Goode v Racing NSW
[2022] NSWPIC 284
•10 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Goode v Racing NSW [2022] NSWPIC 284 |
| APPLICANT: | Paul Goode |
| RESPONDENT: | Racing NSW |
| Member: | John Wynyard |
| DATE OF DECISION: | 10 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Section 60 of the Workers Compensation Act 1987 (1987 Act) application relating to expenses occurred from 2012; applicant rendered paraplegic in 2009 and returned to UK in 2012 as he had no family in Sydney; whether the cost of relocation was medical or related treatment pursuant to section 59 (1987 Act); whether relocation costs were reasonably necessary pursuant to section 60 (1987 Act); whether other costs incurred whilst in North Yorkshire such as heating, a robotic lawnmower and painting and decorating were section 60 (1987 Act) expenses; whether respondent should be permitted to raise Anshun estoppel: Held- section 59 (1987 Act) refers to medical and related treatment so relocation expenses within ambit of s 59 definitions; NSW v Bunce applied; Rose v Health Commission applied; other claims also within ambit; Honarvar considered; Western Sydney v Everill applied; Clampett considered; section 60 (1987 Act) expenses reasonably necessary, Hesami considered, Diab applied; application by respondent pursuant to section 289A Workplace Injury Management and Workers Compensation Act 1998 to raise Anshun point rejected; Geary applied. |
| determinations made: | 1. 1. There is an award pursuant to s 60 of the Workers Compensation Act 1987 in favour of the applicant in the following amounts: a. (a) $2,650 from Walkers moving and storage dated 18 November 2009; b. (b) $15,320 from Grace Removals Group dated 14 March 2012; c. (c) $12,996 for two business class seats from Emirates Flight Centre dated 18 May 2012; d. (d) $2,100 for excess baggage from Emirates Flight Centre; e. (e) GBP 58.9 import tax from UK Customs dated 21 June 2012; f. (f) $3,360 from Jetpets for the transportation of Mr Goode’s dog, dated 1 May 2012; g. (g) $567 for medical supplies posted to the UK dated 8 June 2012; h. (h) the respondent will pay the cost of 65% of the applicant’s fuel oil per annum from 2012 to date and continuing; i. (i) GBP 2,190 from Sam Turner & Sons dated 29 June 2020 for the purchase of the Husqvarna Automower, and j. (j) GBP 6,525.17 to DJ Smith, painter and decorator. |
STATEMENT OF REASONS
BACKGROUND
a.1. Paul Goode, the applicant, brings an action for the payment of medical and related treatment against Racing NSW, the respondent, in respect of a catastrophic injury which occurred on 29 June 2009.
b.2. Dispute notices were issued and the proceedings were subsequently commenced by the filing of an Application to Resolve a Dispute (ARD) and Reply thereto.
ISSUES FOR DETERMINATION
a.3. The parties agree that the following issues remain in dispute:
a. (a) are the claims, or some of them, defeated by the provisions of s 59 of the Workers Compensation Act 1987 (1987 Act);
b. (b) are those expenses that fall within s 60 of the 1987 Act reasonably necessary, and
c. (c) is the respondent able to raise an Anshun estoppel.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
a.4. This matter was heard by way of a telephone conciliation and arbitration conference on 1 March 2022. The applicant was represented by Mr Carmine Santone of Santone Lawyers, instructing Ms Eraine Grotte of counsel. The respondent was represented by Tarana Singh from Messrs HWL Ebsworth Lawyers instructing Mr David Baran of counsel. Also in attendance was Ms Joanna Riai from Racing NSW.
b.5. 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.
EVIDENCE
Documentary Evidence
a.6. The following documents were in evidence before the Commission and considered in making this determination:
b. (a) ARD and attached documents;
c. (b) Repy and attached documents;
d. (c) Application to Admit Late Documents (ALD) and attached documents;
e. (d) respondent’s outline of submissions dated 1 March 2022;
f. (e) written submissions by the applicant dated 15 March 2022 containing schedule of claims;
g. (f) respondent written submissions dated 22 March 2022, and
h. (g) applicant further written submission dated 23 March 2022.
Oral evidence
a.7. No application was made in respect to oral evidence.
FINDINGS AND REASONS
Relevant factual background
a.8. Mr Goode was rendered paraplegic when he fell from the horse he was riding in the course of his employment with the respondent on 29 June 2009.
b.9. Mr Goode was originally from the UK, whence he has returned and this action concerns a number of items for which he seeks both recompense and continuing payments pursuant to the provisions of Division 3 of Part 3 of the 1987 Act.
c.10. The applicant seeks compensation in regard to the following items:
a. (a) furniture removal and storage costs in Australia when Mr Goode relocated back to the UK;
b. (b) relocation costs, which can be subdivided into six subheadings:
a.(i) removal costs to the UK;
b.(ii) the cost of relocating Mr Goode’s pet to the UK;
c.(iii) two business class flights to the UK;
d.(iv) the cost of posting medical supplies to the UK from Australia;
e.(v) excess baggage fee, and
f.(vi) customs tax.
a. (c) the cost of heating fuel;
b. (d) the cost of a robotic lawnmower, and
c. (e) the cost of painting and decorating.
a.11. Dispute notices were issued on 29 May 2013, 19 December 2013, and 29 April 2020.
a.12. On 22 April 2020 consent orders were made by Member Anthony Scarcella in matter 868/20 in the following terms, relevantly:
“2. Award for the respondent in relation to the claim for swimming pool expenses itemised 1 to 8 inclusive of the Schedule of Expenses under section 60 of the Workers Compensation Act 1987 attached to the applicant’s Application to Admit Late Documents dated 24 March 2020.
3. Award for the applicant in relation to the claim for IVF treatment expenses itemised 9 to 23 inclusive of the Schedule of Expenses under section 60 of the Workers Compensation Act 1987 attached to the applicant’s Application to Admit Late Documents dated 24 March 2020.
4. The applicant’s claim for rehabilitation equipment expenses being items 24, 27 and 28 (Able Rehabilitation Equipment) in the Schedule of Expenses under section 60 of the Workers Compensation Act 1987 attached to the applicant’s Application to Admit Late Documents dated 24 March 2020 is discontinued.
5. The applicant’s claim for house repairs under section 60 of the Workers Compensation Act 1987 in accordance with the invoice issued by D J Smith, Painter and Decorator dated 9 December 2012 and reproduced in the Application to Resolve a Dispute at page 242 is discontinued.
6. The respondent agrees to pay the applicant’s house repair expenses under section 60 of the Workers Compensation Act 1987 in accordance with the invoice issued by D J Smith, Painter and Decorator dated 18 October 2018 and reproduced in the Application to Resolve a Dispute at page 243 in the sum of GBP£1,093.44.
7. The respondent agrees to pay the applicant’s hotel expenses under section 60 of the Workers Compensation Act 1987 in accordance with the documentation and invoice issued by Blackthorn Lodge and reproduced in the Application to Resolve a Dispute at pages 244-245 in the sum of GBP£6,760.
8. The respondent agrees to pay for the claimed Homefront Luxurious Electric Foot Warmer.”
THE EVIDENCE
a.13. On 31 January 2022 at teleconference I directed that schedules be lodged identifying the claimed medical expenses. The schedules received in response bear little resemblance to each other.
a.14. In particular, the schedule lodged by the applicant with his written submissions sought payment of a number of medical expenses which were not the subject of submissions and accordingly will not be the subject of any determination. Similarly swimming pool expenses were claimed in the schedule together with hotel expenses, neither of which were the subject of submissions.
b.15. A schedule was also attached to the ARD, which again differed from the other two, but which addressed the matters in contention. I shall refer to it as the applicant’s first schedule. The respondent referred to Australian currency in its schedule, but in view of the fact that the various expenses were incurred in the UK, I assume that they were intended to refer to Great Britain pounds, which I have described as “GBP” in discussing the various claims.
c.16. It is convenient to consider the evidence tendered in relation to each claim separately.
Furniture removal and storage costs in Australia
a.17. The costs claimed were:
a. (a) $2,650 from Walkers moving and storage dated 18 November 2009. (This was not included in the applicant’s schedules, but was acknowledged in the respondent’s schedule), and
b. (b) $15,320 from Grace Removals Group dated 14 March 2012.
a.18. Ms Grotte made no specific submission regarding this topic but directed her submissions to a combination of this topic and the claim for relocation costs.
Relocation costs
a.19. The costs claimed were:
b. (a) $12,996 for two business class seats from Emirates Flight Centre dated 18 May 2012;
c. (b) $2,100 for excess baggage from Emirates Flight Centre;
d. (c) GBP58.9 import tax from UK Customs dated 21 June 2012;
e. (d) $3,360 from Jetpets for the transportation of Mr Goode’s dog, dated 1 May 2012, and
f. (e) $567 for medical supplies posted to the UK dated 8 June 2012.
g.20. In his statement dated 10 December 2021, Mr Goode said:
“14. If I did not have the accident, I would not be moving to the UK.
15. My wife and I decided to move back to the UK to be closer with our family and friends. In Australia, we do not have any family, and most of our friends have stopped contacting us as frequently since my accident.
16. It was important for me to have a wider support network for not only physical assistance but also from my mental well-being.”
a.21. Mr Goode was originally under the care of The Spinal Outreach Service when he was first recovering from his accident. In a report of 15 May 2012 the social worker with the Service, Eileen Van Dijk stated:
“Paul is managing well following his spinal cord injury. He has successfully set up his own business within the racing fraternity. Paul reports that he and Catherine miss the support network of family and friends so soon to relocate back to the UK.”
a.22. A “Report on the Immediate Needs of Paul Goode” dated 19 October 2020 was lodged by the applicant. The report was compiled by Angela Molnar, who described herself as “case manager”, but from the expertise she displayed throughout a most comprehensive report, I assume to be an occupational therapist. Ms Molnar was employed by “Bush & Co” who also gave no further information as to what their business was, but again I assume it was to do with the rehabilitation of injured people. The address given was in Northamptonshire, UK. The report was in fact addressed to the respondent.
b.23. The report noted that Mr and Mrs Goode had purchased their property on return from Sydney in 2012. It was privately owned by Mr Goode and was a three-bedroom detached house which had undergone extensive redesign to accommodate Mr Goode’s condition. It had an office which enabled Mrs Goode to work from home on occasion. Mr Goode’s mother and father-in-law lived locally and he was visited regularly by his sister-in-law. Ms Molnar reported that Mr Goode had a good circle of friends in the village where he lived whom he saw weekly, subject to Covid 19 restrictions. Ms Molnar noted that Mr Goode had previously loved gardening and indicated that some raised garden beds would enable him to regain his gardening skills.
a.24. An Occupational Therapy report was prepared on 6 February 2014 by Ms A Wilkinson and Mrs E Lambert, entitled a Multi Discipline Report (The Occupational Therapy report). It said:
“Period Two – From 3.07.2009 to 28.01.2010 (29.86 Weeks)
Paul was transferred to the ward for rehabilitation. Catherine would visit daily between 5.30pm and 10.30pm. She would cook and take his tea for him as hospital food was not satisfactory. In addition, she was assisting with exercises and showering Paul as the nursing staff were so busy. During this period of time, Paul’s Mother and Nana flew to Australia to visit and help with the house and garden as Catherine was working full time. Also, from November 2009, Paul’s Mother lived at the house for six months and Paul’s Sister lived at the house for nine months. It was reported during this time that Catherine was working full time and therefore Paul’s mother and sister helped with taking Paul to hospital and doctor appointments, laundry, cleaning and gardening. During this time, and after work, Catherine would take over with any tasks that needed completing.”
a.25. On 4 November 2021 Dr Duncan Rogers, Mr Goode’s general practitioner (GP) for a number of years at that stage, said:
“Yes, I feel it was entirely reasonable for him to relocate to the UK to have support of friends and family.”
a.26. The authors of the Occupational Therapy report discussed Mr Goode’s needs in travelling. They said:
“If Paul and his wife were to go on a long haul flight they would need to fly
business class to give Paul room to lie down and change his position.”
a.27. When discussing holidays, the authors advised:
“…We suggest the difference between travelling economy as Paul would usually have done and travelling business class as he now needs to do to allow optimum positioning and to minimise discomfort and pain. It was reported to us by Mr Goode that the Spinal Doctor in Australia advised not to fly economy now.”
a.28. Dr Monica Ling, Consultant Physician in Spinal & Rehabilitation Medicine at the Prince of Wales Hospital, reported to Mr Goode’s then solicitors on 7 June 2010. Dr Ling advised:
“…. Aeroplane flights should be booked in business class due to the need for increased seating space...”
Heating oil
a.29. The applicant seeks the cost of heating fuel due to his need to regulate his body temperature. The claim was for “$315.47” according to the respondent in its schedule, but the applicant’s figure in his first schedule was for GBP12,038.26.
b.30. The Occupational Therapy report of Ms A Wilkinson and Mrs Lambert stated that thermo regulation was often difficult for people who had suffered spinal injury.
c.31. The authors advised:
“3.45 Since the incident, Mr Goode advised that he has an inability to regulate his temperature, poikilothermia. The condition means that his health can deteriorate quickly and can affect him for several days. At these times he tends to rest and utilise equipment such as the recline chair, electric foot warmer, blankets, the fire, and increasing the central heating thermostat. He advised that owing to the constant need to keep his home warm he has increased costs for oil central heating, an example was given 05 February 2020 to 16 April he paid £504.78.”
a.32. The report stated that Mr and Mrs Goode were home more often than before the accident, and accordingly their heating and lighting costs were increased. The heating in the house was on constantly from September to May maintaining a constant temperature of 21.5 during the day and 23/24 on an evening. Mr Goode also utilised a fire in the lounge when his poikilothermia caused him to feel particularly unwell or cold.
b.33. Mr Goode confirmed this problem in his statement.
c.34. An email chain was lodged between Mr Goode and the Senior Case Manager, Sharon King with the respondent. On 29 January 2021 Mrs Goode emailed Ms King seeking, amongst other things, the cost of heating oil. She said:
“Heating Oil - As Per OT Report
As Paul suffers with poikilothermia, ever since his accident, are Racing NSW willing to pay a percentage of our heating bill as the heating needs to be on constantly from September to May. Depending on the summer temperatures it could be on more.”
a.35. Ms King’s response was that the respondent would not pay this cost, and Mrs Goode enquired as to the reason for that decision on 2 February 2021. Ms King responded on 17 February 2021, saying:
“We refer to the following, It appears to be the inclement weather patterns that we all experience in each season, more so in the UK.
The following is an interesting fact, that you may already be aware of.
The United Kingdom straddles the higher mid-latitudes between 49° and 61° N on the western seaboard of Europe.
Since the UK is always in or close to the path of the polar front jet stream, frequent changes in pressure and unsettled weather are typical. Many types of weather can be experienced in a single day. In general the climate of the UK is cool and often cloudy and rainy.
High temperatures are infrequent.”
a.36. Mr Goode emailed his solicitors, describing the above email as “a joke” and complaining generally about his interchanges with Ms King.
Robotic lawnmower
a.37. Mr Goode purchased a robotic mower in May 2020, and an invoice from the supplier for a total of GBP2,190 was lodged. The applicant in his first schedule claimed a further amount of GBP2746, but no reference to that latter amount appeared in the evidence. The respondent referred to the same invoice, but claimed in its schedule that $1,798.88 was in dispute. It would appear the respondent did not read the entirety of the invoice, as the amount claimed was inclusive of installation costs (see ARD pp305/306).
b.38. In his supplementary statement of 13 February 2020, he said:
“5. I used to own a specially adapted lawnmower that I could sit on to mow the lawn. However, transferring myself from my wheelchair to this lawnmower has been quite difficult. Additionally, it has been especially hard to sit on the lawnmower due to my shoulder pain.
6. My wife does not have the time to mow the lawn as she is busy being my primary carer, working and caring for her parents… In Spring and Summer months, the lawn needs to be cut twice a week and is roughly GBP £90 each week to pay someone to come and mow the lawns.
7. We bought a robotic lawnmower, and it has made cutting the lawns so much easier. We no longer pay and organise someone to come in twice a week, and my wife does not have to do it.”
a.39. Mr Goode’s left shoulder injury was involved in the accident, and on 22 June 2010 Dr Ling noted that imaging had identified pathology in the shoulder. At that time Dr Ling noted that Mr Goode needed a power hoist for transfers due to the left shoulder condition. In her report of 19 October 2020 Ms Molner recorded that Mr Goode was having regular treatment for his left shoulder, although at that point he was managing transfers on/off his bed without concerns. Ms Molner in her report of 19 October 2020 said, when discussing Mr Goode’s hobbies:
“3.149 He states that he was previously able to cut the grass using a specially adapted, sit-on, lawn mower, however he is no longer able to access this as the transfers were getting too difficult. He reports that they have now purchased a robotic lawn mower to take over this task.”
a.40. Ms Molnar recommended “Continued support with household/gardening tasks as Mr Goode is unable to complete these”.
b.41. Dr David Bowers, made an undated report to the applicant’s solicitor, without further identifying himself. Dr Bowers was replying to a referral dated 19 August 2019. Dr Bowers stated in his report that Mr Goode enjoyed his garden, and anything that contributed to that enjoyment would contribute to Mr Goode’s psychological wellbeing.
Painting and decorating
a.42. The invoice was for GBP 6,525.17.
b.43. In his statement of 13 February 2020, Mr Goode said:
“When we purchased our home in 2012 … we had to undertake extensive renovations to make it wheelchair accessible. However, as we were on a limited budget we were unable to afford to have the doorways widened to 32 inches. The only doorway that is 32 inches is the door into the wet room. At the back of the property we have double patio doors fitted in the office onto the garden. All other doors are the standard size of approximately 28/29 inches, therefore, causing doors and door frames to become damaged by the wheelchair. With this said we are having to make repairs and decorate approximately twice a year. The invoices listed were from 2012 when the renovations were completed and also redecoration in 2018.”
a.44. The respondent agreed to meet an invoice issued by the builder, DJ Smith, for GBP1,093.44 in the consent orders entered on 22 April 2020, as can be seen above. However a further invoice remained in contention, dated 9 December 2012, in respect of which the claim was discontinued before Arbitrator Scarcella, as he then was.
b.45. There was an exchange of emails over this amount with Ms King, who alleged that it had been paid “around late June 2020”. That assertion would now appear to have been made in error, as the respondent’s schedule listed the sum of GBP6,525.17. The respondent has not suggested that in fact the account was paid around June 2020.
SUBMISSIONS
a.46. As noted above, conciliation was unsuccessful, and I made the orders for the filing of written submissions.
Mr Baran
a.47. Mr Baran kindly forwarded an outline of his submissions during the hearing.
b.48. He acknowledged that the respondent has accepted liability for the electric reclining armchair, the FES bike and the wheelchair weighing scale.
c.49. He confirmed the applicant’s list of the remaining claims.
d.50. Firstly, Mr Baran submitted that none of those claims were defined by s 59 as medical or hospital treatment and rehabilitation. In the alternative, Mr Baran submitted that it had not been established that they were reasonably necessary pursuant to the provisions of s 60.
e.51. The travel expenses could not be said to be connected to the receipt of medical, hospital, rehabilitation or treatment, Mr Baran argued. He also submitted that pursuant to s 60(2B) the respondent was not liable because no prior approval had been given, referring to s 60(2A).
f.52. As to the remainder of the claims, Mr Baran submitted that even if they could be defined within s 59, there was insufficient evidence to establish that they were reasonably necessary. He referred to the well known authority of Bartolo v Western Sydney Area Health Service.
a.53. Secondly, Mr Baran considered the question of whether an estoppel had arisen in relation to all claims in the respondent’s schedule.
b.54. Mr Baran noted that they ranged from 18 November 2009 to 9 March 2021.
c.55. He submitted that the expenses claims, or claims that were similar, had been claimed in the past. Dispute notices had been issued and the proceedings had either been discontinued or heard and determined in the Workers Compensation Commission.
d.56. Mr Baran submitted that the robotic lawnmower and heating oil were claimed following consent orders of 22 April 2020. He submitted that an Anshun estoppel operated for those remaining expenses that required determination.
e.57. Mr Baran referred to Geary v UPS Pty Ltd. He said that the appropriate test was whether or not, having regard to the exercise being an evaluative one, a litigant could reasonably have been expected to have brought forward these claims in earlier proceedings.
f.58. Mr Baran submitted that it was “undeniable” that if the present claims were valid, they would be matters that were so relevant in the prior proceedings that it was unreasonable not to have brought them forward at that time.
g.59. It was submitted that the ultimate test was reasonableness.
h.60. Mr Baran submitted that an analysis of the dispute notices revealed that similar claims and in some cases identical claims had been the subject of clear dispute notices in the past. He submitted that the scope of content of the orders made within the Workers Compensation Commission on 22 April 2020 involved matters which extended to include expenses pursuant to both s 59 and s 60.
61. Bearing in mind that the test for the application of the Anshun estoppel was reasonableness, Mr Baran submitted that it was unreasonable for the applicant not to have had all of the controversies referred to in the present schedule, dealt with at that time. The respondent had been accordingly “vexed”.
j.62. Mr Baran submitted that it followed even if the expenses fell within the terms of the legislation, and to the extent that they had been available on 22 April 2020, the applicant was estopped pursuant to the Anshun estoppel.
Ms Grotte
a.63. Ms Grotte submitted that the claims complied with the provisions of ss 59 and 60 of the 1987 Act. The treatment had been certified by persons defined in s 59, and the payment sought had been for payment of services that were defined in the subparagraphs defining the entitlements. It was accepted by Ms Grotte that the definitions therein were exhaustive.
a.64. I was referred to dicta by Burke CCJ in Rose v Health Commission (NSW) regarding the purpose of medical treatment, and to the well-known dicta by DP Roche in Diab v NRMA Ltd which set out the relevant principles in the application of s 60.
b.65. Ms Grotte then addressed each of the claims. As indicated, she combined the furniture removal and storage claims with the relocation costs in her submissions.
c.66. Ms Grotte submitted that the relocation costs had been demonstrated as being beneficial and therapeutic, referring to the circumstances under which Mr Goode returned to the UK. Mr Goode did not have family in Australia, she submitted, and he did not have a support network or family, which he needed for both physical reasons and for his mental well-being.
d.67. There were multiple references within the evidence that demonstrated that Mr Goode was functioning well in the company of his family and friends since he had returned to the UK, which attested to the therapeutic benefits to Mr Goode’s overall well-being, Ms Grotte submitted.
e.68. Accordingly, the relocation costs were incurred to enable that relocation to occur. The 2011 report of Eileen Van Dijk showed that Mr Goode was struggling then, and that his mother came out to assist him, as did the Multi Disciplinary report. The relocation was also supported by Dr Rogers, Mr Goode’s GP of many years in 2021. Further, the report of Angela Molnar also demonstrated that the move had been patently therapeutic.
f.69. Ms Grotte submitted that the cost of the business class seats to the UK had been shown to be reasonably necessary. The use of business class for flying had been endorsed by Dr Ling in 2010 and in the circumstances related only to the relocation, and was not an “open ambit claim”.
g.70. All of the relocation expenses were also medical and related treatment as defined in s 59, Ms Grotte contended. She argued that they were therapeutic, they were concerned with the care (other than nursing) of the worker in his home, and they provided domestic assistance.
h.71. Ms Grotte argued that these facts also applied to the provisions of s 60. They made it self-evident, I understood her to submit, that the relocation in 2012 was reasonably necessary. The business class tickets, being a part of the relocation, were a reasonably necessary expense because of the necessary added space that business class would provide, in conformance with the advice of Dr Ling in 2010 and that of the authors of the occupational Therapy report of in 2014. The other relocation claims I understood Ms Grotte to submit, would naturally follow such a significant move.
a.72. With regard to the applicant’s claim for heating fuel, Ms Grotte submitted in both her written submissions that the respondent had misunderstood the basis of this claim. The evidence showed that Mr Goode suffered from poikilothermia and needed a steady heat over the Autumn and Winter months in North Yorkshire.
b.73. Ms Grotte submitted that the purchase of a robotic lawnmower was reasonably necessary. She referred to the applicant’s transfer difficulties to the ride-on mower, and shoulder problems when riding it.
c.74. The claim for painting and decoration had been caused, Ms Grotte said, by the continual wheelchair damage to those doorways which Mr Goode could not afford to widen on his restricted budget. They were part of an accepted liability and in any case were needed to alleviate Mr Goode’s situation.
Mr Baran in reply
a.75. Mr Baran submitted that the applicant’s approach to s 59 was not supported by express reference to the evidence.
b.76. Mr Baran submitted that Ms Grotte’s consideration of the relevant authorities regarding s 60 was premature, as entitlement under s 59 had not been established. This, he said, was a critical lacuna, as it sought to expand the definitions contained in s 59, when they were exhaustive and inclusive.
c.77. Ms Grotte gave a “rolled up and general submission” and then addressed the question of reasonably necessary, which she could not do until she identified by express reference to the evidence how the provisions of s 59 had been complied with. Ms Grotte had wrongly assumed that this issue was not opposed, Mr Baran asserted.
d.78. Mr Baran listed case examples of the application of s 59 where:
e. (a) a golf cart was not curative apparatus (Darcy v Bradop);
f. (b) lost wages of a caring spouse were not medical or related treatment (David Ross Ashbury v Blackwoods Pty Ltd, and
g. (c) everyday items used by members of the public such as mattresses and beds were not medical or related treatment (Honarvar v Professional Painting AU Pty Ltd).
a.79. Mr Baran referred to Cooper v State Rail Authority (NSW) in submitting that the applicant had not shown that the items claimed were anything more than those needed in any event, or a common everyday item used by the public.
b.80. In the alternative, it was important that even if the claims were medical and related treatment that they be shown to be reasonably necessary. Common sense was called for in deciding that issue, Mr Baran submitted, citing Cooper.
c.81. As to the claim for furniture removal and storage costs, Mr Baran submitted that the applicant could not comply with the provisions of s 60(1)(a)-(d), in that the reason for the travel was not connected with the four defined treatments therein.
d.82. Mr Baran submitted that the applicant had not demonstrated that the purpose of the travel was to receive treatment, in breach of the provisions of s 60(2), and no guideline was identified as was required by s 60(2C). Further, Mr Baran submitted that no prior approval had been given by the insurer for the travel, and neither had the other provisions of s 60(2A) been satisfied.
e.83. With regard to the claim for heating oil, Mr Baran submitted that Mr Goode’s case was indistinguishable from a claim for an ordinary household expense. This was directly contrary to the principles that had developed whereby ordinary everyday expenses that would have been incurred in any event were not within the ambit of s 60. It was inconceivable that the entire heating liability concerned just the applicant as opposed to his spouse or any other member of his household.
f.84. So far as the claim for a robotic lawnmower was concerned, Mr Baran noted that the respondent had already “gone to great pains” to keep and maintain Mr Goode’s garden. The additional expense of a robotic lawnmower had not been demonstrated as being reasonably necessary. There was no good reason advanced as to why this additional expense was needed, Mr Baran said.
g.85. Mr Baran said that the painting and decorating costs were not involved with the modifications to his dwelling on account of the applicant’s mobility difficulties. This too was an ordinary living expense that every property owning member of the public would incur at some point and had no connection with medical or related treatment.
h.86. Mr Baran then made further submissions regarding his application to rely on an alleged Anshun estoppel. He submitted that leave should be given, as the issue raised “an important point of law and policy which affects the integrity of these proceedings”.
a.87. Mr Baran repeated his reliance on the recent Presidential decision of Geary. He referred to the discretionary matters listed in Mateus v Zodune Pty Ltd, conceding however that his application had been made late. However. Mr Baran submitted that the point was concerned with the requirement by the Commission to act according to equity, good conscience and the substantial merits of the case – a reference I assume to s 43 of the Personal Injury Commission Act 2020 (the 2020 Act).
b.88. Mr Baran noted that the respondent was not relying on new evidence to sustain its application, but that its argument was based on the existing documentation. There could be little doubt that the current proceedings involved controversies that could and should have been brought earlier, he said.
c.89. Mr Baran submitted that the bulk of the expenses sought ranged from 2009 to 2012. Mr Baran referred to the distinction made by the President in Miller No.5, referred to in Geary, that the inability by the Commission to make a costs order placed a respondent with a burden of having to defend the same claim on multiple occasions.
d.90. Mr Baran submitted that the applicant had not responded to his outline of submissions which raised the issue. There was no adequate explanation as to why these claims had not been dealt with earlier, Mr Baran said. Mr Baran noted that only two of the expenses post dated the last hearing, but their content referred to issues that pre-dated it, I understood Mr Baran to argue, and the Anshun estoppel principles would apply to such claims. Mr Baran noted that “the proceedings raise controversies that have been either the express subject of prior proceedings or were well and truly known to the Applicant and one assumes his legal advisors in prior proceeding agitated in the … Commission”.
Ms Grotte in reply
a.91. Ms Grotte lodged further submissions, and I grant leave for her to do so nunc pro tunc. Ms Grotte re-iterated that the respondent had misapprehended the claim for painting and decorating in that it was not contended that it was an ordinary living expense, but as a result of the necessity to widen doors to make them wheelchair accessible, as had not been done when the house was originally altered in 2012.
DISCUSSION
a.92. Section 59 provides relevantly:
“59 DEFINITIONS
In this Division-
"medical or related treatment" includes:
(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 spectacles,
(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,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.”
a.93. Section 60 of the 1987 Act provides relevantly:
“60 COMPENSATION FOR COST OF MEDICAL OR HOSPITAL TREATMENT AND REHABILITATION ETC
(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).
Note : Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are-
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b)if the worker is not reasonably able to travel unescorted--the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(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.
(2B) The worker's employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following-
(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e) specifying the qualifications or experience that a person requires to be "appropriately qualified" for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
The Anshun estoppel and s 289A
a.94. I read with interest Mr Baran’s submissions regarding the Ansun estoppel. However they cannot be considered, as I decline to grant leave pursuant to s 289A of the 1998 Act, which provides:
“(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if-
(a)it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
a.95. This issue was not raised before the hearing, and accordingly I have to be satisfied that it is in the interests of justice to accede to Mr Baran’s application. Geary was relied on by Mr Baran as the basis of his application. At [123], President Judge Phillips said:
“123. … As I have previously found in relation to claims under the workers compensation Acts, it is possible for various claims under that legislation to be pursued in different proceedings without engaging with the Anshun principle. However the Anshun principle does exist for deployment in workers compensation claims in appropriate cases. By appropriate cases I mean cases where after a consideration of the facts and the undertaking of the evaluative exercise referred to by McColl JA in Habib, the Anshun principles might then be enlivened.”
a.96. The application of the estoppel depends on whether the facts and circumstances constitute an appropriate case. The applicant has not had an opportunity to even consider, let alone obtain such further facts it deems necessary to enable an evaluative exercise to be undertaken. The applicant is prejudiced, and the application is dismissed.
b.97. (In passing, I note that Mr Baran referred to p 24 of the ARD as an example of a prior order having been made. Unfortunately, it related to an entirely different case, which I assume was inadvertently included. There has in fact been only one application in relation to these claims, or claims similar, that being on 22 April 2020.)
Section 59 medical and related treatment
a.98. It is firstly necessary to consider the respondent’s submissions regarding the alleged failure by the applicant to demonstrate that the expenses sought complied with the relevant definitions of medical and related treatment provided by s 59.
Section 59 (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
a.99. No submissions were directed to this head in particular, and with a catastrophic injury of this nature it is axiomatic that Mr Goode would be under treatment by medical practitioners.
Section 59 (b) therapeutic treatment given by direction of a medical practitioner
a.100. Ms Grotte submitted that the relocation expenses, which included the six categories of expenses she defined as indicated above, should be regarded as therapeutic treatment. Mr Baran did not expressly refer to this head, preferring to deal with the relocation expenses claim globally pursuant to s 60.
b.101. Section 59(b) was considered by DP Michael Snell in State of New South Wales (Central Coast Local Health District) v Bunce, which concerned the question of whether an assistance dog constituted therapeutic treatment. At [60] The learned DP referred to Rose v Health Commission (NSW) citing Burke CCJ:
“60. In Rose Burke CCJ, dealing with the term ‘treatment’, said:
“... treatment must be reasonable if it is to fall within the purview of the subsection. But that is not solely because of the words ‘reasonably necessary’ but is rather inherent in the concept of ‘treatment’ itself. Treatment is necessarily purposive. Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all.”
a.102. The employer had argued that the provision of an assistance dog could not qualify as therapeutic “treatment” pursuant to the subparagraph. However, DP Snell said at [68]:
“The word ‘treatment’ is not, in the opening words of s 59, restricted to the provision of services. I cannot see any valid reason why the word should be given a narrower meaning in para (b) than that which it has in the opening words of s 59. I accept that the phrase ‘medical or related treatment’ in s 59 should not be restricted to the provision of a service. There is no reason why the word, where it forms part of the phrase ‘therapeutic treatment’, should be constrained in the way for which the appellant argues. Treatment can extend to the provision of things in an appropriate case. This is consistent with the structure of s 59 and with the decision in Rose…”
a.103. Deputy President Snell also confirmed at [73] that any ambiguity in the interpretation of s 59 should be given a construction that is favourable to the worker, s 59 being a beneficial provision.
b.104. I apprehend that it was on this interpretation of s 59(b) that Ms Grotte based her submissions that the entirety of the relocation costs should be met by the respondent. Applying the dicta of DP Snell, the therapeutic effect of the relocation constitutes “medical and related treatment” as provided by the opening words of s 59. This treatment involved the many different aspects of the relocation from Sydney to North Yorkshire, all of which have been supported by documentary proof. Accordingly, the enquiry as to whether the treatment was reasonably necessary pursuant to s 60 can be made. I will consider that aspect below.
Section 59 (e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment
a.105. As indicated, Mr Baran referred to a number of authorities, including Honarvar, in support of his submissions that common everyday items such as beds and mattresses were not medical and related treatment.
b.106. That case has been overturned by DP Snell in Honarvar v Professional Painting AU Pty Ltd. Under the heading “some authorities”, the learned DP listed examples where:
“(a) (At [140]) the argument that a hydrotherapy pool was not a curative apparatus was described as “pettifogging” by Hutley JA in the Court of Appeal. DP Snell quoted His Honour’s comments:
“…. the process of dealing with an incapacitated person may involve a continual war with disease, atrophy of the muscles by lack of use, an even psychological decay by reason of lack of something to do. Any apparatus which helps in this way is a curative apparatus.”
(b) (At [142]) a taxi was found by Neilson CCJ to be a curative apparatus; a computer similarly by Truss CCJ; and farm machinery by Armitage CCJ.
(c) At [143]) a king size bed and a Toyota Tarago motor vehicle were held by Byron DP to be curative apparatus. DP Byron was cited by DP Snell:
“The authorities indicate that in order for an item to fall within the definition of ‘medical or related treatment’ in section 59 of the 1987 Act, there must be a ‘curative’ or therapeutic element offered by the item to an injured worker, in his or her particular circumstances, that deals with and assists in some therapeutic way, the management of his or her physical or psychological condition.”
a.107. Mr Baran did not indicate to which claim his submissions were directed, and Ms Grotte did not rely on this head of treatment. However, the cost of the medical supplies sent from Australia to the UK clearly comply with this definition. It also probably covers the cost of the robotic lawnmower, based on the farm machinery example given by DP Snell.
Section 59 (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
a.108. Ms Grotte submitted that the move to the UK also enlivened s 59(f). Mr Baran confined his submissions to s 60 regarding what he described as relocation expenses.
b.109. In Western Suburbs Leagues Club Illawarra Ltd v Everill the Court of Appeal considered the application of s 59(f) in a case where the applicant had suffered a back injury and was seeking the costs of housekeeping and domestic assistance. Handley JA, with whom Meagher and Priestley JJA agreed, traced from [13 – 21], the history of the provision and the subsequent conflicting cases decided in the Compensation Court. He held at [23]:
“…..Barrell Insurances showed that the cost of domestic assistance for an injured worker could not be recovered under the Act as it then stood. Parliament then made additional provision for injured workers, but stopped short of creating a right to domestic assistance or household help as such...
24 In these circumstances paragraph (f) should not be interpreted as conferring such a right. The worker who is unable to look after herself either at all, or without suffering unacceptable pain, is entitled to the cost of personal care and that much is clear….”
a.110. Ms Grotte submitted that because family members provided such care, the relocation to the UK was an integral part of the provision of such care, and thus could qualify under this heading, along with the other headings considered above.
b.111. I bear in mind that Mr Goode was 31 years old at the time of his accident. He was from the UK, and at the time of his fall appears to have been a bachelor. Ms Van Dijk reported that Mr Goode married Catherine in November 2010 and I infer that there was no family in Australia that could look after him and give him the personal care he needed. That could only reasonably have come from his UK family, and was demonstrated by the fact that both Mr Goode’s mother and sister came out to care for him. I accept Mr Goode’s evidence that his friends stopped contacting him so frequently after his accident.
c.112. It follows therefore that Mr Goode, who is unable to look after himself, is entitled to the cost of personal care (other than nursing care) pursuant to s 59(f).
Section 59 (f1) domestic assistance services
a.113. Section 59 (f1) was the basis for the claim for the robotic lawnmower.
b.114. Act No. 94 of 2001 made changes to ss 59 and 60 and introduced a new s 60AA. Section 59 was amended to include “(f1) domestic assistance services” and domestic assistance was excluded from s 60. Section 60AA was enacted to deal with domestic assistance.
c.115. In Clampett v Workcover Authority of NSW the Court of Appeal (Grove J, Meagher and Santow JJA agreeing) held at [36] that the expression “the worker’s home” was to be construed as including the yard and garden area surrounding the particular house.
d.116. I was not addressed as to the provisions of s 60AA, but Mr Baran conceded that the respondent had already been keeping and maintaining Mr Goode’s garden, which I assume was accepted pursuant to s 60AA (b):
“(b) the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury)”
a.117. Accordingly I am satisfied that the claim for the robotic lawnmower was within the definition provided by this head. As indicated, it was also probably within the definition regarding curative apparatus.
Section 59 (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
a.118. This provision was relied on as authorising the painting and decorating expenses claimed.
b.119. No authority was cited that suggested it was not applicable, Mr Baran relying on a factual distinction that it was not related to the applicant’s injury. The claim is accordingly defined by this head.
Section 59 reasonably necessary
a.120. Both parties referred to the well-known dicta of DP Roche, who analysed the principles applicable to determining whether a treatment was reasonably necessary in Diab v NRMA Ltd. The learned DP said from [88]:
“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.
0. 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.
0. 90. While the above matters are “useful heads for consideration”, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression “no reasonable prospect” should be understood, “[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content.”
a.121. I now turn to the various claims.
Relocation costs
a.122. As indicated, this claim was summarised by the applicant to include the cost of furniture removal and storage. Thus the relocation costs consist of the furniture removal and storage costs in Australia when Mr Goode relocated back to the UK, and the other six listed subheadings of:
a. (a) removal costs to the UK;
b. (b) the cost of relocating Mr Goode’s pet to the UK;
c. (c) two business class flights to the UK;
d. (d) the cost of posting medical supplies to the UK from Australia;
e. (e) excess baggage fee, and
f. (f) customs tax.
a.123. I have already referred to Mr Goode’s situation following his accident. He was 31 years old and without support in Australia, save for Catherine, whom he married in November 2010. His mother, grandmother and his sister had to fly over from the United Kingdom to care for him for some months, and the decision was reached to return to the UK. As this occurred in 2012 an evaluation of whether the return has been therapeutic can be made. In summary:
"• Mr Goode suffered a catastrophic accident which rendered him paraplegic
• • Mr Goode did not have a support network to care for him in Australia, and his friends stopped contacting him regularly following the accident.
• • The 2014 Occupational Therapy report of Ms Wilkinson and Mrs Lambert confirmed that Mr Goode’s mother, grandmother and sister all flew over from the UK to care for him, as Catherine was working and unable to give all the care required
• • Ms Molnar in 2020 confirmed that since his return from Sydney in September 2012 Mr Goode had purchased a house where his family lived nearby, and that he was visited regularly. Mr Goode had a good circle of friends in the village
• • Dr Rogers confirmed in 2021 that the move back to the UK had been reasonable
• • The costs incurred have been established by documentary evidence.
• • The necessity for Mr and Mrs Goode to travel business class was confirmed by Dr Ling and the authors of the Occupational Therapy report.”
124. The evidence confirms that the particular treatment was appropriate, and the respondent did not suggest that any alternative treatment was available. The cost of the individual items has not been contested, and the actual effectiveness of the treatment has been established. The medical experts in the case did not suggest that the treatment was inappropriate.
125. To combine Burke CCJ’s dicta in Rose, and DP Snell’s dicta in Bunce, the treatment, in the medical or therapeutic context, relates to the management of the injury by the provision medical or related treatment designed to alleviate the condition. It is the provision of such treatment for the purpose of limiting the deleterious effects of a condition that makes it reasonably necessary.
126. Once it is accepted that the relocation was a reasonably necessary treatment, it follows that the associated costs should also be allowed. It would not be reasonable to exclude the transportation of Mr Goode’s dog, nor to exclude the storage and shipment of his goods and chattels from the one country to the other.
127. The respondent however submitted that the travel costs, which would cover all the relocation claims, were not claimable, as the applicant could not comply with the provisions of s 60(2) and (2A). Section 60(2) I am satisfied has been complied with by virtue of my finding that the relocation was reasonably necessary – the respondent is liable to pay “the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment”.
128. As to ss 60(2A), beyond simply mentioning the subsection, Mr Baran did not develop any argument about it, nor refer to any authority. I have not been able to find any case law on this point. However, in Hesami v Hong Australia Corporation Pty Ltd DP Roche considered an argument regarding the provisions of s 60AA, which I have briefly referred to above.
129. Section 60AA had a number of requirements that needed to be satisfied in order for domestic assistance to be provided. Amongst them was a requirement that a “care plan” had been established by the insurer in accordance with the relevant guidelines. The learned DP relied on the system objectives in the 1998 Act (now in s 42 of the 2020 Act) to support his construction of the subsection that recovery could still be made for domestic assistance given even if the care plan had not then been established. He said at [48]:
“There is no logical reason why compensation can only be recovered for assistance provided after the preparation of the care plan. As this case graphically illustrates, the need for and provision of domestic assistance will always occur before the insurer establishes the care plan. The anomaly of the employer’s position is that liability under s 60AA can be avoided altogether, or substantially reduced, by the insurer simply not obtaining a care plan, or, as has happened in this case, by not promptly obtaining a care plan. Thus, in circumstances where the insurer delays (whether reasonably or unreasonably) establishing a care plan, it could obtain an unjustified windfall and the person who provides the assistance suffer an unreasonable penalty. There is no reason why that should be allowed and several why it should not.”
130. Amongst those reasons was the principle that the “legislation” is “beneficial legislation” and that entitlements under such legislation should not depend on “distinctions which are too nice”. (At [44] – authority omitted.)
131. Accordingly the same reasoning applies to the requirement that the travel be given prior approval pursuant to s 60(2A). The corollary to DP Roche’s reasoning is of course that if an insurer failed to give a care plan, or in this case give prior approval for the travel, the Commission has jurisdiction to make the award in any event.
132. There will accordingly be an order in favour of the applicant in relation to the relocation costs.
Heating fuel
133. The claim is on the basis that this fuel is necessary because of Mr Goode’s poikilothermia, and was limited, as explained by Mrs Goode to Ms King in the email reproduced above, to a percentage of the heating bill, as the heating needed to be on constantly over the months between September and May (which I presume is because that is the coldest time of year in North Yorkshire, being the autumn and winter seasons).
134. Mrs Goode also said that sometimes during the spring and summer months heating is also required to manage Mr Goode’s poikilothermia. Ms King advised in her email that the weather in the UK is affected by the polar front jet stream, which make temperature changes and unsettled weather typical of the climate.
135. The provision of heating fuel to assist in the management of Mr Goode’s poikilothermia is supported in the Occupational Therapy report, and was not specifically addressed in the respondent’s case. I reject the respondent’s contention that the need for fuel oil did not concern the applicant’s condition and was simply an “ordinary everyday” expense.
136. The necessity to maintain Mr Goode’s body temperature at a stable level makes the supply of fuel oil appropriate for the autumn and winter months. An allowance should be made for the probability that heating will not be necessary to address the poikilothermia on a constant basis in the summer months.
137. No submissions were made that there was any alternative treatment, neither was it suggested that the cost was excessive. The effectiveness of the treatment has been established by the evidence of the Occupational Therapy report, and it has not been suggested that there is any medical expertise that demonstrates a different way of treating this condition.
138. The respondent should pay for the heating costs between September and May every year, and a portion which I estimate as 15% for the spring and summer months. Accordingly there will be an award for the respondent to pay 65% of the applicant’s heating fuel per year.
Robotic lawnmower
139. A claim for lawn care was originally accepted on a limited basis on 29 May 2013. However liability was denied for the present claim in the s 78 notice of 29 April 2020 because Mr Goode’s needs in this area had already been met by the supply of a ride on mower – at his request. The subsequent onset of difficulties in the transfer from his wheelchair to the ride on mower, and the discomfort he experienced to his left shoulder in riding the mower was the basis for this claim.
140. I have referred to the history of the injury to the left shoulder above. There was no challenge to that evidence. Dr Ling and Ms Molnar reported ongoing difficulties over the years, and I accept Mr Goode’s evidence in this regard. The respondent conceded that it had accepted liability for ensuring the condition of Mr Goode’s lawns and gardens were maintained and kept. I reject its submission that this expense is unnecessary. Contrary to the submission that there was no good reason for the claim, the applicant has demonstrated that his physical condition was a very good reason to cease using the ride on mower.
141. The provision of a robotic lawnmower was appropriate as it alleviated the effects inherent in riding the mower of Mr Goode’s injury, in that the transfer difficulties and the condition of his shoulders have been removed. The alternative treatment – the use of a ride on mower - I accept is no longer effective, and again the actual cost has not been challenged. It is effective for the same reasons as it is appropriate, and no medical evidence has suggested that it is neither appropriate or effective.
142. I accept further that a well maintained lawn will, along with his gardening activities, contribute to Mr Goode’s psychological wellbeing, as advised by Dr Rogers.
Painting and decorating
143. The respondent’s submission that this claim was “an ordinary expense that every member of the public will incur” is rejected. A perusal of the email chain referred to above suffices to demonstrate that the respondent had accepted liability for the costs of modifying Mr Goode’s dwelling.
144. Ms King did not deny the invoice was payable, but simply alleged that it had been paid “around late June 2020”. The respondent has accepted liability for the modifications at an earlier point in time that was referred to by Mr Goode, it would seem (although it is not entirely clear) but in any event Mr Baran conceded that the respondent would be liable if modifications were needed because Mr Goode was wheelchair bound. That is precisely the reason advance for this claim. Because the modifications were not completed for every doorway in 2012 when the house was first modified, Mr Goode said that some doorways were not wide enough, and were constantly damaged by the wheelchair. The invoices concerned both the initial renovations in 2012, and redecoration in 2018.
145. The respondent will accordingly pay the outstanding invoice for this work.
DECISION
146. For the above reasons, there will be an award pursuant to s 60 of the 1987 Act in favour of the applicant in the following amounts:
a. (a) $2,650 from Walkers moving and storage dated 18 November 2009;
b. (b) $15,320 from Grace Removals Group dated 14 March 2012;
c. (c) $12,996 for two business class seats from Emirates Flight Centre dated 18 May 2012;
d. (d) $2,100 for excess baggage from Emirates Flight Centre;
e. (e) GBP 58.9 import tax from UK Customs dated 21 June 2012;
f. (f) $3,360 from Jetpets for the transportation of Mr Goode’s dog, dated 1 May 2012;
g. (g) $567 for medical supplies posted to the UK dated 8 June 2012;
h. (h) the respondent will pay the cost of 65% of the applicant’s fuel oil per annum from 2012 to date and continuing;
i. (i) GBP 2,190 from Sam Turner & Sons dated 29 June 2020 for the purchase of the Husqvarna Automower, and
j. (j) GBP 6,525.17 to DJ Smith, painter and decorator.
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