Douglas-Watson v St John of God

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION

Case No. M10392785

KIM DOUGLAS-WATSON	Plaintiff
v
ST JOHN OF GOD	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	Melbourne (via the Online Magistrates’ Court)
DATE OF HEARING:	7 – 8 March 2022
DATE OF DECISION:	19 May 2022
CASE MAY BE CITED AS:	Douglas-Watson v St John of God
MEDIUM NEUTRAL CITATION:	[2022] VMC 13

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WORKERS COMPENSATION – Compensation for medical and like expenses - Psychological injury resulting from an assault in the course of employment as a disability carer – Denial of liability for an emotional support dog – Whether a ‘personal and household service’ – Whether claimed expenses associated with care and ownership of support dog were compensable and were ‘reasonable costs’ – ‘Guidelines’ for the purpose of the Act - Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 223(2), 224(1), 224(2), 229(1).

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr Y C Chen	Maurice Blackburn
For the Defendant	Mr R Kumar	IDP Lawyers

HER HONOUR:

Introduction and overview

This proceeding brought under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act) concerns a Labrador dog named Winston (the dog) owned by Ms Douglas-Watson, the plaintiff.

There were two issues for my determination.

The central issue was whether or not Ms Douglas-Watson had an entitlement to the dog as an emotional support dog (requested by a medical practitioner) within the meaning of a ‘personal and household service’ as defined in s 3 of the Act.

The further issue was whether, if yes to the first question, she was entitled to claim past (and ongoing) expenses associated with the care and ownership of the dog as ‘reasonable costs’ pursuant to s 224(1) of the Act.

Ms Douglas-Watson gave oral evidence and all medical and other evidence was tendered into evidence.

Matters agreed or not disputed

Ms Douglas-Watson, who has an accepted WorkCover claim, had sustained psychological injury (and a facial injury) as a result of a physical assault on 23 March 2018 (the assault). The assault occurred in the course of her employment as a disability carer with St John of God when she was punched in the face by a resident.

From 7 April 2018, Ms Douglas-Watson has continued to receive weekly payments of compensation and medical and like expenses under her accepted claim.

On 12 August 2020, Ms Douglas-Watson's lawyers made a request by email to St John of God’s authorised Agent for funding of ‘the cost of a support/therapy dog’ (the 12 August 2020 email). The email stated that Ms Douglas-Watson had made enquiries and a Labrador puppy would be available in September 2020 at a cost of approximately $2,000. The need for the dog was stated to be ‘imperative to aid her ability to travel’. In support of the request, a medical report dated 18 October 2020 of Dr Amir Tosson, treating psychiatrist, was provided.

On 24 August 2020, Ms Douglas-Watson was invoiced by a breeder in the sum of $2,000 for a male Labrador puppy born 27 July 2020. Some weeks later, she acquired the dog which has lived with her ever since.

By notice dated 27 August 2020, the Agent denied the request for ‘a support dog’ (the decision). The Agent determined that ‘the support dog requested was not a reasonable or appropriate treatment or service’ as there was insufficient clinical research evidence that a support dog is safe and effective. The decision referred to the Act as well as to WorkSafe Victoria's ‘Non-established, new or emerging treatments and services policy’.

Under ‘Reasons for this decision’, the notice referred to the ‘Guideline/Policy’ where it stated: ‘Based on limited clinical evidence of improved outcomes for the use of assistance dogs and the costs associated with the supply and training of assistance dogs, WorkSafe does not consider that the costs are reasonable and compensable’.

Ms Douglas-Watson disputed the decision and requested conciliation. An outcome certificate was issued to permit her to bring this proceeding.

In a report dated 12 October 2021, Dr Nigel Strauss, medico-legal psychiatrist, opined that Ms Douglas-Watson would benefit from a support dog and he ‘would recommend an emotional support dog which may support Ms Douglas-Watson through her psychological problems’. He also stated: ‘I believe that the mere presence of such a dog would be beneficial to this woman’.

By way of further and better particulars of the statement of claim dated 25 June 2021, Ms Douglas-Watson claimed past expenses in the sum of $1,885.35 relating to the dog’s care including veterinary consultations and accessories such as a dog bed. She also claimed such expenses on an ongoing basis.

Finally, it should be noted that Ms Douglas-Watson was not claiming reimbursement of the purchase cost of the dog. On 25 June 2021, the Victims of Crime Assistance Tribunal (VOCAT) had awarded her the sum of $2,000 for the cost of the dog. That was after she made an application for assistance relating to the assault.

Ms Douglas-Watson’s evidence

Ms Douglas-Watson, aged 57 years, lives with a male housemate. She has had the dog living with her since about September 2020.
On most days, Ms Douglas-Watson has symptoms related to her psychological condition of anxiety including: intrusive flashbacks of the assault; confusion and forgetfulness; feelings of helplessness and anxiousness. Her condition is exacerbated by being alone and also by socialising with unfamiliar people. She is easily startled and affected by sudden or unexplained noises. If she is alone and does not have somebody in the house, she sinks into a deep depression. She is unable to sleep without medication and has nightmares.
As for treatment, Ms Douglas-Watson continues to be treated by her psychiatrist, Dr Tosson, every two to three weeks, who prescribes psychotropic medication. She sees her treating psychologist, Ms Rebecca Smith fortnightly. At one stage, she saw a different psychologist, Ms Laura Larkin, whilst Ms Smith was on extended leave. Additionally, she has had an extensive program of transient magnetic stimulation (TMS) treatment funded by WorkSafe and still has maintenance sessions.
As for how the dog impacts on her mood, she feels better when she is with Winston. When she is feeling anxious in her home, the dog gives comfort and makes her feel safe. The dog is always by her side and is an affectionate animal.
In relation to going out, before she had Winston she did not leave the home unaccompanied. She now takes the dog to the park and meets people in the park. She feels safe when out walking and socialising with people she does not know.
Other than the dog park, she does not go anywhere without her housemate or a close friend. She cannot go shopping accompanied by the dog because he lacks the necessary designation.
As for expenses incurred relating to the dog, these include annual registration, vet fees (including de-sexing and vaccinations) and accessories for the dog.
In cross-examination, she agreed it was her idea to get the dog and she suggested it to Dr Tosson. She asked Dr Tosson and Ms Larkin to write letters in support of her VOCAT application for the dog.
In cross-examination, she said she could not recall whether the isolation of lockdown due to the COVID-19 pandemic was part of her initial discussion with Dr Tosson.

In cross-examination, Ms Douglas-Watson agreed that she had been in contact with the breeder before she was invoiced for the dog. She made the decision to go ahead with the purchase of the dog although she did not have approval from the Agent. She could not recall when she first made contact with the breeder.

As for what research she had done before hand, she had worked closely with the organisation, Mind Dog, as to suitable breeds of dogs for people with post-traumatic stress disorder (PTSD) or mental health issues.

In cross-examination, she agreed that she did her own research on the internet regarding assistance or support dogs which she had provided to Ms Larkin.
Medical evidence
I now turn to the medical evidence. Whilst a considerable volume of medical evidence was tendered into evidence, I will consider only such aspects that relate to the specific questions for my determination.

Ms Rebecca Smith, treating psychologist, provided reports dated 18 July 2019, 3 March 2022 and 7 March 2022. The dual diagnoses were severe PTSD and a major depressive disorder. Ms Douglas-Watson’s psychological condition limited her from participating in social and recreational activities and from working. In her 7 March 2022 report, she stated that she agreed with Dr Strauss that Ms Douglas-Watson would benefit from an emotional support assistance dog for her mental health conditions. Having a trained emotional support dog would help manage her anxiety. A fully trained emotional support dog would also be a beneficial component for her depression treatment as she lacked motivation to perform tasks on her own such as leaving the house. In her report of 7 March 2022, Ms Smith refers variously to an emotional support assistance dog, a trained emotional assistance dog and a fully trained assistance dog.
Dr Amir Tosson treating psychiatrist, provided letters and reports dated 22 July 2020, 18 October 2020 and 20 September 2021. The dual diagnoses were severe PTSD and a major depressive disorder. Psychotropic medications were prescribed for her symptoms which included flashbacks, hypervigilance and avoiding going out. The condition affected multiple levels of functioning on a daily basis. In a brief report of 22 July 2020 addressed to VOCAT he supported her application for a support dog to help manage PTSD symptoms and improve quality of life. In his report of 18 October 2020, he noted an exacerbation of symptoms due to the COVID-19 pandemic and wrote that he supported the application for an assistance dog for her psychiatric condition, in particular PTSD, in order to support her during the isolation. Ms Douglas-Watson had reported to him that the dog had been helpful. On 20 September 2021, he advised that he had not, and would not, request from WorkSafe Victoria an assistance dog as a form of treatment due to the fact that it was beyond his area of expertise.
Ms Laura Larkin, psychologist, provided reports dated 1 October 2020 (x2) in which she confirmed the diagnoses of PTSD and a major depressive disorder. On 1 October 2020 she noted symptoms had been exacerbated by COVID-19 restrictions. She opined that Ms Douglas-Watson would benefit from therapeutic intervention with a support dog, to assist her in managing PTSD symptoms and help improve mood through behavioural activation and pleasant activity. Ms Larkin referred to a growing body of research evidence to suggest the efficacy of animal-assisted therapy for individuals living with health conditions.
Dr Strauss provided the report of 12 October 2021 (referred to previously in these reasons under the heading Matters Agreed). A detailed history was obtained including of the assault and of her anxiety symptoms such as impaired memory and concentration, mood swings, panic attacks and becoming overwhelmed. He opined that she continued to suffer from chronic PTSD with reactive depression as a consequence of the assault. He noted that the treating psychologist had suggested the therapeutic intervention of a support dog to assist in the management of PTSD and this had also been suggested by her treating psychiatrist Dr Tosson. Dr Strauss also agreed there would be benefit from a support dog and he recommended an emotional support dog which support Ms Douglas-Watson through her psychological problems. He opined that the mere presence of such a dog would be beneficial to her.
Dr Strauss then provided a brief supplementary report of 15 February 2022 in response to being provided with the report of Prof Doherty. He noted that their diagnostic conclusions were similar and he did not alter his own views.
Prof Peter Doherty, consultant psychiatrist, provided a report of 23 January 2022 at the request of St John of God ’s lawyers. A history was obtained of the assault, of her symptoms and treatment and of being supported by the dog although the dog was not trained. It was reported that the dog understood her and helped her leave the house for daily walks of about 4 kms. Caring for the dog gave her day some structure and routine. She felt safe when out with the dog which helped her interact with people. She referred to a newspaper article regarding dogs being made available to support first responders. The diagnosis was of PTSD with features of a major depressive disorder for which medication was prescribed.
Other background medical evidence tendered into evidence by the plaintiff included: referral letters of Dr David Phan, treating GP; reports of Dr Ganesan Duraiswamy, former treating psychiatrist, and another treating psychiatrist, Dr Tarun Yadav, regarding the TMS treatment. None of this additional material made reference to the dog as a form of treatment or indeed at all.
Other expert evidence
Mr Richard Lord, chief executive officer of Assistance Dogs Australia for the past 17 years, prepared for St John of God’s lawyers a report dated 17 September 2021 with the title ‘Report pertaining to Service Dogs for those with PTSD’. Mr Lord referred to the definition of ‘assistance animal’ contained in the Disability Discrimination Act 1992 (Cth).[1] Under that Act, an assistance animal was a dog or other animal that had been accredited by an animal training organisation under state laws to alleviate the effect of a disability. Mr Lord expanded on the difference between assistance dogs and support dogs.
[1] s 9(2).
Assistance dogs, which were certified (and usually bred) by accredited organisations, were of three main types: seeing-eye dogs; hearing dogs; and service (or as generally known in Australia) assistance dogs for persons with diverse physical or neurological disabilities.
Support dogs, which meet no set standards, were companion or pet dogs offering an emotional connection to their owner. Support dogs provide support through companionship and can help ease anxiety, depression and certain phobias. Users of support dogs do not receive the same public access rights for their dogs such as accompanying owners into shopping centres.
Analysis
Legislative framework
The Act defines ‘personal and household service’[2] to mean the provision of any one or more of the following of a kind or type, and by a person, approved by the Authority—
[2] Ibid, s 3.
(a)attendant care;
(b)household help;
(c)transportation costs;
(d)at the request of a medical practitioner, an aid, assistance, appliance, apparatus or service, other than a medical service, hospital service or nursing service.
Division 7 of Part 6 of the Act which is headed ‘Compensation for medical and like services’, contains a definition of ‘reasonable costs’ in relation to a service: s 223(2). The definition provides that regard must be had to:
(i) the service or provision actually rendered; and
(ii) the necessity of the service or provision in the circumstances; and
(iii) any guidelines made by the Authority.

41 The liability of an employer (or the authorised Agent) to pay the reasonable costs of personal and household services to a worker injured in compensable circumstances is established by s 224(1) of the Act.

As with the definition of ‘reasonable costs’ in s 223(1), there is also reference in s 224(2) to guidelines which the Authority may make identifying services, or services of a class of services, referred to in s 224(1)(a), for which approval should be sought from the Authority before the services are provided.

Additionally, on the need for a nexus between injury and claims under Division 7, s 229(1) provides that there is no liability to pay as compensation the cost of a particular thing ‘unless the provision of a particular thing to the worker is a medical service, or a hospital service provided as a result of the injury…’
Consideration
There was no dispute that an objective test is to be applied in relation to an entitlement to compensation for a personal and household service with respect to ‘reasonable costs’ and ‘necessity’.
In relation to these terms, I am guided by Russell v Transport Accident Commission,[3] an appeal from a decision made under the Transport Accident Act 1996. In that Act, the term ‘reasonable’ is similarly defined to have regard to ‘the necessity of the service or provision … in the circumstances’.[4] His Honour had this to say:
[3] [2004] VSC 442 (‘Russell’).
[4] Transport Accident Act 1996, s 3(1)(c)(ii).
In assessing what expenditure is reasonable, one must therefore consider the necessity of the service upon which the expenditure is proposed to be effected. In this context the word "necessity" is, I think, of some importance. That word is somewhat flexible in its scope. It does not, as I apprehend it, include only services which are vital for the continued reasonable existence of the victim as a functioning member of the community. What is necessary would include treatment that is of a much lower urgency than that. On the other hand, when one reaches the other point of the scale, one must presumably exclude as not being necessary treatment which is of merely temporary palliative effect, especially where that effect is not measurable.[5]
[5] Russell [2004] VSC 442, [10].
In Cornell v State of Victoria,[6] Magistrate Garnett, observed that in determining the question of whether a personal and household service was ‘reasonably necessary’, regard must be had to both the nature of the compensable injury; and the circumstances of the particular case. Such circumstances, include, but are not limited to: the medical opinions as to appropriateness, alternate treatments, cost, purported effectiveness and other forms of treatment currently being provided to the injured worker.
[6] [2011] VMC 68 (‘Cornell’).
In Watson v Yooralla,[7] a case concerning whether worker was entitled to compensation for a modification to her campervan to allow her to use it for holidays and recreation, Magistrate Garnett again referred to the need to consider all the circumstances of the case. He also had this to say regarding the operation of the guidelines and the Act itself:
[7] [2020] VMC 30, [11] (‘Watson’).
Whilst the court should have regard to the matters set out in WorkSafe’s Guidelines, the ultimate test to apply in accordance with the Act, is one of ‘reasonableness’. This test is to be given an objective interpretation. In the present case, the issue is whether the modification to the Campervan is reasonable and necessary having regard to all the circumstances including the nature and extent of the injury sustained by [the worker] and the impact it has had on her activities of daily living.
In Taylor v Tehree Magistrate Wright observed (in a case decided under the predecessor provisions of the Accident Compensation Act 1985) that the term ‘guidelines’ should be strictly construed and that only documents referred to strictly as being ‘guidelines’ should be regarded as such for the purposes of the Act.[8]
[8] [2015] VMC 42 (‘Taylor’).
Magistrate Wright considered that the Claims Manual did not fall in the category of ‘guidelines’ although it may provide some guidance. I respectfully agree.
I now turn to submissions and the evidence with respect to the two questions I must determine.
Does Ms Douglas-Watson have an entitlement under the Act to a ‘personal and household service’, being the dog as an ‘emotional support dog’?
At the outset of hearing, Counsel for St John of God raised the issue of clarity of terminology regarding the type of dog that Ms Douglas-Watson was claiming as a ‘personal and household service’. That was because of the various descriptors applied to the dog such as support, emotional support, assistance and so on.

It was primarily on that basis (as well as late service) that Counsel for St John of God had objected to admitting into evidence the report of the treating psychologist Ms Smith of 7 March 2022.[9] It was submitted that Ms Smith’s loose and interchangeable use of terms created doubt as to the case that the defendant was coming to Court to answer. For example, at one point, Ms Smith refers to ‘an emotional support assistance dog’.
[9] The report was served by the plaintiff’s solicitors on the morning of the hearing.
Counsel for Ms Douglas-Watson indicated resistance to attempts taken by the defendant to ‘dichotomise’ the terms ‘assistance dog’ and ‘emotional support dog’ based on the report of Mr Lord. It was contended that was a conceptualisation employed by Counsel for St John of God that went to the question of whether an emotional support dog could be trained or not.
This issue of terminology, and the lack of clarity of the plaintiff’s original pleadings on the point, had been pressed by St John of God at a contest mention before the Court on an earlier date. As a result, the Court had made orders requiring that the plaintiff serve additional further and better particulars.

Ms Douglas-Watson then particularised her prayer for relief to be for: ‘an Emotional Support Dog as recommended by Dr Strauss in his report of 12 October 2021’.[10]

Following further discussion with Counsel at the outset of the case, Ms Douglas-Watson’s Counsel confirmed that, notwithstanding the mixed terms used by Ms Smith, the plaintiff’s claim remained in accordance with the further and better particulars of 9 January 2022.

[10] Further and Better Particulars of the Statement of Claim dated 9 November 2021.

Ultimately, Counsel for Ms Douglas-Watson confirmed that the plaintiff sought to rely on Ms Smith’s report of 7 March 2022 as an updated opinion of the current treating psychologist. On that basis, Counsel St John of God did not oppose the report being tendered into evidence and made submissions regarding its weight.
Also, in the course of the hearing, Counsel for Ms Douglas-Watson informed the Court that a claim for specialist training that had formed part of her prayer for relief for the dog was abandoned.
Submissions
With respect to the definition of ‘personal and household service’, there was agreement the relevant limb was that of (d) and specifically ‘an aid, assistance, appliance, apparatus or service’.
For the purposes of paragraph (d) of the definition of ‘personal and household service’, it was accepted by Counsel for St John of God that there had been ‘a request of a medical practitioner’.
It was conceded that was either from Dr Tosson (as per his report of 18 October 2020) in which he ‘supported the application for an assistance dog for psychiatric condition, in particular PTSD’ or by Dr Strauss (as per his 12 October 2021 report).
The next issue that was the subject of submissions as whether an animal could be a ‘personal and household service’ within the meaning of paragraph (d) at all.
Counsel for St John of God contended that to say an animal was an aid, assistance, appliance or service simply stretched those terms beyond their natural meaning. Further, it was plain from the first part of the definition that the aid or service had to be provided ‘by a person’.
On the other hand, Counsel for Ms Douglas-Watson submitted that the terms ‘aid, assistance, … service’ were of broad ambit and ought to be interpreted accordingly.
65 As authority for that contention, Counsel referred to the classic formulation of the Court of Appeal in DLZ v Transport Accident Commission.[11] The Court of Appeal had this to say about the construction of a definition in the Transport Accident Act 1996: ‘it is now necessary to construe paragraph (i) of the definition of ‘medical service’, by reference to its text, in its context, and bearing in mind the legislative purpose of the provisions of the Act’.[12]
[11] [2017] VSCA 134.
[12] Ibid, [37].
Applying that guidance, I prefer the submissions of Counsel for Ms Douglas-Watson on this issue. The ordinary dictionary meanings of words such as ‘aid’ and ‘service’ are broad. For example, the Cambridge Dictionary defines ‘aid’ as ‘help or support’. Such terms should be so construed particularly when read in the context of beneficial legislation.
As for the submission by Counsel for St John of God that the term ‘and by a person’ precluded a finding that an animal could be an ‘aid’ or ‘service’, I reject that submission for the same reasons. In none of the cases referred to previously such as Watson and Taylor was there any consideration of the term ‘and by a person’ as being a requisite step.
Ultimately, Counsel for St John of God, quite sensibly in my view, did not persist with that submission, conceding that it could not be asserted WorkSafe had never, and would never accept liability for an assistance animal as a ‘personal and household service’.
Indeed, that was acknowledged obliquely under the heading ‘Reasons for this decision’ in the decision of 27 August 2020 where it was stated that the denial was based on ‘limited clinical evidence of improved outcomes for the use of assistance dogs…’ and went onto refer to circumstances when training for such dogs might be approved.
Ultimately, the real dispute turned on an objective assessment of the reasonable necessity of the dog and whether there was, on that basis, an entitlement to the dog as a personal and household service.
Counsel for Ms Douglas-Watson submitted that the weight of evidence was compelling on the therapeutic benefits of the dog in the management of her symptoms. That was based on her own evidence that she felt better when she was with Winston by which she meant she was comforted and had reduced anxiousness.
On an objective assessment, the benefit was measurable, it was submitted, based on Ms Douglas-Watson’s evidence that she was able to leave her home and walk on a daily basis interacting with unfamiliar people which contrasted to her situation before she obtained the dog. That the dog helped her manage her symptoms was corroborated and supported by the opinions of Dr Strauss, Prof Doherty and the treating practitioners.
On the other hand, Counsel for St John of God submitted that whilst Ms Douglas-Watson may well say she ‘felt better’ when she was with the dog, that was not the same as measurable therapeutic benefit. Further, even were it accepted that Ms Douglas-Watson ‘felt better’ having the dog, that did not equate to being a ‘necessity’ as per s 223(2)(a)(ii) nor ‘provided as a result of a work-related injury or illness’ as per s 229(1).
Counsel for St John of God relied also (as the Agent had done) on WorkSafe Victoria's ‘Non-established, new or emerging treatments and services policy’ (the Policy). Under that heading, there was a further large heading: ‘Guidelines for providing Non-established, New or Emerging Treatments and Services Policy’.
Under the heading, ‘What can the agent pay for in relation to non-established, new or emerging treatment and services?’, the Policy states that the Agent can pay the reasonable costs of such treatments and services that are:
·     Required as a result of a work-related injury or illness
·     Required following a reasonable trial of all available established treatments and services
·     Considered for an exceptional circumstance
·     Supported by strong clinical evidence (NHMRC level 1 or 2)
·     The subject of a written request for prior approval from a medical practitioner
·     In accordance with relevant WorkSafe guidelines.[13]
[13]          Amended Defendant’s Court Book (ADCB), 55-56.
Regarding the Policy, further to my previous discussion in relation to the analysis in Taylor, I find that this document (unlike the Claims Manual) contains ‘guidelines’ for the purposes of the Act. By that, I mean in the context of Division 7, specifically, the reference to the need to have regard to guidelines in considering ‘reasonable costs’ in s 223(2) and in the power of the Authority to make guidelines ‘identifying services … for which approval should be sought from the Authority or self-insurer before the services are provided’.
Having considered submissions, I now assess the evidence and make my further findings.
Findings
I find (and there seems to me no real basis for an alternative conclusion) that Winston the Labrador was an emotional support dog or a support dog in the sense referred to by Mr Lord.
I make that finding based on the evidence that the dog was a companion animal for Ms Douglas-Watson without having been accredited or certified or meeting any specific standards. As Mr Lord noted, such a companion animal can offer an emotional connection to their owner.
However, on an objective assessment on the whole of the evidence before me, particularly the medical evidence, I am not persuaded of the reasonable necessity of the dog as a personal and household service for which the Agent has a liability under Division 7 of the Act.
I found Ms Douglas-Watson to be an honest and credible witness. She answered questions directly and without embellishment. She made concessions against interest such as that: it was her own idea to get the dog; she did her own research and found articles which were provided to and relied upon by Ms Larkin; and she had decided to purchase the dog prior to seeking approval.
I accept as genuine her evidence of continuing to experience symptoms related to her accepted psychological condition including: anxiousness, flashbacks; forgetfulness; impaired sleep and feelings of helplessness and anxiousness.
I also accept her evidence that she feels comforted and better in the presence of the dog, that having the dog encourages her to leave the house on a daily basis to walk the dog in her local area including in parks. Her evidence was that this was a change to her situation compared to before she acquired the dog. She nevertheless remained reliant on the housemate or on friends to leave the house for many activities, for example to go shopping, given the dog lacked the accreditation of an assistance dog.
However, whilst I accept, as I have said, Ms Douglas-Watson’s own evidence regarding the comfort and routine provided by the dog, my task is to make an objective assessment of the whole of the evidence as to reasonable necessity of the dog as a personal and household service.
The evidence was that some four years on from the assault, Ms Douglas-Watson continues to require fairly intensive and comprehensive clinical management and treatment for her psychological condition. This includes: psychotropic medication (Effexor 225 mgs daily, Oxazepam 15 mgs daily and Temazepam most nights); frequent psychiatric consultations with Dr Tosson (every two to three weeks); and frequent psychological consultations with Ms Smith. Additionally, she requires ‘maintenance’ sessions for the TMS treatment.
There was, in my view, therefore no evidence of the dog having a therapeutic benefit in the measurable sense referred to in Russell. There was no evidence of the dog having, for example, a consequential effect of any reduced need for clinical treatment or any real alteration in the very restricted nature of her activities.
One of the requirements of the Policy Guidelines is that there be ‘strong clinical evidence’ in relation to the reasonable necessity of the service.
To my mind, that requirement is, in any event, consistent with the case law and the treatment being ‘measurable’ and the considerations referred to previously in Cornell regarding the need to consider medical opinions as to appropriateness, alternate treatments, cost, purported effectiveness and other forms of treatment currently being provided to the injured worker.
I now turn to further assess the medical evidence.
In a brief letter dated 22 July 2020 to VOCAT, Dr Tosson wrote of supporting ‘the application for a support dog ‘to help manage the symptoms of PTSD and improve her quality of life’.
However, by the time of his report of 18 October 2020, Dr Tosson’s position has altered slightly. He stated that he supported the application ‘for an assistance dog’ for her psychiatric condition ‘to support her during the isolation’. Also at that time, Dr Tosson made specific note of the fact that since the COVID-19 pandemic there had been an exacerbation of symptoms.
Dr Tosson appears to accept the benefits of a companion dog specifically in the context of the isolation of COVID-19 restrictions. He opined only that such a dog may alleviate symptoms or be of therapeutic benefit.
Just as Ms Smith does in her report of 7 March 2022, Dr Tosson has used the terms ‘support’ and ‘assistance’ dogs apparently interchangeably and it is not evident that he was provided with the Assistance Dogs definitions.
Then, to the extent that he had provided some support for a dog, Dr Tosson has stated in plain terms in the letter of 20 September 2021 to Ms Douglas-Watson’s solicitors that he has not and will not request from WorkSafe ‘an assistance dog as a form of treatment for Ms Douglas-Watson’s psychiatric treatment’. His stated reason is that it is beyond his area of expertise.
I agree with the submission of Counsel for St John of God that the letter of 20 September 2021 does reduce the overall weight of Dr Tosson’s apparent previous endorsement of the idea of a support (or indeed assistance) dog for therapeutic purposes.
Whilst Ms Larkin supported Ms Douglas-Watson in her ‘application for a therapeutic support dog’ to improve her quality of life and manage PTSD symptoms, she had not continued to treat Ms Douglas-Watson beyond 2020.
I therefore attribute less weight to Ms Larkin’s opinion as she could provide no assistance on the effectiveness of the dog as a form of treatment. She did state she considered that in mid 2020 there had been an exacerbation of symptoms due to the COVID-19 pandemic restrictions.
Ms Larkin referred to a ‘growing body of research evidence to suggest the efficacy of animal assisted therapy’ which had been provided to her by Ms Douglas-Watson. Also, on a review of those titles (which appear as a footnote in her report of 1 October 2020), most refer to service or assistance dogs or psychiatric assistance dogs rather than support dogs.
In assessing the overall weight of Dr Tosson’s and Ms Larkin’s opinions, I am mindful of Ms Douglas-Watson’s own evidence, that it was her own idea to acquire the dog, that she researched it and she suggested it to Dr Tosson and Ms Larkin and asked for their support (initially for the VOCAT application).
To my mind, the weight of their evidence is also at least somewhat reduced on that basis.
Dr Strauss, in providing a medico-legal opinion, has stated that he agreed with, and has essentially endorsed what has been suggested by the treating psychologist and the treating psychiatrist being the ‘therapeutic intervention of a support dog to assist’ her.
To my mind, his opinion is also therefore of lesser weight given my previous findings in relation to Dr Tosson’s and Ms Larkin’s views about the dog.
Importantly, also, Dr Strauss does not expand on details of how there has been or would be therapeutic benefit from the dog in any measurable sense. Indeed, he opines that there would be an indefinite need for psychotropic medication and at least six to twelve months of treatment at current frequency.
It seems to me that Dr Strauss’ opinion that such a dog 'may support Ms Douglas-Watson through her psychological problems’ (emphasis added) and that the mere presence of such a dog ‘would be beneficial’ is neither strong clinical evidence nor suggestive of any measurable benefit.
Finally, I attribute little or no weight to the opinion of Ms Smith. The evidence was that she saw Ms Douglas-Watson on 19 occasions after she resumed treatment of her in September 2020. Yet her report of 3 March 2022 makes no mention of the dog at all in her apparently otherwise comprehensive discussion of treatment, symptoms and prognosis.
Then, in her supplementary report of 7 March 2022 after being provided with the report of Dr Strauss, she stated her agreement with him that Ms Douglas-Watson would benefit from ‘an emotional support assistance dog’.
Apart from the confusion of terms, I am troubled by her opinion for two reasons.
The first is her opinion that Ms Douglas-Watson ‘would benefit’ from such a dog. Yet, the evidence was she had had the dog for the entirety of the time she has treated her since September 2020. To my mind, if there had been effectiveness in terms of therapeutic benefit from the dog, that would have been at least some reference to that in her report of 3 March 2022.
The second is that her opinion appears to be based on a misapprehension about the dog. According to her report of 7 March 2022, she refers to a trained dog and then a fully trained dog rather than a support or companion dog such as Winston.
Dr Doherty does not offer any specific opinion on the therapeutic benefit of an emotional support dog other than to report the history obtained that Ms Douglas-Watson feels supported by the dog and walks daily and has more structure. He also has this to say: ‘The worker has a reliance on support from clinicians treating her, the mental health support worker, her friends and her dog’.
As for Mr Lord, he stated that a support dog can ‘provide support through companionship and help ease anxiety’ and other conditions. Other than being the CEO of Assistance Australia for some 17 years, his qualifications as an expert on the therapeutic benefits of a dog of a form of treatment are unclear.
Weighing the whole of the evidence, I conclude, as I have said, that Ms Douglas-Watson decided she wanted a dog during COVID-19 restrictions, has done some online research and has asked for the support of her psychologist and her psychiatrist which they have given.
This was, of course, a time when Victorians were experiencing lockdowns and restrictions of movement due to the COVID-19 pandemic. Indeed, I observe in passing that it was widely reported in the media at the time that many people in lockdown acquired companion animals and pets during this period.
Whilst it is true that applying the guidance of Russell that Ms Douglas-Watson does not need to establish that the dog was ‘vital for the continued reasonable existence’ of the injured person, nevertheless Harper J said there that one must presumably exclude treatment which is palliative and where that effect is not measurable.
That is the case here, for the reasons stated, I conclude the dog was a comfort to Ms Douglas-Watson but was not, objectively assessed, reasonably necessary in all the circumstances.
For completeness, I note that neither Counsel in submissions made in reference to the ‘exceptional circumstance’ basis for paying the ‘reasonable costs’ of a ‘personal household service’ which appears in the Policy. It is not necessary for me to make a finding about this given my findings regarding the evidence as to reasonable necessity, but I do not consider there to have been such an exceptional circumstance in this case.
For all these reasons, I conclude that the dog, which is an emotional support dog, is not a personal and household service for which the Agent has liability to s 224(1) of the Act.
There is a further basis upon which I find that there is not a liability on the part of the Agent.
In addition to my findings in relation to the weight of evidence not supporting the reasonable necessity of the dog, I agree with Counsel for St John of God that there was another hurdle for Ms Douglas-Watson in relation to her contention that the dog was a ‘personal and household service’.
Whilst it was accepted by the Counsel for St John of God that there had been ‘a request by a medical practitioner’, it was submitted that there was non-compliance by Ms Douglas-Watson with the requirement that services should not be purchased without prior approval by the requirement that Agent.

The requirement for prior approval is set out in Part 4.5.2 of the Authority’s Claims Manual which provided that ‘aids and appliances’ must be requested by a medical practitioner and require prior approval by the Agent.
More importantly, given my findings about the Policy as ‘guidelines’ for the purposes of the Act as opposed to the Claims Manual, it is also stated in that Policy that there must be ‘a written request for prior approval from a medical practitioner’.[14] (emphasis added)
[14] ADCB, 56.

On Ms Douglas-Watson’s own evidence, in cross-examination, she had made the decision to go ahead with the purchase of the dog although she did not have approval from the Agent. She was invoiced for a male Labrador puppy on 24 August 2020 three days prior to the notice of decision.

Accordingly, I also find the Agent has no liability for the dog as an emotional support dog as a ‘personal and household service’ on the grounds that she had not obtained prior approval before acquiring that service.

Were past (and ongoing) expenses claimed by Ms Douglas-Watson associated with the care and ownership of the dog ‘reasonable costs’ within the meaning of s 224(1) of the Act.

Given my previous findings, it is not strictly necessary for me to consider this question.
Ms Douglas-Watson seeks approximately $1,800 for various expenses which could be described as the usual costs of keeping a domestic pet. She further seeks ongoing costs for expenses of the same nature.
It seems to me that the claim in relation to expenditure regarding the dog was highly problematic. Even it were accepted that an emotional support dog was an aid or service within paragraph (d) of the definition of a ‘personal and household service’, the Act simply did not allow for the costs of maintenance or repair of an aid as a ‘personal and household service’.
By contrast, within the sub-paragraph (j) of the definition of ‘medical service’ in s 3, the Act did make specific allowance for ‘the provision of anything needed to operate, run, maintain or repair’ equipment. However, equipment was very specifically identified as medical equipment such as ventilators and so on as defined in sub-paragraphs (h) and (i).
Similarly, sub-paragraphs (b) and (c) of the definition of ‘medical service’ in s 3, allowed for the ‘repair, adjustment or replacement’ of aids such as crutches, orthoses, hearing aids and so on.
On that basis, it would seem entirely consistent therefore that the worker would be responsible for any ongoing maintenance of items that fell outside these specified provisions.
Moreover, as for expenses claimed that related to the dog, if there were compensable expenses, such expenses needed to be ‘reasonable costs’ and over and above the expense of keeping a domestic pet.
Finally, it would seem to me that pursuant to s 229(1) the Agent is not liable to pay as compensation to the worker the ordinary costs associated with owning and caring for an emotional support dog or domestic pet.
Conclusion
For these reasons, I would dismiss the proceeding.

MAGISTRATE HOARE

19 MAY 2022

[2022] VMC 13

19 May 2022