydrotherapy twice per week, and having psychological counselling.
Following a review of radiology, as well as an extensive examination of the applicant’s cervical spine, upper limbs, back, and lower limbs, the doctor provides the following opinions regarding ongoing treatment:
“Although she had extensive physiotherapy this has not helped her recovery but perhaps helped her to become less deconditioned. She seemed to have improved slightly and Dr Suzuki recommended further continuation of her physiotherapy which perhaps might be considered at two sessions per week…I would think that some hydrotherapy or swimming would be of beneficial, to keep her muscles active and strengthen the muscles. Muscle therapy is the only therapy which will eventually resolve her symptoms. Her pain and social situation of isolation would result in some psychological trauma, which she is still experiencing, and this also would impede her recovery…I eventually managed to contact the NTD on the 25/07/22 as he was away for some of last week…We agreed that Ms Boulaine was considerably incapacitated, with lesions in the cervical spine, the lumbar spine with a possible right L5 radiculopathy, the right knee did not resolve with the surgery and she still had reduced movement and pain not able to weight bear…We also discussed replacing some of the physiotherapy treatment with exercise physiology…Overall this is a very complex case with multiple injuries resulting in severe disabilities. She does require continuous physical treatment otherwise she will deteriorate further with poor chance of recovery.”
In relation to Barker and Reid’s records, the ARD contains:
(a)    a report to the respondent’s insurer (prepared by Reid) dated 13 January 2023 (at page 120), which notes the applicant’s pain, lack of strength, lack of confidence, and balance issues – the report recommends “physiotherapy at three sessions a week to focus on building her strength and capacity, as well as manual therapy and soft tissue work to reduce her pain levels”;
(b)    a report to the respondent’s insurer (prepared by Reid) dated 9 October 2023 (at page 158), which confirms that the practice has been working regularly with the applicant “on building strength and endurance for functional tasks” – the report also recommends supervised gym access for the applicant with a personal trainer, as well as hydrotherapy;
(c)    a report to the applicant’s solicitors (prepared by Reid) dated 9 November 2023 (at page 167), which confirms the fees charged at the practice as being $204 per one hour physiotherapy session – the report also confirms the applicant’s current treatment as being two exercise-based sessions per week and one manual therapy session per week, and
(d)    a report (prepared by Barker) to the applicant’s general practitioner dated 26 January 2024 (at page 176), which provides a summary of the applicant’s treatment at the practice, as follows:
“Laura has been attending ongoing physiotherapy. Sessions focus on building independence and confidence when mobilising, lower limb strengthening and coordination, and pain management. Laura has been participating in strength and pilates-based exercise sessions and thoracic ring treatment. She has a home exercise program to work on independently…Since commencing physiotherapy with Balance in Motion in January Laura has demonstrated some improvements in lower limb strength. She has been able to complete 30 sit to stands with no upper limb support. Standing with feet together Laura as [sic] been able to balance for 2 minute and 35 seconds when arm movements are added to the task…Currently myself and the other physiotherapists are working on increasing her walking tolerance along with her strength so she is able to complete more ADLs and improve her QOL. There will be a continued focus on gait mechanics, limb strengthening, and manual release work as needed.”
In relation to exercise physiology records, the ARD contains (at page 165) an email from Akbar Yasin (Yasin) to the applicant’s solicitors dated 3 November 2023, advising:
“I am emailing you in regards to Ms Laura Boulaine's request for my opinion on her treatment needed for exercise physiology, Due to her condition I would suggest she attend and would benefit from initially 2 exercise physiology sessions a week to attempt working towards improving her goals/condition. It is difficult to predict how much rehabilitation she would need however I plan to review her monthly to gauge how her rehabilitation is progressing.”
In relation to Rod’s records, the ARD contains:
(a) a report to the applicant’s solicitors dated 5 June 2023 (at page 136), which confirms that Rod had 66 consultations with the applicant up to 12 December 2022 and then another consultation with the applicant on 1 June 2023 (which the applicant self-funded, as she was feeling “emotionally distressed, anxious, and in a dark mood”, and needed urgent psychological support) – the report recommends regular psychological support as being crucial for the applicant’s recovery and wellbeing – the applicant has limited social support and is facing an uncertain future – it needs to be recognised that “psychological well-being and physical recovery are interconnected, and neglecting one aspect can hinder progress in the other”, and
(b) a report to the applicant’s solicitors dated 5 November 2023 (at page 166), which confirms the fees charged by her as being $288 per appointment – the report also recommends that the applicant ideally have fortnightly appointments, but at a minimum monthly appointments with her, and advises that the:
“…frequency of such appointments can be monitored, and the therapy discontinued once Ms Boulaine is sufficiently able to effectively manage her chronic pain and demonstrates that she has reached a point where her psychological and emotional wellbeing has significantly improved and stabilized.”
In relation to records from the applicant’s treating general practitioners (initially Drs Wang, Langford-Wells and Azar, but now Dr Lewis since at least 14 April 2022), the ARD contains:
(a)    numerous certificates of capacity covering (not continuously) the period from 18 September 2021 to 21 January 2024 – each certificate however recommends ongoing physiotherapy treatment and ongoing psychological treatment;
(b)    a referral from Dr Lewis dated 29 December 2022 (at page 119) to Barker and Reid’s practice, and
(c)    a referral from Dr Lewis dated 26 May 2023 (at page 135) for exercise physiology.
Finally, the ARD also contains the following of relevance:
(a)a report from Dr Suzuki dated 30 November 2021 (at page 53) – the doctor was the applicant’s orthopaedic surgeon who performed a right knee arthroscopy upon her on 10 March 2021 – in the report, the doctor records the applicant as advising him that her “one-on-one physiotherapy sessions are very beneficial” in improving her posture – the doctor recommends continuing physiotherapy as well as walking, and notes that “given her overall deconditioning and weakness I feel her recovery will be a long term process”;
(b)a report from Dr Suzuki dated 7 June 2022 (at page 77) – the doctor advises that he is happy with how the applicant’s physiotherapy treatment has been progressing as she has made mobility improvements, but “she has a long way to go to regain range of motion and strength” – he endorses ongoing one-to-one physiotherapy and hydrotherapy to address quadriceps strength, hamstrings stretching, core strengthening, and general movement around her lumbar spine;
(c)a report from Dr Suzuki dated 26 October 2022 (at page 105) – the doctor notes improvement in the applicant’s current state and clinical picture, and does not recommend further surgery – he recommends that she continue with her exercise program, use a stationary bicycle, as well as continue with her scheduled sessions of physiotherapy and hydrotherapy;
(d)a report from Dr Yu dated 21 March 2022 (at page 73) – the doctor was a pain specialist that Dr Suzuki referred the applicant to – in the report, the doctor notes the applicant’s “persistent” pain (rated by her at 7/10) in her right leg, right knee, lower back, left-sided neck, and left arm, together with her significant physical deconditioning – he organises nerve block injections for her, but otherwise encourages her to continue with her regular physiotherapy and hydrotherapy;
(e)a receipt (at page 178) for $250 that the applicant paid to Rod for a consultation (as referred to in Rod’s report dated 5 June 2023 – see paragraph 41(a) above) on 1 June 2023, and
(f)a receipt (at page 179) for $425 that the applicant paid (on 25 October 2023) to Yasin for five exercise physiology consultations in May/June 2023 – following a referral from Dr Lewis (see paragraph 42I above).

Respondent’s evidence

Having considered the evidence in the Reply in its entirety, I would note that it also contains a substantial amount of evidence that either has limited relevance to the issues which I need to determine (see paragraph 7 above) regarding the treatment modalities required by the applicant, or deals with treatment modalities not now claimed by the applicant in these Commission proceedings (see paragraph 6 above). I will detail the evidence which I consider to be relevant, as well as any other evidence which I am specifically directed to during the parties’ submissions.
The respondent relies upon a report from a clinical psychologist, Thomas O’Neill (O’Neill), dated 15 September 2022, which is found at page 6 of the Reply. The report is referred to as a “Stage 2” report and it does not seem that a consultation with the applicant was involved in the preparation of the report. In fact, O’Neill only records being provided with two Allied Health Recovery Requests from Rod (not in evidence before me), a report from Dr Dwyer (not in evidence before me), and Dr Kirychenko’s report (see paragraphs 37-38 above).
O’Neill refers to the two Allied Health Recovery Requests from Rod that he had been provided with, as being essentially very similar. He notes that he had a lack of information as to “what traction had been gained with treatment in terms of capacity to understand pain management, regulate mood, and self manage her overall mental health given the chronicity of physical symptoms and complex physical injuries”.
O’Neill therefore had a discussion with Rod, and he records:
(a)    there had been a number of significant barriers that had impacted the applicant’s response to psychological treatment – including that she becomes quite emotionally reactive, that she engages in “rigid black and white thinking regarding her circumstances and expectations of change”, and that her physical incapacity interferes with her community access and social network;
(b)    despite these challenges, there had been functional gains with Rod’s treatment, as well as the development of skills in distress tolerance;
(c)    Rod confirmed however that self-management had not been achieved given the applicant’s restricted community access, and
(d)    despite this restricted community access, Rod agreed to “phase sessions out to fortnightly and provide a transition plan to a community and rehabilitation focus on a fortnightly basis over the next 2 months”.
O’Neill concludes:
“It would appear that despite the barriers at play, treatment has been associated of recent with more stable mood, a more positive framework towards a good rehabilitation outcome, including return to work options, less emotionality, capacity to get out of bed, and engaging in a basic level of functioning. Treatment has not led to independent management of mental health in the context of injury. This is not surprising given the multiple barriers and physical care needs… The discussion with Ms Rod indicated that there were significant complexities with physical health injuries and associated restrictions in living that require a more-broad based multidisciplinary and community integrated approach. This should include a case conference to navigate practical options including exercise physiology, engagement of a rehabilitation provider to explore vocational redirection, mapping out realistic options for suitable long-term employment, connecting with a pain support group (Pain Australia is 1 option), and engaging in community resources such as libraries and art galleries with an overall focus on independence…Given the complexities involved and the benefits gained, it was agreed that the 4 sessions remaining on the current plan provided on a fortnightly basis may be considered reasonably necessary while transitioning Ms Boulaine to the rehabilitation and community-based resources suggested…If further psychological treatment is recommended beyond this point, a stage 3 treatment review is warranted.”

The respondent relies upon reports from two independent physiotherapists, Andrew Leaver (Leaver) (who conducted what he refers to as a “Stage 3 Independent Physiotherapy Assessment” on 14 March 2023) and Gaetano Milazzo (Milazzo) (who conducted what he refers to as a “IPC Stage 2 Review” on 5 September 2023).
Leaver’s report dated 14 March 2023 is found at page 19 of the Reply. He takes an uncontroversial history of the applicant’s 18 December 2020 injury, and notes that her treatment had involved radiological tests, physiotherapy, arthroscopic surgery to her right knee, cortisone injections, appointments with a psychologist, pain management appointments, hydrotherapy sessions, medication, and appointments with a sports medicine physician (Associate Professor Robinson). Leaver also notes that her current physiotherapy treatment involved three sessions per week at Barker and Reid’s practice. She had had a total of 16 physiotherapy sessions at that practice since 9 January 2023, but had previously had 112 physiotherapy sessions at a different practice.
Leaver records the applicant’s current complaints of pain affecting both her knees, her left shoulder, her neck, her thoracic region, her lower back, her left groin, and her left ankle. He also records her mobility restrictions, and that she walked with the aid of crutches. On physical examination, he found:
(a)    a normal gait with no limp;
(b)    spontaneous movements and changes of position performed in a fluid and unguarded manner;
(c)    marked inconsistency between his observations of movement quality and pain behaviours during his interview, compared with his formal movement testing;
(d)    exaggerated pain responses during formal movement testing;
(e)    moderately restricted right knee range of movement – movements were also blocked by strong muscle guarding and performed in a slow manner;
(f)    well restored mobility with mild restriction in both shoulders – movements were performed in a slow and guarded manner with pain behaviours;
(g)    reduced power on muscle testing – interpreted as due to reduced effort and pain behaviour;
(h)    75% reduction of range of neck movement – featuring abnormal guarding and pain behaviour;
(i)    a “contrived” incident when the applicant appeared to collapse but did not require any more than minimal assistance from him in order to right herself, and
(j)    an indication that the applicant’s level of whole person impairment needed re-assessing.
Leaver discusses the applicant’s situation with Reid. He says that it was agreed between them that:
(a)    the applicant had made very poor progress with her post-operative rehabilitation following her knee surgery;
(b)    the applicant’s symptom complaints and level of disability was disproportionate to the “relatively minor nature of her other regional injuries”;
(c)    thrice weekly physiotherapy appointments were not reasonable or appropriate for injury management “in this late chronic stage”;
(d)    however, physiotherapy might help with supporting Leaver’s change of approach to the applicant’s treatment - with a focus on improving levels of participation, identifying specific goals in relation to domestic and recreational activity, reducing reliance on crutches, and reducing reliance upon passive treatment modalities, and
(e)    as a result, eight additional physiotherapy appointments over three months would be sufficient.
In summary, Leaver advises:
“A further course of physiotherapy treatment is reasonably necessary however a change of approach is needed. I note that Ms Boulaine was resistant to any discussion about changing the approach to treatment and about reducing the volume of physiotherapy treatment. Her request for 3+ physiotherapy treatment sessions per week is not reasonably necessary. This pattern of attendance is counterproductive and is likely reinforcing dependence and a sick role. I suggest that requests for this schedule of treatment be declined.”
Milazzo’s first report dated 5 September 2023 is found at page 49 of the Reply. Importantly, Milazzo did not consult with the applicant, but relied upon information and documentation provided by the respondent’s insurer to provide his opinions. In this regard, Milazzo only records the insurer as relevantly advising:
“Ms Boulaine is currently receiving physiotherapy from Ms Jade Reid of Balance in Motion Physiotherapy and Pilates; she commenced on 9 January 2023 and has attended 73 sessions…The physiotherapist advised that Ms Boulaine was attending twice a week with her for exercise-based therapy; the third session each week is with Mr Matt Baker [sic] who works on the thoracic ring. Ms Boulaine is doing exercises at home, but the more complex ones required physiotherapy supervision…The frequency of 3 times a week had continued despite the recommendations of the previous IPC review performed by Dr Andrew Leaver. Ms Boulaine is reported to have raised significant concerns with her interaction with this consultant…The objective measures in recent AHRR show minimal-to-no functional improvements, despite having received a significant amount of treatment.”
Further, the documentation provided and reviewed by Milazzo includes documentation that is not before me in evidence (three reports from Dr Millons (orthopaedic specialist), a report from Dr Dwyer (psychiatrist), a pharmacy review report, injury management consultant reports from both Drs Anton and Perla, as well as a physiotherapist’s report from John Silcock).
The other information relied upon by Milazzo was information that he received during discussions with Barker and Reid. He records this information from Barker and Reid as including:
(a)    the applicant’s current treatment being three sessions of physiotherapy per week – two were exercise-based and the other comprised of hands-on treatment;
(b)    an acknowledgement that there had been no “objective changes in capacities”;
(c)    the reporting of some improvements – which “could not be qualified by any metrics or objective measures”;
(d)    deconditioning and psychosocial issues being advised to be the barriers to recovery, and
(e)    psychological management and pain management being supported.
Milazzo advises Barker and Reid that:
“In the absence of measured benefits the providers were advised that I would not be able to support the current management as being appropriate or necessary…I would support Ms Boulaine attending the pain physician and this was to include pain psychology.”
In providing his reasons for his opinions in this regard, Milazzo references Dr Dwyer’s opinion (not in evidence before me) as the most likely basis for the applicant’s failure to show significant improvement with treatment. He also references John Silcock’s opinion (also not in evidence before me) regarding inappropriate high frequency physiotherapy treatment. He recommends pain management, as initially recommended by Dr Jomaa, but “due to the diagnosis provided by Dr Dwyer, the pain specialist should consider involving psychiatric care, as psychology services alone have not in the past, and unlikely in the future to be provide sufficient benefit”.
The only comment made by Milazzo in relation to the exercise physiology treatment requested by the applicant is that her current treatment providers were providing active rehabilitation, and “concurrent services are not approved by SIRA”.
Milazzo then provides a further report dated 16 September 2023, which is found at page 63 of the Reply. The report was prepared following a discussion between Milazzo and Associate Professor Robinson.
Milazzo again relies upon Dr Dwyer’s report (not in evidence before me) in his discussions with the doctor. He notes the doctor advising him that the applicant’s condition “was slow to improve, but the treatment was described to be working”, in that she was now more positive and not relying on crutches. He then discusses the provision of an exercise bike to the applicant, with the doctor.
The report does not otherwise detail discussions between Milazzo and the doctor regarding the effectiveness of physiotherapy treatment for the applicant, and Milazzo states that he sees no reason to alter any of the comments or opinions in his first report.
Milazzo then provides a third report dated 14 November 2023, which is found at page 67 of the Reply. However, this report provides opinions regarding treatment modalities (provision of an exercise bike, provision of gym membership, and provision of hydrotherapy) not claimed in these Commission proceedings.
The Reply also contains a report from Dr Jomaa dated 1 December 2022 (found at page 11). The doctor is a sport and exercise physician whom the applicant was referred to by Dr Suzuki, prior to her consulting with her current sport and exercise physician, Associate Professor Robinson. After consulting with the applicant, the doctor records his summary and treatment recommendations as follows:
“Laura presents with primarily a chronic pain picture confounded by frustration and fear of movement. She is generally deconditioned. Her current circumstance of requiring assistance with functional activities of daily living, despite her relatively young age and all following and innocuous sounding fall is concerning…Laura clearly requires further input from a pain specialist team, in particular from a pain psychologist…In the meantime I have advised her to begin gradually challenging her pain and discomfort after educating her regarding the nature of pain. I have tasked Laura with a stepwise increase in her daily walking load and encouraged her to attempt to gradually do away with crutches and normalise her gait. For the sake of her physical as well as social health I have asked her to join a local exercise class and take up a Pilates or yoga class twice per week and participate there in as much as she can tolerate, accepting pain or discomfort up to a severity of 5 out of 10. To facilitate all of this I've also asked her to explore the role of using cannabis oil. If this can be approved then I would like to start her on a gradually increasing dose of CBD oil (non-psychoactive cannabinoid) to help with her chronic pain and anxiety/frustration component.”

Applicant’s submissions

The applicant’s submissions have been recorded and form part of the Commission’s record. I will therefore not repeat them in detail.
The applicant notes that “on any view” she has undergone a protracted rehabilitation from her accepted work injuries. She has made some progress with her mobility, but is still significantly disabled. There are two significant features of her current presentation, being her right quadriceps wasting and her general deconditioning.
The applicant then analyses the medical reports from Associate Professor Robinson that are in evidence, and points out the comprehensive and detailed observations of the applicant’s condition referred to in them. She emphasises her steady progress, and considerable improvement, outlined by the doctor, when undertaking thrice weekly physiotherapy treatment at Barker and Reid’s practice, as well as when undertaking exercise physiology briefly. She specifically refers to the extracts from Associate Professor Robinson’s reports referred to at paragraphs 22 and 24 above, in relation to the doctor’s recommendations for further treatment (being 6-9 months of physiotherapy, exercise physiology, and psychological counselling). She notes that the doctor is aware of the extent of her considerable psychological counselling in the past, but supports ongoing counselling in the context of her overall treatment regime.
The applicant also emphasises her deterioration, outlined by Associate Professor Robinson in her 1 February 2024 report, following the cessation of the applicant’s physiotherapy treatment.
The applicant submits that Associate Professor Robinson is the only doctor to provide “a coherent overall analysis of the progress” of her in her rehabilitation. The medical and expert reports relied upon by the respondent are “confined in time”. They also do not come to terms with the propositions advanced by Associate Professor Robinson, and take a piecemeal approach rather than the necessary holistic approach to her ongoing treatment.
When specifically questioned by me as to Associate Professor Robinson not mentioning ongoing exercise physiology or psychological treatment in her most recent 1 February 2024 report, the applicant drew my attention to the need for guided strengthening and truncal stability exercises mentioned in the report, as well as the need to view the report in the context of the doctor’s earlier reports, which clearly recommended a treatment regime involving physiotherapy, exercise physiology, and psychological counselling.
In summary, the applicant submits that the type of treatment recommended for her by Associate Professor Robinson was working, and when it was withdrawn, she deteriorated. If that proposition is accepted, the type of treatment recommended by the doctor should be accepted as reasonably necessary treatment for the applicant.
Finally, I note that the applicant also made some brief written submissions on 24 April 2024, in which she referred to Dr Kirychenko’s report as also providing support for the need for “continuous physical treatment”. This report also specifically mentions the use of exercise physiology.

Respondent’s submissions

The respondent lodged written submissions on 17 April 2024. The submissions form part of the Commission’s record and I will therefore not repeat them in detail.
The respondent also analyses the medical reports from Associate Professor Robinson that are in evidence, and in summary submits:
“The respondent submits that, when properly analysed in light of the relevant considerations under section 60 of the WCA, reports of Associate Professor Robinson really only support the applicant continued to receive physiotherapy treatment. She has not supported her comment that the applicant’s treatment should be for a period of 12 months rather than a shorter period with review.”
In analysing the various reports from Associate Professor Robinson, the respondent:
(a)    (in relation to the 14 March 2023 report), submits that the doctor’s history of the applicant being treated by a number of physiotherapists in the past “militates against an award of significant ongoing physiotherapy treatment” – it also criticises the doctor for not identifying a time frame for the recovery, with physiotherapy, to full function in the applicant’s shoulder, neck and back;
(b)    (in relation to the 6 April 2023 report), criticises the doctor for not outlining the extent of the applicant’s improvement with her recent physiotherapy – it also criticises the doctor for not outlining her basis for recommending psychological treatment or the extent of treatment that she recommended in this regard – it further criticises the doctor for not providing enough information regarding the applicant’s recent exercise physiology treatment (although I cannot find any reference to that treatment in the report, and indeed, it seems from the receipts referred to at paragraph 43(f) above that the treatment did not commence until May 2023);
(c)    (in relation to the 25 July 2023 report), criticises the doctor for not providing “any reasoned opinion” identifying the benefits to the applicant of continuing to be provided with both physiotherapy treatment and exercise physiology – it also alleges bias on behalf of the doctor as she “stated her view about the inappropriateness of the treatment approach within the legal and financial confines of the workers compensation scheme generally” (although I cannot find any reference to this view in the report, the doctor making reference to the applicant undergoing “yet another independent review by a physiotherapist”, but otherwise solely commenting upon the applicant’s treatment progress and ongoing treatment needs);
(d)    (in relation to the 26 August 2023 report), submits that the doctor has failed to properly identify how her recommended cognitive functional therapy approach is undertaken, how the treatment components of that approach (including psychological treatment) are required, how the approach is intended to achieve an outcome, as well as for how long the approach will be needed;
(e)    (in relation to the 24 October 2023 report), emphasises the doctor’s view that the applicant could transition from her physiotherapy guided Pilates program to seeing a personal trainer, and
(f)    (in relation to the 1 February 2024 report), emphasises that the doctor only mentions recommending ongoing physiotherapy and twice-weekly attendances at a pool for the applicant, in the report.
The respondent also notes that Associate Professor Robinson’s recording of the benefits received by the applicant from physiotherapy treatment is “at odds” with Milazzo’s assessment (see paragraph 56 above) of the absence of “measured benefits”. The respondent notes that Milazzo in this regard “referred to previous assessments based on independent medical reviews of the applicant”.
The respondent submits that Dr Bodel’s opinions are of limited value as he is not a specialist in rehabilitation management.
The respondent then submits that the applicant is not entitled to “optimal treatment” but only reasonably necessary treatment, and that I would not be satisfied that the applicant has established physiotherapy treatment to be reasonably necessary. However, if I was so satisfied, the respondent submits that further physiotherapy treatment should be limited to one session per week for a period of no longer than 12 weeks.
In relation to the applicant’s claim for psychological treatment, the respondent relies upon O’Neill’s opinion, and criticises Rod’s 5 November 2023 report (see paragraph 41(b) above) as:
(a) not identifying the nature of her proposed treatment or how it would benefit the applicant, and
(b) referring to the management of chronic pain as an apparent justification for her treatment recommendations, when according to Associate Professor Robinson’s 1 February 2024 report (see paragraph 31(d) above), the applicant has no pain.

FINDINGS AND REASONS

Whether physiotherapy treatment, exercise physiology, and psychological treatment are reasonably necessary medical treatments as a result of the applicant’s accepted injuries on 18 December 2020 – if so, what is the extent to which the treatments are required and what is the frequency in relation to which the treatments are required?

Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result 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).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacIes,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment,”.

The first question to therefore determine is whether physiotherapy treatment, exercise physiology, and psychological treatment are reasonably necessary treatments as a result of the applicant’s accepted work injury on 18 December 2020.
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) 2 NSWCCR 2 (Rose), where his Honour said:
“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.”
In Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), Roche DP considered Rose and concluded:
“86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87. Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. 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.
89. 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.”
Despite the voluminous evidence before me, it seems to me that the resolution of the issues in dispute essentially involves a determination as to whether I accept the applicant’s statement evidence and Associate Professor Robinson’s opinions, or whether I accept the opinions of O’Neill, Leaver and Milazzo. The applicant has accepted work-related injuries to her left shoulder, her neck, her back, and both her knees (especially the right knee). The dispute involves how those injuries are to be treated.
The applicant’s credit has not been placed in issue by the respondent, and there is no reason why I would not accept her as a witness of truth. Her statement evidence (see paragraph 18 above) is consistent with her reports to Associate Professor Robinson, as well as Barker and Reid, in relation to the benefits of her treatment regime with Associate Professor Robinson. She was optimistic with this treatment support.
In my opinion, Associate Professor Robinson has provided comprehensive and reasoned reports, detailing the applicant’s treatment progress and her ongoing treatment recommendations.
The doctor has been the applicant’s treating sport and exercise physician since 14 March 2023, and has consulted with her on at least five occasions. In my opinion, she is placed in the best position as a result to provide recommendations regarding the applicant’s treatment. She has recorded the applicant’s ongoing symptoms (together with deteriorations and improvements in those symptoms) in detail in her reports, and explained how her treatment recommendations are aimed at improving those symptoms. I accept the applicant’s submissions at paragraphs 66-67 above in this regard.
When the doctor first consulted with the applicant, her aim was to return the applicant to full function, at least in relation to her shoulder, neck and back. Her treatment plan as at 6 April 2023 was based upon quadriceps strengthening, gait normalisation, and removing the need for the applicant to utilise crutches. The doctor’s focus was again on strengthening as at 25 July 2023, the doctor explaining that the applicant had been undertreated for some time, resulting in “massive” strength loss and deconditioning. The doctor had earlier on 14 March 2020 opined that the applicant’s treatment would take a “significant amount of time”.
In the doctor’s 26 August 2023 report to the applicant’s solicitors, the doctor also confirms the applicant’s deconditioning, as well as her fear, anxiety, and poor understanding of her pain. The doctor confirms that “considerable intervention” is required.
The doctor records (on 6 April 2023) improvements in the applicant’s strength due to her physiotherapy treatment at Barker and Reid’s practice, a “significant improvement on her situation of 12 months ago”. Then, on 25 July 2023, she notes that that treatment has played a role in improving the applicant’s motivation and desire to get better, and she says that “this is the first time I have felt this”. The physiotherapy treatment has led to less pain and spasm as well as increased range of movement in the neck, and it has also led to considerable improvement in lower limb strength and right knee range of movement. The applicant’s recent exercise physiology treatment had also improved strength and motivation.
In the doctor’s 26 August 2023 report to the applicant’s solicitors, she also confirms the physiotherapy treatment at Barker and Reid’s practice to have improved the applicant’s pain levels, improved her movement, lessened her physical restrictions, and led to her becoming less pain avoidant. She further confirms the applicant’s brief exercise physiology treatment to have improved strength and mobility.
Finally, the doctor describes (in her 1 February 2024 report) the applicant’s improvement as considerable and obvious (following her treatment approach) in the 10 months since she had first consulted with the applicant, but she notes that there had been a deterioration in the applicant’s symptoms since physiotherapy treatment had ceased.
In considering the various reports of the doctor, in my opinion, she has been consistent and detailed in:
(a)    describing her aims in treating the applicant;
(b)    describing why the treatment recommended by her was required;
(c)    describing how the treatment would further her aims in treating the applicant;
(d)    describing the improvement in the applicant’s symptoms over time, and
(e)    describing that the treatment would take time.
On this basis, I find her summary (see the extract quoted at paragraph 24 above) of the applicant’s treatment needs to be compelling evidence, as well as her explanation for the applicant’s ongoing psychological counselling needs (see paragraph 27 above).
I reject the respondent’s submissions at paragraph 74 above. In my opinion, Associate Professor Robinson has provided more than sufficient detail in relation to the benefits to be gained by the applicant from following the treatment recommended by her. I specifically reject the submission made as to the doctor being biased by simply noting that the applicant had attended “yet another independent review by a physiotherapist”. In my opinion, bias does not follow from the doctor’s reports, but only a desire to see a continuing improvement in the applicant’s symptoms.
The records in evidence from Barker and Reid (see paragraph 39 above) are consistent with and support Associate Professor Robinson’s findings and opinions regarding the applicant’s need for physiotherapy treatment. When the physiotherapists began to treat the applicant, they similarly noted her pain, lack of strength, lack of confidence, and balance issues, which they aimed to address with focused treatment. They also recorded the applicant’s improvements, and in their 26 January 2024 report, they recommended further treatment focusing on gait mechanics, limb strengthening, and manual release work.
The records in evidence from Rod (see paragraph 41 above) are also consistent with and support Associate Professor Robinson’s findings and opinions regarding the applicant’s need for psychological treatment. She consulted with the applicant on 5 June 2023 as the applicant needed urgent psychological support. I note in this regard that Associate Professor Robinson had recommended that support in the doctor’s 6 April 2023 report. Rod recommends ongoing psychological treatment not just to manage the applicant’s chronic pain (as submitted by the respondent – see paragraph 78(b) above) but also to improve and stabilise “her psychological and emotional wellbeing”. Similarly, Associate Professor Robinson in her 26 August 2023 report (see paragraph 27 above) recommends treatment to assist the applicant with “emotional regulation and management of anxiety and depression”.
In relation to Rod’s 5 November 2023 report, I reject the respondent’s submissions at paragraph 78 above as it seems clear to me that Rod has explained how her treatment was aimed at benefiting the applicant in terms of allowing the applicant’s psychological and emotional wellbeing to improve, rather than solely in terms of managing the applicant’s chronic pain. Rod has also pointed out in her 5 June 2023 report the interconnection between psychological wellbeing and physical recovery. Neglecting the applicant’s psychological wellbeing can hinder progress in her physical recovery.
Having analysed Associate Professor Robinson’s reports in some detail (in the context specifically of the records from Barker and Reid, as well as Rod), I am impressed by their reasoning and explanations, as well as their consistency. I intend to place significant weight upon the opinions in the reports.
In contrast, in my opinion, the respondent has many difficulties in relying upon Milazzo’s opinions. The opinions suffer from the following deficiencies:
(a)    Milazzo did not consult with or examine the applicant;
(b)    while having physiotherapy qualifications, Milazzo does not have medical qualifications;
(c)    Milazzo’s opinions are contrary to the opinions of the applicant’s treating sport and exercise physician (Associate Professor Robinson), who has consulted with her regularly (and documented her symptoms, improvements and deteriorations) since 14 March 2023;
(d)    the instructions provided to Milazzo (see paragraph 54 above) by the respondent’s insurer were in my opinion inadequate – the instructions also provided an indication as to the effectiveness of treatment that was contrary to the improvements with treatment claimed by the applicant and found by Associate Professor Robinson, Barker and Reid, and Rod;
(e)    Milazzo was provided with substantial documentation by the respondent’s insurer that is not in evidence before me (see paragraph 54 above) – Milazzo also references this evidence and relies upon it considerably in providing his opinions (see paragraph 57 above);
(f)    while he consulted with Barker and Reid, Milazzo did not initially consult with Associate Professor Robinson (who as the applicant’s treating sport and exercise physician, was responsible for the implementation of the applicant’s treatment plan as a whole) - although he did later consult with her, his recording of that consultation in his 16 September 2023 report is cursory to say the least, and
(g)    Milazzo’s criticism of the treatment provided by Barker and Reid to the applicant was that it had not provided her with “measured benefits” – in my opinion however this criticism is both lacking in explanation itself, but more importantly contrary to the detailed and fully explained improvements in pain, movement, and strength found to have been achieved as a result of the treatment by Associate Professor Robinson, Barker and Reid (as documented by them as well as by the applicant herself).
I find Milazzo’s report to be therefore unreliable in many respects, and I do not intend to afford it much weight.
Leaver’s report is likewise unreliable and I do not intend to afford it much weight. It was produced (on 14 March 2023) on the same date when the applicant first consulted with Associate Professor Robinson and after she had only attended Barker and Reid’s practice on 16 occasions. Leaver was therefore of course not aware of the applicant’s improvements in pain, movement, and strength, associated with her subsequent physiotherapy treatment at Barker and Reid’s practice.
Unlike Milazzo, Leaver did have the opportunity to physically examine the applicant. However, I do not intend to accept his findings (see paragraph 51 above) of inconsistency, exaggeration, and a “contrived” incident. The significance and extent of the applicant’s disabilities and symptoms have been accepted by many medical practitioners (including her general practitioners, Associate Professor Robinson, and Drs Bodel, Courtenay, Kirychenko, Suzuki, and Yu) and the contrary findings of a physiotherapist will not be given weight by me, especially as I have accepted the applicant as a witness of truth.
The other report relied upon by the respondent from O’Neill is also historical (dated 15 September 2022), and in my opinion, not of much use to me in determining the extent of the applicant’s current need for psychological treatment. O’Neill of course has no knowledge of the applicant’s ongoing psychological symptoms, as recorded by Associate Professor Robinson and Rod. He, like Leaver, is therefore at an insurmountable disadvantage in providing an opinion as to the applicant’s current [my emphasis] treatment needs.
It should also be noted that O’Neill:
(a)    did not consult with the applicant;
(b)    was provided with limited documentation by the respondent’s insurer (see paragraph 45 above) – including documentation not in evidence before me;
(c)    failed, in my opinion, to properly take into account the applicant’s mobility restrictions and physical barriers to self-managing her condition by “engaging in community resources such as libraries and art galleries with an overall focus on independence”;
(d)    failed, in my opinion, to properly take into account the functional gains that the applicant had achieved with Rod’s treatment, and
(e)    recommended a “stage 3 treatment review” if further psychological treatment was claimed by the applicant (as she has) – the respondent has however not conducted that review.
The other medical reports in evidence (from Drs Bodel, Courtenay, Kirychenko, Suzuki, Yu, and Jomaa) were all written (except for Dr Bodel’s 5 July 2023 report, which did not involve a further examination of the applicant in any case) prior to the applicant consulting with Associate Professor Robinson. Due to the dates when they were written, they are not of great assistance to me in determining the applicant’s current treatment needs. I accept to a degree in this regard the applicant’s submissions at paragraph 68 above that these reports are "confined in time”, but I do note the following comments to be consistent with the opinions now provided by Associate Professor Robinson:
(a)    Dr Bodel opined in his 22 February 2022 report that the applicant required “extensive” ongoing treatment – both physical and possibly psychological;
(b)    Dr Bodel opined in his 5 July 2023 report that psychological counselling would assist the applicant to gain motivation to engage in physical activity in order to improve her functioning;
(c)    Dr Courtenay in his 17 October 2022 report recorded extensive symptoms and restrictions of the applicant’s, noted that physiotherapy treatment was working well for the applicant but slowly, and opined that it was “essential” for physiotherapy treatment to continue;
(d)    Dr Kirychenko in his 26 July 2022 report also recorded extensive symptoms and restrictions of the applicant’s rendering her to be “considerably incapacitated”, noted that physiotherapy treatment was keeping the applicant physically active and less deconditioned, noted that the applicant’s psychological trauma was impeding her recovery, considered exercise physiology, and opined that “continuous physical treatment” was necessary to prevent deterioration;
(e)    Dr Suzuki’s reports (see paragraph 43 above) consistently recommend ongoing physiotherapy treatment to address strengthening and deconditioning, and they also consistently advise that the applicant’s recovery will be a long process;
(f)    Dr Yu in his 21 March 2022 report noted the applicant’s deconditioning and encouraged ongoing physiotherapy treatment for her, and
(g)    Dr Jomaa in his 1 December 2022 report noted the applicant’s deconditioning as well as her anxiety/frustration.
Finally, it is also important to note that the applicant’s treating general practitioners have continuously recommended ongoing physiotherapy treatment and ongoing psychological treatment for her – see paragraph 42 above.
Considering all the evidence before me as a whole, and relying primarily upon the opinions of the applicant’s most recent treating practitioners (Associate Professor Robinson, Barker and Reid, as well as Rod), I am satisfied that it is reasonably necessary for the applicant to have ongoing physiotherapy treatment, exercise physiology, and psychological treatment.
I am satisfied that Associate Professor Robinson not only supports the applicant receiving ongoing physiotherapy treatment, but also supports the applicant receiving ongoing psychological treatment and ongoing exercise physiology. I reject the respondent’s submissions at paragraph 73 above in this regard. All three treatment modalities are referred to in her summary extracted at paragraph 24 above, which details their inter-relationship with each other in the treatment of the applicant. The doctor also specifically details the improvements that the applicant gained with her brief exercise physiology treatment in May/June 2023 (see paragraphs 22 and 26 above), as well as her justification for recommending psychological treatment for the applicant (see paragraphs 21 and 27 above).
In relation to the respondent’s submissions at paragraph 74 above regarding Associate Professor Robinson’s 24 October 2023 report mentioning a transition from physiotherapy treatment to personal training, and regarding her 1 February 2024 report recommending pool attendances (and not mentioning exercise physiology or psychological treatment), I accept the applicant’s submissions at paragraph 69 above regarding the need to view Associate Professor Robinson’s reports as a whole, especially in circumstances where the applicant has never had the benefit of the complete treatment approach recommended by the doctor in her 26 August 2023 report (as summarised in the extract at paragraph 24 above).

It is also apparent from the recommendations in the doctor’s 1 February 2024 report that the applicant’s physiotherapy treatment needs are to still include guided strengthening and truncal stability exercises, suggesting that the transition referred to in the 24 October 2023 report is not yet possible.
Further, while the doctor’s 1 February 2024 report does not specifically mention exercise physiology or psychological treatment, I certainly do not accept that the recommendation in the report of pool attendances as a treatment modality affects the doctor’s previous recommendations regarding the need for psychological treatment for the applicant. I cannot see how pool attendances can replace psychological counselling as a necessary treatment modality.
It may be argued that the doctor now recommends pool attendances rather than exercise physiology as a treatment modality, but that is not clear from the 1 February 2024 report. It could be equally argued that the doctor now recommends both pool attendances and exercise physiology in this regard. As the applicant makes no claim in these proceedings for pool attendances as a treatment modality, and requests the approval of exercise physiology as it benefited her in the past, I believe it is reasonable to still concentrate upon the doctor’s summary extracted at paragraph 24 above, detailing the applicant’s need for a co-ordinated approach to her treatment, involving physiotherapy treatment, exercise physiology, and psychological treatment.
In considering the matters referred to in Rose and Diab, I find:
(a)    Associate Professor Robinson provides detailed reasoning as to why the treatment needs that she has recommended are appropriate having regard to the applicant’s deconditioning, lack of strength and mobility, physical activity limitations, as well as anxiety and depression – the treatment is appropriate because it has alleviated and improved the applicant’s symptoms in the past, and its removal has now led to a deterioration in the symptoms - Associate Professor Robinson’s opinions in this regard are supported by Barker and Reid, Rod, and the applicant’s treating general practitioners – the opinions are not supported by Milazzo, Leaver and O’Neill, but I do not find those opinions to be reliable;
(b)    in relation to alternative treatment, personal training and pool attendances are mentioned by Associate Professor Robinson, but I have found that those mentions do not detract from her previous recommendations for physiotherapy treatment, exercise physiology, and psychological treatment – there is also some evidence suggesting that the applicant would benefit from a pain management program, which is rejected by Associate Professor Robinson (see paragraph 31(d) above) on the grounds that the applicant has no pain, but requires strengthening and mobility exercises – for the reasons given previously, and because her opinions are broadly consistent with the opinions of Drs Bodel, Courtenay and Kirychenko (which do not mention a pain management program), I accept the opinions of Associate Professor Robinson in this regard;
(c)    the costs of the treatment needs as recommended by Associate Professor Robinson cannot be said to be unreasonable or prohibitive having regard to the extent of the applicant’s symptoms and her significant deconditioning – in this regard, the respondent’s submissions are silent as to whether the relevant costs are unreasonable – further, there is evidence that Barker and Reid charge $204 per session (see paragraph30(c) above), Rod charges $288 per session (see paragraph41(b) above), and Yasin charges $85 per session (see paragraph 43(f) above) – certainly not unreasonable charges per session;
(d)    the overwhelming evidence from the applicant, Associate Professor Robinson, as well as Barker and Reid, is that when the applicant was afforded physiotherapy treatment and exercise physiology in the past, they were highly effective in improving her strength, pain and mobility – in my opinion, further treatment with physiotherapy and exercise physiology therefore “should not be forborne by” the applicant - further, both Associate Professor Robinson and Rod view psychological treatment as inter-connected with the physiotherapy treatment and the exercise physiology in a co-ordinated approach to the applicant’s overall treatment, Associate Professor Robinson opining (see paragraph 27 above) that the psychological treatment “will only benefit her ongoing physical rehabilitation”, and
(e)    having regard to Associate Professor Robinson’s opinions, as well as the opinions from the applicant’s general practitioners, Baker and Reid, Rod, and Drs Bodel, Courtenay, Kirychenko, Suzuki and Yu, it seems to me to be clear that the treatment needs as recommended by Associate Professor Robinson are accepted by medical experts as being appropriate and likely to be effective.
It is now necessary to consider whether there is a material contribution between the applicant’s accepted work-related injuries and her reasonable need for physiotherapy treatment, exercise physiology and psychological treatment. In this regard, the need for the treatment must be ‘as a result’ of the accepted injuries.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy), Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]. That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
The respondent made no submissions regarding the applicant’s need for the treatment recommended by Associate Professor Robinson (if found to be reasonably necessary by me) not being ‘as a result of’ her accepted injuries, being the injuries to her knees, left shoulder, back and neck, as well as her secondary psychological condition. The respondent does not possess any medical evidence suggesting as such.
I am comfortably satisfied, having analysed Associate Professor Robinson’s reports in some detail, that the applicant’s treatment needs as recommended by her are materially contributed to and result from the applicant’s accepted work-related injuries. There are no other contributing factors raised in the evidence.
It is further relevant to note that Milazzo, Leaver, and O’Neill do not suggest that the applicant’s treatment needs are not ‘as a result of’ the accepted injuries. Their position is that they disagree with Associate Professor Robinson, Barker and Reid, and Rod as to the nature of those treatment needs, in effect believing self-management to be appropriate.
It remains for me to consider the terms of the orders to be made to support my finding that physiotherapy treatment, exercise physiology, and psychological treatment are all current treatment modalities which are reasonably necessary for the applicant as a result of her accepted work-related injuries.
First, the applicant claims re-imbursement for expenses paid by her to Rod on 1 June 2023 ($250 for a consultation on that date – see paragraph 43(e) above) and to Yasin on 25 October 2023 ($425 for consultations on 22 May 2023, 6 June 2023, 20 June 2023, 22 June 2023, and 27 June 2023 – see paragraph 43(f) above).
The consultation with Rod was described by Rod as necessary due to the applicant needing “urgent psychological support” (see paragraph 41(a) above). Associate Prof Robinson had already (in her 6 April 2023 report) strongly recommended psychological counselling for the applicant. I am therefore satisfied that the consultation on 1 June 2023 was reasonably necessary as a result of the applicant’s accepted work-related injuries. The applicant will be awarded the amount of $250 pursuant to s 60 of the 1987 Act.
The consultations with Yasin clearly in my opinion improved the applicant’s strength and mobility. Associate Professor Robinson notes as such (see paragraphs 22 and 26 above), and in her statement evidence (see paragraph 18 above), the applicant alludes to her optimism when undergoing exercise physiology (as well as physiotherapy treatment and psychological treatment) and her concern if she is unable to undergo all three treatment modalities. I am therefore satisfied that the consultations with Yasin were reasonably necessary as a result of the applicant’s accepted work-related injuries. The applicant will be awarded the amount of $425 pursuant to s 60 of the 1987 Act.
In relation to the treatment to be afforded to the applicant in the future, I do not intend to make an order without any time frame attached to it. Such an order does not provide any certainty to the parties and theoretically could result in the applicant’s treatment needs being reviewed within a very short period of time. Further, I do have some evidence before me of the recommended treatment time frames for the applicant’s treatment.
Associate Professor Robinson (see paragraph 24 above) recommends physiotherapy treatment, exercise physiology and psychological counselling “over the next 6-9 months” in her 26 August 2023 report. It does not seem that she provides any further time frames for the applicant’s treatment in her subsequent reports. Dr Bodel in his 22 February 2020 report estimates that the applicant will require treatment for two years costing approximately $2,000–$2,500. In that report he refers to the need for both physical and possibly psychological treatment, but is not more precise. Yasin advises (see paragraph 40 above) that it is difficult to predict how much treatment the applicant will require. Rod recommends (see paragraph 41(b) above) the ongoing monitoring of her treatment of the applicant, which would be able to be discontinued once the applicant’s emotional wellbeing had significantly improved and stabilised.
In all the circumstances, and having regard to my acceptance of Associate Professor Robinson’s evidence in general, I intend to award the applicant her future treatment needs for six months.
She has not yet undergone the entire treatment approach recommended by Associate Professor Robinson in the extract quoted at paragraph 24 above, and therefore in my opinion, a period of six months is appropriate to determine the effectiveness of the treatment approach, rather than any shorter period.
The respondent submits (see paragraph 77 above) that the applicant’s treatment needs should be reviewed after 12 weeks, but I can find no justification in the evidence for its submissions regarding that specific time frame.
The applicant certainly may need physiotherapy treatment, exercise physiology, or psychological treatment, for over six months, but I believe that a review is appropriate at that time. It is the minimum time frame suggested by Associate Professor Robinson, and she will therefore be able to assess the effectiveness of her treatment approach at that time.
Further, I have had regard to s 60(2A) of the 1987 Act, which provides as follows:
“(2A) The worker's employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if--
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.”
In my view it is clearly the intention of the 1987 Act to allow a regular review by an insurer of an injured worker’s treatment requests, which in my opinion is appropriate after a period of six months of the applicant undergoing Associate Professor Robinson's treatment approach co-ordinating physiotherapy treatment, exercise physiology, and psychological treatment.
Finally, it needs to be determined how often each of the treatment modalities (physiotherapy treatment, exercise physiology, and psychological treatment) are to be awarded as being reasonably necessary treatment for the applicant during the next six months.
Until the insurer’s notice pursuant to s 78 of the 1998 Act issued on 6 December 2023, the applicant’s treatment at Barker and Reid’s practice had involved three sessions per week (one ‘hands on’ session and two guided Pilates strengthening and exercise sessions). This is the physiotherapy treatment approach approved by Associate Professor Robinson (particularly in her 6 April 2023, 25 July 2023, and 26 August 2023 reports), and found by the doctor to be significantly improving the applicant’s pain, strength and mobility. The ongoing need for this physiotherapy treatment approach was also referred to by the doctor in her 24 October 2023 report. Further, while the doctor’s 1 February 2024 report seems to only recommend “weekly physiotherapy”, I do not believe that the doctor’s position is clear as to the number of visits per week needed, especially considering the still extensive nature of the treatment needed (see paragraph 31(a) above). I therefore intend to follow the advice in Associate Professor Robinson’s earlier reports. I will be finding that the applicant requires ongoing physiotherapy treatment from Barker and Reid three times per week.
In relation to exercise physiology, Yasin recommends two sessions per week (see paragraph 40 above) and Associate Professor Robinson also makes this recommendation in her 25 July 2023 report. Although the applicant’s previous treatment with Yasin in May/June 2023 involved an average of one session per week, I again now intend to follow the advice in Associate Professor Robinson’s report. I will be finding that the applicant requires ongoing exercise physiology twice per week.
In relation to psychological treatment, it does not seem that Associate Professor Robinson makes any recommendation regarding the frequency with which it is required. Rod recommends (see paragraph 41(b) above) a minimum of one appointment for the applicant with her per month but ideally two appointments per month. In the absence of any other evidence regarding the frequency of the appointments required, I do not believe that at this stage it has been demonstrated that the applicant requires this ‘ideal’ level of two appointments per month (although of course this position may change once psychological treatment re-commences). I will be finding that the applicant requires one psychological consultation with Rod per month.
In dealing with the frequency with which the relevant treatment modalities are required by the applicant, I have found it considerably relevant that the applicant has never yet had the opportunity to undergo the entire treatment approach recommended by Associate Professor Robinson in the extract quoted at paragraph 24 above. Therefore in my opinion, while there may be arguments that she does not require the level of physiotherapy treatment and exercise physiology that I have found, when her treatment needs are analysed as a whole, the opportunity for the applicant to undergo that entire treatment approach “should not be forborne by” her. The entire treatment approach recommended by Associate Professor Robinson in this regard included three sessions of physiotherapy per week, two sessions of exercise physiology per week, and psychological treatment.

SUMMARY

I find that physiotherapy treatment is reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020. I find that she should be afforded six months of physiotherapy treatment three times per week. If the applicant requires physiotherapy treatment for a longer period, she will need to make an appropriate claim upon the respondent in this regard. I currently make no determination regarding the applicant’s entitlements after six months.

I find that exercise physiology is reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020. I find that she should be afforded six months of exercise physiology twice per week. If the applicant requires exercise physiology for a longer period, she will need to make an appropriate claim upon the respondent in this regard. I currently make no determination regarding the applicant’s entitlements after six months.
I find that psychological treatment is reasonably necessary medical treatment for the applicant as a result of her accepted injuries on 18 December 2020. I find that she should be afforded six months of psychological appointments with Rod once per month. If the applicant requires psychological treatment for a longer period, she will need to make an appropriate claim upon the respondent in this regard. I currently make no determination regarding the applicant’s entitlements after six months.
I order the respondent to pay to the applicant the total amount of $675 in past treatment expenses pursuant to s 60 of the 1987 Act, re-imbursing to her the amounts previously paid by her to Rod for psychological treatment, and to Yasin for exercise physiology.
I order that the respondent is to pay for the costs of and incidental to the applicant undergoing the following future treatment, pursuant to s 60 of the 1987 Act:
(a)    six months of physiotherapy treatment three times per week;
(b)    six months of exercise physiology twice per week, and
(c)    six months of psychological appointments with Rod once per month.

Boulaine v Giorgio Armani Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established