Hallmann v National Mutual Life Association of Australasia Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hallmann v National Mutual Life Association of Australasia Limited [2023] NSWPIC 455
APPLICANT:	Geoffrey Peter Hallmann
RESPONDENT:	National Mutual Life Association of Australasia
ARBITRATOR:	Grahame Edwards
DATE OF DECISION: CATCHWORDS:	28 August 2019 Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS) with persisting Fibromyalgia; self-represented litigant; claim for medical and related treatment expenses in dispute; Bielecki, Bartolo and Diab applied in relation to s 60 of the 1987 Act; significant claim for s 60 medical expenses including inter alia cardiac investigations, pathology tests, invitro fertilization treatment, vitamin supplements, weight loss programme, optometrist services, SPECT scan, toll fees, travel costs, gastroenterological investigations and blood tests reasonably necessary; Held - respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to section 60 of the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. No order as to the applicant’s claim for medical and related treatment expenses particularised in the notice dated 11 April 2011 issued by the respondent pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 2. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to section 60(1) of the Workers Compensation Act 1987 (the 1987 Act) in respect of cardiac investigations and pathology tests as a result of injury particularised in the notices dated 29 September 2011 and 13 October 2011 issued by the respondent pursuant to section 74 of the 1998 Act. 3. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to section 60(1) and (5) of the 1987 Act in respect of proposed cardiac investigations, including consultations with the nominated treating doctor and cardiologist, as recommended by the nominated treating doctor and cardiologist as a result of injury. 4. Applicant’s claim for domestic assistance pursuant to section 60AA of the 1987 Act as a result of injury is dismissed pursuant to section 354(7A)(b) of the 1998 Act. 5. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to section 60(1) of the 1987 Act in respect of Invitro Fertilization treatment of the applicant and his partner, Jacqueline Watson, as a result of injury. 6. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to section 60 (1) and (5) of the 1987 Act in respect of proposed Invitro Fertilization treatment of the applicant and his partner, Jacqueline Watson, as a result of injury. 7. No order in respect of the applicant’s claim for medical and related treatment expenses as a result of injury particularised in the notice dated 12 March 2014 issued by the respondent pursuant to section 74 of the 1998 Act. 8. No order in respect of the applicant’s claim for medical and related treatment expenses as a result of injury particularised in the notice dated 5 August 2014 issued by the respondent pursuant to section 74 of the 1998 Act. 9. Respondent to pay the applicant’s medical and related expenses in the amount of $511 pursuant to section 60(1) of the 1987 Act in respect of vitamin supplements as a result of injury. 10. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses as a result of injury pursuant to section 60(1) and (5) of the 1987 Act in respect of future vitamin supplement programme recommended by the nominated treating doctor. 11. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses as a result of injury pursuant to section 60(1) of the 1987 Act in the amount of $1,719.83 in respect of weight loss and diet programme recommended by the nominated treating doctor. 12. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses as a result of injury pursuant to section 60(1) of the 1987 Act in the amount of $6,974.75 in respect of sleep apnoea and sleep dysfunction recommended by the nominated treating doctor. 13. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses as a result of injury pursuant to section 60(1) of the 1987 Act in the amount of $1,998.44, including any additional cost for sunglasses, in respect of behavioural optometrist services provided to the applicant. 14. Award for the respondent pursuant to section 60 of the 1987 Act in respect of the applicant’s claim for kidney pathology tests as a result of injury. 15. Award for the respondent pursuant to section 60 of the 1987 Act in respect of the applicant’s claim for past and proposed sterile pyuria tests as a result of injury. 16. Award for the respondent pursuant to section 60 of the 1987 Act in respect of the applicant’s claim for heel arches as a result of injury. 17. Respondent to pay the applicant’s reasonably necessary and medical related treatment expenses as a result of injury pursuant to section 60(2)(a) of the 1987 Act in the amount of $47.31 for toll fees. 18. No order as to the applicant’s claim for medical and related treatment expenses made upon the respondent in 2010. 19. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses as a result of injury pursuant to section 60(1) of the 1987 Act in respect of SPECT scans performed in 2012 and 2013. 20. No order in respect of the applicant’s claim for the cost of a disability permit issued by the relevant statutory Authority in the amount of $36. 21. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses as a result of injury in respect of travel, including airfares, from Sydney to Melbourne to consult the applicant’s nominated treating doctor on 12 November 2012 pursuant to section 60(2) of the 1987 Act. 22. No order as to the applicant’s claim for airline and travel expenses except for Order No. 21. 23. No order as to the applicant’s claim for taxi expenses. 24. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses as a result of injury pursuant to section 60(1) of the 1987 Act in respect of gastroenterological investigations. 25. Respondent to pay the applicant’s reasonably necessary medical and related treatment expenses as a result of injury pursuant to section 60(1) of the 1987 Act in respect of blood tests performed during the period 12 April to June 2014 recommended by the nominated treating doctor. 26. No order in respect of the applicant’s claim that the respondent to pay any Notice of Charge issued by the Health Insurance Commission.

STATEMENT OF REASONS

BACKGROUND

Mr Geoffrey Peter Hallmann (the applicant) commenced the current proceedings in the Workers Compensation Commission (the Commission) against National Mutual Life Association of Australasia Limited (the respondent) upon filing an Application to Resolve a Dispute (the Application) on 18 July 2014.
The respondent filed its Reply to the Application (the Reply) on 8 August 2014.
On 23 December 2014, the respondent filed an Amended Reply (covering sheet only).
The respondent accepts Mr Hallmann suffers with (Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (ME/CFS) with persisting Fibromyalgia (FM)) as a result of injury arising out of or in the course of employment within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act) with the injury deemed to have happened on 29 November 1996.
While Mr Hallmann is a self-represented litigant, he holds the following degrees:
(a)    Bachelor of Business (1989);
(b)    Bachelor of Laws with first class honours (2000), and
(c)    Diploma of Legal Practice.

Mr Hallmann practised as a solicitor: about three months with a firm of solicitors at Lismore in or about 2002/2003 and with another firm at Lismore in 2004/2005 for several months, working 15 hours per week.
In February 2007, Mr Hallmann obtained work as a tutor in the Aboriginal Tutorial Assistance scheme, working with a single Indigenous Deakin University student located in Lismore. This role came to an end in August 2009. He worked no more than eight hours per week in this role.
In 2008, Mr Hallmann obtained a similar role as a tutor with Southern Cross University, working part time with flexible hours, peaking at 24 hours per week in 2010, to accommodate his health conditions as a result of his injury. Mr Hallmann remains in the role of a tutor with Southern Cross University.
The background of this matter is set out in the Amended Certificate of Determination issued by the Commission dated 13 December 2016 and the Certificate of Determination dated 23 July 2019.
I propose to refer to relevant background matters only in this Statement of Reasons, which should be read with the earlier Statement of Reasons issued by the Commission in these proceedings.
Mr Hallmann’s claim for weekly payments of compensation was finalised upon the issuing of a Certificate of Determination – Consent Orders dated 28 November 2014; the claim for interest was finalised upon the issuing of the Amended Certificate of Determination dated 13 December 2016, and the liability dispute in respect of injury to body parts (pelvis, speech and smell) was finalised upon the issuing of the Certificate of Determination dated 23 July 2019.
This Statement of Reasons deals with the disputed and previously unnotified medical and related treatment expenses claimed by Mr Hallmann pursuant to s 60 of the 1987 Act.
The insurance scheme agent (CGU Workers Compensation (NSW) Limited (CGU)) for the respondent issued a number of notices pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as follows:
(a)    liability for injury declined – dated 20 January 2005[1];
[1] Reply – p 1506
(b)    liability for injury declined – dated 30 October 2006[2];
[2] supra – p 1508
(c) claim for reimbursement of medical expenses (reimbursement of expenses – United States) – s 60 – dated 11 April 2011[3];
[3] supra – p 1510 - 1512
(d)    claims for lump sum compensation – dated 23 August 2011[4];
[4] supra – pp 1513 - 1515
(e)    claim for additional weekly payments for dependent spouse – dated
1 September 2011[5];
[5] supra – pp 1516 – 1519
(f)    claim for proposed investigations for cardiac symptoms and blood tests/pathology for cholesterol, HOL, LAL, TG, glucose, Homocysteine – dated 29 September 2011[6];
[6] Application – pp 509 - 511
(g)    claim for proposed investigations for cardiac treatment, blood tests for cholesterol, HOL, LAL, TG, glucose, Homocysteine – dated 13 October 2011[7];
[7] Reply – pp 1520 – 1522
(h)    claim for domestic assistance – s 60AA – dated 12 July 2012[8];
(i) claim for Invitro Fertilization – s 60 – dated 14 January 2013[9];
(j)    permanent impairment claim – dated 30 January 2013[10];
(k) claim for car travel, car hire, car parking, costs, flights, food, accommodation to attend upon nominated treating doctors – s 60 – dated 12 March 2014[11], and
(l) claim for physiotherapy and chiropractic treatment – s 60 – dated 5 August 2014[12] .

[8] Application – pp 518-522

[9] Application – pp 523 – 524

[10] supra – pp – 527 – 529

[11] Reply – pp 1610 – 1621

[12] supra – pp 1624 – 1631

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) claims for medical and related treatment expenses as particularised in the notices issued pursuant to s 74 of the 1998 Act; Pt 5.3 of the Amended Application and in the schedule of expenses attached to the Application at page 2036.

Matters previously notified as disputed

The matters previously notified are set out in the s 74 notices referred to in paragraph 9(c), (f), (g), (h), (i), (k) and (l).

Matters not previously notified

Part 5.3 of the Application particularises claims for medical and related treatment expenses, many of which are outside the ambit of the disputed issues raised in the s 74 notices.
Mr Hallmann attached a schedule of a broad range of medical and related treatment expenses claimed, together with copies of receipts, to the Application[13], many of which are outside the disputed issues raised in the s 74 notices.
[13] Application – pp 2036 - 2080
The respondent filed an Application to Admit Late Documents attaching Form 2A (Amended Reply) raising matters in paragraphs 2 and 3 at Pt 3 of the Amended Reply in respect of the claims made by Mr Hallmann pursuant to s 60 of the 1987 Act.
The respondent in its written submissions dated 10 April 2019 at paragraph 3b., c. and d. submitted that leave had been granted to it pursuant to s 289A(4) of the 1998 Act at the Arbitration hearing on 28 January 2015 to dispute medical and related treatment expenses as claimed by Mr Hallmann at Pt 5.3 of the Application and particularised in his schedule of expenses.
While leave was granted to the respondent at the Arbitration hearing to dispute liability in regard to the pelvis, speech and smell, no application was made for leave to be granted to dispute medical and related treatment expenses claimed by Mr Hallmann outside the ambit of the s 74 notices.
There was delay for various reasons, which are not relevant to this determination, with the issuing of a direction to the parties on 2 August 2018 to provide written submissions on the notified disputed claims for medical and related treatment expenses.
On 18 January 2019, Mr Hallmann filed his submissions (635 pages attaching six annexures).
On 24 January 2019, Mr Hallmann filed further submissions (956 pages attaching six annexures).
On 10 April 2019, the respondent filed its submissions (8 pages) in reply.
On 11 April 2019, Mr Hallman filed further submissions (30 pages attaching two annexures).
In my view, the respondent particularised its application pursuant to s 289A(4) at paragraph 2 of Pt 3 of its Amended Reply to dispute the unnotified issue relating to medical expenses as claimed by Mr Hallmann outside the ambit of the s 74 notices. There is no prejudice to Mr Hallmann because he has provided written submissions, supported by medical evidence, as to the various treatment expenses he claims are reasonably necessary as a result of his injury. The respondent in its written submissions has responded to Mr Hallmann’s submissions, itemising or categorising the disputed medical expenses in a similar format adopted by him.
I therefore grant leave to the respondent pursuant to s 289A(4) of the 1998 Act to dispute the unnotified issue of medical and related treatments expenses claimed by Mr Hallmann.
Mr Hallmann, in his written submissions, seeks leave of the Commission to raise new issues, namely:
(a) application to strike out the respondent’s s 74 notices;
(b)    denial of natural justice;
(c)    respondent has not acted in accordance with the Model Litigant Guidelines issued by the WorkCover Authority;
(d)    admissibility of the respondent’s forensic medical reports, and
(e)    Application to Admit Late Documents dated 18 January 2019.
Mr Hallmann’s applications are refused for the following reasons:
(a)    Directions issued to the parties by the Commission on 2 April 2015, 18 June 2015, 21 August 2015 and 2 August 2018 set timetables for the filling of submissions.
(b)    Direction issued on 18 June 2015 included a notation reminding Mr Hallmann of the provisions of ss 354 and 367 of the 1998 Act and Pt 15 r 1 of the 2011 Rules; that submissions were to be relevant to the issues in dispute; the filing of further evidence by way of Application to Admit Late Documents closed when the Commission called for submissions from the parties in accordance with timetables set in the Directions, and that only in exceptional circumstances would leave be granted to a party to re-open its case.
(c)    Direction issued on 21 August 2015 included a notation reminding the parties of the Commission’s statutory role to provide a fair and cost effective system for the resolution of disputes under the workers compensation legislation; to reduce administrative costs across the workers compensation systems, and that the time for filing of further evidence by way of Application to Admit Late Documents closed when the Commission set timetables for the filing of submissions.
(d)    Direction issued on 2 August 2018 included a notation reminding Mr Hallmann of the provisions of ss 354 and 367 of the 1998 Act, and Pt 15 r 1 of the 2011 Rules, and that submissions were to be relevant to the issues in dispute.
(e) No application was made by Mr Hallmann to re-open his case for the purpose of making an application for the s 74 notices to be struck out prior to filing his submissions on 18 January 2019.
(f)    Ruling made on the admissibility of the respondent’s forensic medical reports delivered in the Statement of Reasons attached to the Amended Certificate of Determination dated 13 December 2016.

(g)    Ruling on the admissibility of the respondent’s forensic medical reports was a ground of an appeal to the Commission constituted by a Presidential member[14].
[14] Hallmann v National Mutual Life Association of Australia Limited [2018] NSWWCCPD 20
(h)    The Deputy President found no error in the admission of the respondent’s forensic medical reports into evidence[15].
[15] supra at [409]
(i)    The Deputy President found that the ground of appeal of a conflict of interest by the respondent’s forensic medical experts had no merit[16]
[16] supra at [335]
(j)    The issue of the respondent allegedly not being a model litigant was a ground of appeal to the Presidential member and was dismissed[17].
[17] supra at [334]
(k)    In accordance with the Direction issued on 2 August 2018, the issue for determination is:
“whether past and future medical and related treatment expenses, including IVF treatment, as particularised at Part 5.3 of the Application to Resolve a Dispute and in notices issued by the respondent pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 dated 11 April 2011, 29 September 2011, 13 October 2011, 14 January 2013, 12 March 2014 and 5 August 2014 are reasonably necessary as a result of injury deemed to have happened on 29 November 1996”.

(l) Prejudice to the respondent if leave was granted to Mr Hallmann to make application for the s 74 notices to be struck out.
(m) Unnecessary delay in the proceedings if leave was granted to Mr Hallmann to raise previously unnotified issues thereby not meeting the Commission’s legislative goal of providing a fair and cost-effective system for the resolution of disputes under the workers compensation legislation.

(n) No exceptional circumstances for leave to be granted to Mr Hallmann to re-open his case after the close of evidence and Directions issued for the parties to provide written submission on the disputed s 60 issues.

(o) Complaints about the alleged conduct of the respondent are an administrative matter for the appropriate statutory authority, which are not relevant to the determination of the disputed issue of declinature of liability for medical and related treatment expenses reasonably necessary as a result of injury within the meaning of s 60 of the 1987 Act.

Section 74 notices

Section 74 notice dated 11 April 2011 (expenses incurred – United States trip)

The relevant parts of the s 74 notice dated 11 April 2012 are set out as follows:
“1. MATTER(s) in dispute
These are as follows:

a.You have claimed reimbursement of various expenses detailed on Walmart receipts dated 9 January 2011, 16 January 2011 and receipt number 5844 1717 0638 1346 3130 and on Under Armour receipt dated 17 January 2011.
b.We dispute that the items referred to in these receipts (other than cough drops) constitute medical or related treatment under the Workers Compensation Act.
c.You have not established that the items are reasonably necessary as a result of your workplace injury.
d.We accordingly dispute liability to reimburse you in respect of these expenses.

2. REASON(S) WE DISPUTE LIABILITY

a.Under section 60 of the Workers Compensation Act, if, as a result of any injury received by a worker, it is reasonably necessary that any medical or related treatment be given, any hospital treatment be given, any ambulance service be provided or any workplace rehabilitation service be provided a workers [sic] employer is liable to pay the cost of that treatment or service.
b.By letter dated 22 March 2011 you have claimed reimbursement of various expenses incurred by you when you visited the United States as referred to in the above documents. The expenses include items such as printer, clothing, stationery, knees stabiliser, cleaner, headset. The items are more fully listed in the receipts.
c.The items claimed obviously do not constitute ‘hospital treatment’, ambulance service’ or workplace rehabilitation service’. Section 59 of the Workers Compensation Act defines ‘medical or related treatment’ as including:
…

a.consequent upon the above we declined at [sic] liability to pay for expenses.
b. There is no evidence that the expenses were reasonably necessary as a result of your injury.
c.In coming to our decision [sic] we have relied upon the provisions of sections 4, 9, 59 and 60 of the Workers Compensation Act.

…

4. ALL REPORTS AND DOCUMENTS RELEVANT TLO THE CLAIM OR ASPECT OF THE CLAIM TO WHICH OUR DECISION TO DISPUTE LIABILITY RELATES.
These are as follows:
a.Your letter dated 22 March 2011 and attachments.
b.We also rely upon the legislation referred to above.

…”

Section 74 notice dated 29 September 2011 (cardiac and pathology tests)

The relevant parts of the s 74 notice dated 29 September 2011 are set out as follows:
“…
1.      MATTERS IN DISPUTE (emphasis in original)
These are as follows:
a.     We dispute liability to pay for proposed investigations for cardiac symptoms and blood tests/pathology for cholesterol, HOL, LAL, TG, glucose, Homocysteine on the basis that they are not reasonably necessary as a result of your injury and such investigations do not related to the injury which is the subject of your claim.
…
1.     THE REASON(S) WE DISPUTE LIABILITY (emphasis in original)
These are as follows:
b.You have requested that this office fund investigations proposed to be undertaken for your alleged cardiac symptoms and blood tests/pathology.
c.The injury you sustained on 29 November 1996 is said to be a chronic fatigue syndrome injury.
d.Your doctor has recommended that you undergo investigations in respect of cardiac symptoms comprising chest pains and palpitations and your doctor has requested that the tests be bulk billed to Medicare where eligible. He has also requested you have blood tests/pathology.
e.You have presented no evidence that the proposed investigations are reasonably necessary as a result of your injury.
f.We had your claim for funding of these investigations assessed by
Dr L. Perides, Occupational Physician and he has expressed the opinion that the proposed investigations do not related to any ongoing work-related injury.
g.In order for there to be a liability for payment of medical expenses including investigations under section 60 of the Workers Compensation Act, such expenses must be reasonably necessary as a result of a work-related injury.
h.As the evidence available to us is that the proposed investigations are not reasonably necessary as a result of a work-related injury [sic] we dispute liability to fund such investigations.
…
4.     ALL REPORTS & DOCUMENTS RELEVANT TO THE CLAIM OR ASPECT OF THE CLAIM TO WHICH OUR DECISION TO DISPUTE LIABILITY RELATES:
These are as follows:
a.Medical report dated 20 September 2011 of Dr L Perides
b.Medical report dated 3 August 2011 of Dr Stephen Potter

5. REPORTS & DOCUMENTS SUBMTTED BY YOU IN MAKING THE CLAIM
These are as follows:
a.Referral dated 7 September 2011 of Dr David Bird (two pages)

…”

Section 74 notice dated 13 October 2011 (cardiac and pathology tests)

The relevant parts of the s 74 noticed dated 13 October 2011 are set out as follows:
“We have carefully considered your claim for ongoing workers compensation benefits following injury you allegedly sustained on 29 November 1996.Wehave undertaken an internal review and have decided that your claim in respect of your cardiac treatment and blood tests (emphasis in original) is declined.
1. MATTERS IN DISPUTE (emphasis in original)
These are as follows:
a.We dispute liability to pay for proposed investigations for cardiac symptoms and blood tests/pathology for cholesterol, HOL, LAL, TC, glucose, Homocysteine on the basis that they are not reasonably necessary as a result of your injury and such investigations do not relate to the injury is the subject of your claim.
2. THE REASON(S) WE DISPUTE LIABILITY (emphasis in original)
These are as follows:
b.You have requested that this office fund investigations to be undertaken for your alleged cardiac symptoms and blood tests/pathology.
c.The injury you sustained on 29 November 1996 is said to be a chronic fatigue syndrome injury.
d.Your doctor has recommended that you undergo investigations in respect of cardiac symptoms comprising chest pains and palpitations and your doctor has requested that the tests be bulk billed to Medicare where eligible. He has also you have blood tests/pathology.
e.You have presented no evidence that the proposed investigations are reasonably necessary as a result of your injury.
f.We had your claim for funding of these investigations assessed by
Dr L. Perides, Occupational Physician and he has expressed the opinion that the proposed investigations do not related to any ongoing work-related injury.
g.In order for there to be a liability for payment of medical expenses including investigations under section 60 of the Workers Compensation Act, such expenses must be reasonably necessary as a result of a work-related injury.
h.As the evidence available to us is that the proposed investigations are not reasonably necessary as a result of a work-related injury [sic] we dispute liability to fund such investigations.

…
4. ALL REPORTS & DOCUMENTS RELEVANT TO THE CLAIM OR ASPECT OF THE CLAIM TO WHICH OUR DECISION TO DISPUTE LIABILITY RELATES.

These are as follows:
a.Medical report dated 20 September 2011 of Dr L Perides
b.Medical report dated 3 August 2011 of Dr Stephen Potter

5. REPORTS & DOCUMENTS SUBMTTED BY YOU IN MAKING THE CLAIM
These are as follows:
a.Referral dated 7 September 2011 of Dr David Bird (two pages)

…”

Section 74 notice dated 12 July 2012 – claims for domestic assistance – s 60AA of the 1987 Act

The relevant parts of the s 74 notice dated 12 July 2012 are set out as follows:
“Your entitlement to domestic assistance for washing, cleaning, lawn mowing and gardening services pursuant to section 60Aa of the Workers Compensation Act 1987 “the 1987 Act”) on the basis that the pre-requites for liability for domestic assistance compensation set out in section 60AA 1(c) and 1(d) of the 1987 Act have not been satisfied and not supported by the available evidence and you have exhausted your entitlement to temporary domestic assistance under section 60AA(2) of the 1987 Act. Further there is insufficient evidence to substantiate any purported claim for domestic assistance in accordance with the WorkCover Guidelines for the Provision of Domestic Assistance.
…
Gratuitous domestic assistance” is defined to be domestic assistance provided to an injured worker which the worker has not had to pay for and is not liable to pay for. That is the type of domestic assistance for which compensation is claimed under section 60Aa by your defector partner, Jacqueline Watson.
The grounds of the dispute are as follows:
1.The provider of the gratuitous assistance, in this case, Jacqueline Watson, firstly has to show she has lost income or foregone employment as a result of providing the domestic assistance, as a precondition to being awarded compensation for gratuitous domestic assistance. There is no evidence in this regard from Jacqueline Watson and the precondition in section 60AA(3) is not satisfied.
2.In relation to your four prerequisites in section 60AA(1), each of those requirements must be satisfied before CGU is liable to meed the costs of domestic assistance.
There is no evidence you have satisfied the 15% WPI threshold and CGU disputes that you have suffered 15% WPI or greater as a result of your injury or disease.
3.Further, you have exhausted the maximum three months of temporary domestic assistance that was available to you under section 60AA(2) and you have no further entitlement to temporary domestic assistance.
On the basis of the above, your entitlement for domestic assistance pursuant to section 60AA of the 1987 Act is declined.
4.CGU also says it is not reasonably necessary that domestic assistance be provided to you as a result of the injury or disease because you are physical capable of performing the domestic chores and tasks in respect of which you are claiming domestic assistance.
….”

Section 74 notice dated 14 January 2013 (IVF treatment)

The relevant parts of the s 74 notice dated 14 January 2013 are set out as follows:

“…
Statement of matters in dispute: (emphasis in original)
Section 60 expenses for IVF treatment
The reason(s) for the decision are: (emphasis in original)
Pursuant to section 60 of the Workers Compensation Act 1987, we do not consider that IVF treatment is reasonable and necessary.
The issues relevant to the decision are: (emphasis in original)
Dr Stephen Potter indicates that no physical diagnosis exists. Therefor we do not consider IVF treatment is reasonable and necessary expenditure under Section 60 of the Workers Compensation Act 1987.
…
Please find attached information, reports and documents supplied by yourself or obtained/received by CGU which are relevant to the decision.
Rheumatologist Dr. Stephen Potter’s report dated 3 August 2011
…”

Section 74 notice dated 12 March 2014 (car travel, car hire, car parking, flights, food and hotel accommodation associated with consultations with nominated treating doctors – Drs Bird (Melbourne), Whiting (Brisbane) and Watson (Townsville)

The relevant parts of the s 74 notice dated 12 March 2014 are set out as follows:
“…
Decision and matter(s) in dispute (emphasis not in original)
By letter to CGU dated 19 February 2014, you have requested reimbursement in the total amount of $11,310.54 for car travel, car hire, car parking costs, flights and food and hotel accommodation, associated with obtaining medical treatment from Dr Bird in Melbourne on 5 and 14 November 2013 and 6 February 2014 (9ncluding flights to and from Melbourne), from Dr Whiting at Taringa Medical Centre in Brisbane on 18 August, 7 and 17 November and 15 December 2013 and 25 January and 2 and 9 February 2014 (by private vehicle), and from Dr Watson in Townsville on 21 November 2013 (involving flights from Brisbane to Townsville and return on 22 and 22 November 2013 and two nights accommodation and hire care expenses in Townsville). The expenses claimed were incurred in the period from August 2013 to February 2014.
CGU has considered your claim for incurred treatment-related travel and accommodation expenses.
CGU disputes your entitlement to these incurred treatment-related travel and accommodation expenses pursuant to section 60(1), Section 60(2)(a), section 60(2A) and section 60(2B) of the Workers Compensation Act 1987 (“the 1987 Act”) on the basis that the related medical treatments and services were not reasonably necessary as a result of the injury and the related travel expenses are not compensable, the travel and related expenses were not necessarily and reasonably incurred, there was no prior approval given by CGU for these non-exempt treatments and the treatments or services were provided at locations that necessitated more travel than was reasonably necessary to obtain the treatments or services.
…
1. Grounds of dispute ad reason(s) for the decision (emphasis in original)
CGU has disputed liability for the incurred travel, accommodation and related expenses claimed by you as outlined above.
The grounds of dispute are as follows:
(i)Section 60(1) (emphasis in original)
The first issue is whether the treatments provided by these three doctors, Dr Bird, Dr Watson and Dr Whiting, which you received between August 2013 and February 2014, were reasonably necessary as a result of your ME/CFS disease injury.
CGU does not have particulars of the specific treatments that you received from the three treating doctors at these consultation between August 2013 and February 2014 when these travel and related expenses were incurred. CGU requests further particulars from you about these treatments, including the nature of the treatment you received at each of these consultations for which travel and related expenses are claimed. Please also obtain and provide copies of clinical notes from the three treating doctors outlining what treatments were provided at each of these consultations.
In the absence of these particulars and corroborating medical evidence, CGU does not accept that you have established that the treatments for which these travel and related expenses are claimed, were reasonably necessary treatments or services as a result of your ME/CFS disease.
Furthermore, in relation to the reports of Dr Whiting darted 24 March and 29 August 2013, Professor Wakefield made the following comments in his supplementary report dated 30 September 2013:
·He disagreed with the treatments outlined by Dr Whiting. In particular he believed there was no evidence to support the suggestion that physiotherapy or chiropractic treatment and supplement vitamins had a significant role in improving the health outcomes of patients with CFS. He excluded IVF treatment as being relevant to this case.
·Dr Whiting failed to mention the fact a large number of tests that have been proposed to the diagnostic of CFS such as viral studies, metabolic and physiological studies, have failed the test of time and have not been able to be satisfactorily reproduced.
·The tests undertaken by you were described at best to be experimental and Dr Whiting was not aware that you were completing a PhD related to CFS (Professor Wakefield said a number of the studies may have been prompted by you and your physicians’ interest in further researching the nature and pathophysiology of CFS).
·He disagreed with the extraordinary number of totally unnecessary research-based tests you had undertaken. He believed there was no need for you to have SPECT, blood gas analysis, ACE level determinations, tilt table testing, EEGs or genetic testing to make a diagnosis of CFS. He believed you had been the subject of a large array of expensive and mostly experimental tests that did not help to substantiate the DFS diagnosis.
·He indicated Dr whiting had relied on anecdotal evidence to assert that low testosterone levels are common in CFS patients; but Professor Wakefield said, in his experience, this was uncommon and he had not seen any medical literature to support such an opinion. He said CFS was not a cause of testosterone.
·He indicated it was not appropriate for every test you have to be rationalised as being part of the management of CFS. This approach was simply not justified.

CGU says there are more cost-effective and appropriate treatment measures for you than having to travel interstate to see Drs Bird, Watson and Whiting, primarily for treatments which Professor Wakefield considers have involved an unjustified level of repeat and experimental and unproven tests and included treatments or investigations of other health conditions which are unlikely to have resulted from your ME/CFS condition.
CGU relies on the reports of Professor Wakefield and the other evidence attached to this notice and denies liability for the treatments provided by Doctors Bird, Watson and Whiting, and associated travel expenses, on the basis that the treatments were not reasonably necessary as a result of the injury/disease and/or have not been established to have been reasonably necessary treatments or services as a result of injury/disease (under section 60(1)).
(ii)Section 60(2)(a) (emphasis in original)

…

The key words in this provision are that the travel and related expenses must be ‘necessarily and reasonably incurred’ in obtaining the treatment.
CGU says there are medical practitioners and health service providers, who are available in Norther NSW and on the Gold Coast who have the ability and expertise to provide treatment of your ME/CFS.
CGU says your condition has been present for over fifteen years and the treatment regime is now well-established and it is unnecessary for you to regularly travel to Melbourne, Brisbane and Townsville to be monitored or to be further investigated, or for minor changes to your treatment programme. In other words, CGU says your treatment needs could be just as easily be managed by a local treating doctor, even with occasional telephone consultations with one of your preferred interstate treating doctors.
CGU says that the incurred travel expenses were not necessarily and reasonably incurred (as required to be compensable under section 60(2)(a) for the following reasons:

·The availability of doctors and specialists in northern NSW and/or the Gold Coast to treat your ME/CFS condition (as opposed to you travelling regularly to Melbourne, Brisbane and Townsville for treatment at inordinate cost and expenses to the Scheme).
ME/CFS Australia is an affiliation of autonomous state ME/CFS organisations which operates at the national level and approaches ME/CFS issues from a national perspective. CGU assumes you are familiar with the organisation from you PhD research into ME/CFS. The organisation operates as a public, non-profit company, limited by guarantee, with each having a society and support group for ME/CFS patients, including providing assistance with referrals to doctors specialising in the treatment of the condition.
CGU says that ME/CFS Australia would be able to provide you with a list of all of the recommended doctors specialising in treatment of ME/CFS in regions close to your residence (i.e. in the New England region, Northern NSW and the Gold Coast).
…
CGU says it is, and has been, also possible for you to identify such doctors by way of internet searches and telephone enquiries.
·In the alternative, CGU says you could occasional telephone consultations with these interstate doctors (which could have avoided repeated, expensive travel expenses claims) and any blood tests could have been done at a local GP’s surgery and sent to pathology lab and the results could have been forwarded to Dr Bird or the other interstate doctors for comment.
·In the alternative, CGU says you could and should have used public transport to travel to and from Melbourne airport to Melbourne city to see
Dr Bird NTD (as opposed to expensive car hire)
·In the alternative, CGU says you should have booked economy class flights to travel to and from Melbourne and Brisbane to see your treating doctors (as opposed to business class travel).
·In the alternative, CGU says you did not need to stay overnight in Melbourne, Brisbane or Townsville when you saw these treating doctors. Return flights could have been booked on the same day.

·In the alternative, CGU says you should have booked standard hotel accommodation in Melbourne when you travelled to see Dr Bird (as opposed to staying in four to five star hotels).

For these reasons, CGU says that the travel and associated expenses claimed between August 2013 and February 2014 were not necessarily and reasonably incurred (as required by section 60(2)(a) and CGU is not liable for those claims.

(iii)Section 60(2A) (emphasis in original)

…
Section 60(2A) applies to medical treatments or services provided on or after 27 June 2012 which includes all the medical treatments on which your current travel expenses and related claims are based.
Section 60(2A) stipulates that non-exempt treatments incurred without prior insurer approval are not payable by the insurer. The exempt treatments referred to in section 60(2A) are outlined in the WorkCover Guidelines for Claiming Compensation Benefits (emphasis in original) (at pages 28-30)
In this case, the travel expenses were claimed related to treatments which were received from August 2013 to February 2014 and none of these expenses claimed appear to relate to ‘exempt treatments’ as defined in the WorkCover Guidelines. As such, CGU believes that section 60(2A) applies to medical treatments and services which are the subject of these travel expenses and related expenses claim.
In relation to the incurred medical and travel expenses, which are the subject of the current claims, you did not seek prior approval from CGU for these specific treatments and, as a consequence, CGU is not liable to reimburse you for such medical expenses (or related travel expenses) under section 60(2A).
(iv)Section 60(2B) (emphasis in original)

…
In the current matter, the expenses claimed were incurred in the period from August 2013 to February 2014 and were associated with treatment obtained by you from Drs Bird, Watson and Whiting. The expenses claimed are the cost of car travel, car rental, parking, flights, food and hotel accommodation. You appear to travel to Melbourne on a regular basis to visit your NTD (Dr Bird) and to Brisbane and Townsville occasionally to consult your treating specialists
(Drs Watson and Whiting). A round trip by car to see Dr Watson in Brisbane involves a claim for about $120 per trip. The claims for a return flight to and from Melbourne to see Dr Bird range from about $1,100 to $1,400 per trip (they seem to have been first class or business class fares). You also seem to have stayed in expensive hotel accommodation at the Hilton or Grand Hotel in Melbourne at a cost of about $450.00 to $700.00 each time.
CGU relies on section 60(2B) and says the treatments or services were given at locations which necessitated more travel (and expense) than was reasonably necessary to obtain the treatments or services. CGU’s arguments in this regard are as follows:
·The availability of doctors and specialists in the New England region, Northern NSW and the Gold Coast to treat your ME/CFS condition (as opposed to you travelling to Melbourne, Brisbane and Townsville for such treatment).
ME/CFS Australia (referred to above) will be able to provide you with a list of recommended doctors specialising in treatment of ME/CFS in regions close to your residence….
·In the alternative, you could have had occasional telephone or Skype consultations with these doctors (which would have avoided repeated and very expensive travel expenses claims) and any blood tests could have been done at a local GP’s surgery and sent to a pathology lab and the results could have been forwarded to Dr Bird or the other interstate doctors for comment.

CGU says the incurred travel, accommodation and related expenses necessitated far more travel (and expense) than was reasonably necessary. Pursuant to the new section 60(2B), CGU is therefore not liable to these travel and related expenses claims.
Ultimately, CGU prefers the evidence it has obtained over the evidence presented by you.
CGU reserves the right to obtain additional evidence. If CGU decides to do so, a supplementary section 74 or 287A review notice will be issued to you.
The future (emphasis in original)
CGU places you on notice that it will not accept any further claims for medical treatment expenses or travel or related expenses incurred in respect of you obtaining any treatments or services from Dr Bird in Melbourne, Dr Whiting in Brisbane and Dr Watson in Townsville or any other doctors or health professionals who practice at interstate or non-local locations – for the same reasons that have been outlined above in terms of the grounds of dispute for your claims for travel and related expenses incurred between August 2013 and February 2014.
CGU’ approval is required for any (emphasis in original) further non-exempt medical treatments or services you propose to undertake or receive (as per section60(2A)). A copy of pages 28-30 to the WorkCover Guidelines for Claiming Compensation Benefits (which set out the ‘exempt treatments’) is attached for your information.
2. Issue(s) relevant to the decision
1.The travel, accommodation and related expenses incurred were not reasonably necessary as a result of the injury, pursuant to s 60(1) of the 1987 Act.
2.The incurred travel, accommodation and related expenses were not necessarily and reasonably incurred pursuant to section 60(2)(a) of the 1987 Act.
3.CGU is not liable for the incurred travel and accommodation expenses as you did not obtain prior approval for these medical treatments and services as required pursuant to section 60(2A) of the 1987 Act.
4.CGU is not liable for the incurred travel and accommodation expenses because the treatments or services were given or provided at locations that necessitated more travel than was reasonably necessary to obtain the treatments or services, pursuant to section 60(2B) of the 1987 Act.

3. Reports and documents relevant to the decision (emphasis in original)
…
The following documents have been submitted by you in relation to the subject claims for travel and related expenses incurred between August 2013 and February 2014:
1.Letter from you to CGU dated 19 February 2014, including a list of various travel claims (medical visits) and tax invoices for flights, hotel accommodation and hire car expenses and ancillary expenses.

….”

Section 74 notice dated 5 August 2014 (ongoing physiotherapy and chiropractic treatment)

The relevant parts of the s 74 noticed dated 5 August 2014 are set out as follows:
“…
1. Decision and matter(s) in dispute (emphasis in original)
Your entitlement to medical treatment expenses in relation to ongoing physiotherapy and chiropractic treatment is disputed pursuant to section 60(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) on the basis that these modalities of treatment are not reasonably necessary treatments per se (emphasis in original).
…
2. Grounds of dispute and reason(s) for the decision

We have disputed liability for ongoing medical expenses in respect of physiotherapy and chiropractic treatment.
The relevant provision of the workers compensation legislation in relation to payment of medical treatment expenses is section 60(1) of the 1987 Act.
…
The grounds of the dispute are as follows:
1.CGU says it is not reasonably necessary for you to have ongoing physiotherapy and chiropractic treatment as a result of your ME/CFS disease injury.
2.In the alternative, CGU says it is not reasonably necessary for you to have ongoing physiotherapy and chiropractic treatment, per se (emphasis in original).

CGU will allow you to have a further three sessions of physiotherapy treatment only; but only on the condition they are fully devoted to training you in home exercises and stretches and flare management. CGU considers this allowance to be in line with the comments of Professor Wakefield and Greg Schneider in relation to more cost-effective and reasonable alternatives. Before CGU approves these three treatments CGU will require a new physiotherapy plan from your treating physiotherapist which specifically states that three further treatments (for one hour each or less) will be sole devoted to training you in home exercises and stretches and flare management.
On your claim to date you have had approximately 843 sessions of physiotherapy treatments at a total cost of $93,191.70 and you have had approximately 118 sessions of chiropractic treatment at a total cost of $8,946.10. These excessive levels of treatment have continued to be claimed by you despite you denying any improvement in your symptoms, condition or work capacity in recent years.
CGU relies primarily on the opinions of Greg Schneider, independent physiotherapy consultant and Professor Denis Wakefield, together with surveillance and other investigations evidence in relation to your regular and vigorous participation in competitive cricket and baseball umpiring and other travel and leisure activities.
CGU also relies on the previous opinions of Ross Baines, an independent physiotherapy consultant, Professor Oakeshott and Drs Sutherland, Slezak and Potter, in support of the above grounds of dispute.
In reports dated 129 December 2011 and 5 January 2012, Greg Schneider (emphasis in original), an independent physiotherapy consultant, indicated that despite you having frequent physiotherapy over a prolonged period, there has been no sustained improvement in your physical capabilities or a sustained upgrading of work hours (Comment: He said this was not the fault of the physiotherapist or the treatment, but rather that the treatment was inappropriate for the condition and there could be no probability of sustained benefits (emphasis in original)).
Mr Schneider said ongoing physiotherapy could not be considered cost-effective due to the absence of sustained benefits and the available alternative form of management, namely, a daily stretching routine to maintain joint/soft tissue mobility and prevent soft tissue tightness.
Mr Schneider concluded ongoing physiotherapy was not reasonably necessary medical treatment for you.
In a report dated 13 July 2014, Professor Wakefield (emphasis in original) indicated that he does not believe it is reasonably necessary for you to have ongoing physiotherapy for your CFS. Although he accepted that physiotherapy may provide short-term physical benefit in terms of pain management, he considered the principles which underpinned such treatment could be learned by you and carried out independently.
Professor Wakefield believed your request for continuing physiotherapy treatment cold be related to your sporting activities, particularly playing cricket, running and fielding (which might cause joint pain).
Professor Wakefield indicated there was an absence of controlled trials to provide scientific evidence to the medical profession that physiotherapy is necessary, cost-effective and acceptable effective treatment for individuals with CFS.
Professor Wakefield does not believe it is reasonably necessary for you to have ongoing chiropractic treatment for your condition. He pointed to the absence of scientific evidence, based on appropriate clinical trials, that chiropractic therapy is beneficial for the treatment, management and long-term health of patients with CFS.
Professor Wakefield believed there were indications of exaggeration, inconsistencies and unreliability based on the clinical findings from his prior assessments of you and the surveillance and other evidence provided in terms of your participation in sporting and employment-related activities.
In particular, Professor Wakefield believed your participation in playing competitive cricket and umpiring baseball indicated your fatigue was not as severe as reported. Moreover, he considered your ability to score significant runs and participate in activities of bowling and fielding was not consistent with your reported disability or what one would expect from a severely debilitated person with CFS. He noted you were able to play competitive cricket on a weekly or fortnightly basis in the 2014 season and that your performance has improved compared to previous seasons. He noted that you had no difficulty in umpiring baseball on a regular basis. He also noted your reported difficulties in relation to memory and concentration were inconsistent with your regular participation in baseball umpiring and the completion of a university degree with honours.
Professor Wakefield concluded the role of alternative and complimentary treatments (namely physiotherapy and chiropractic treatment) had not been established and it was not generally accepted by the medical profession as there was a lack of scientific evidence indicating that they improved patient care or outcome in individuals with CFS.
3. Issue(s) relevant to the decision (emphasis in original)
1.Whether it is reasonably necessary for you to have ongoing physiotherapy and chiropractic treatment as a result of your Me/CFS disease injury
2.In the alternative, whether it [sic] reasonably necessary for you to have ongoing physiotherapy and chiropractic treatment, per se (emphasis in original).

4. Reports and documents relevant to the decision (emphasis in original)
CGU relies on the evidence below as being relevant to the decision:
Medical and Vocational Evidence (emphasis in original)
…
Surveillance and Factual Evidence (emphasis in original)
…
Lists of payments (emphasis in original)
…
Previous Proceedings (emphasis in original)
5. Please find attached information, reports and documents supplied by yourself (which you already have in your possession) or obtained and received by CGU, which are relevant to the decision (emphasis in original)
All of the documents listed in paragraph 4 above (except for the report of Professor Wakefield dated 13 July 2014 and CGU lists of payments for chiropractic and physiotherapy treatments) are already in your possession and were served on your legal representatives in recent proceedings in the Workers Compensation Commission (5494/13).
To avoid unnecessary duplication, CGU has not attached copies of these documents to this section 74 notice. If you do not have copies of any of above documents, please let us know as soon as possible and we will promptly provide further copies to you in response to any reasonable request.
CGU has attached copies of the report of Professor Wakefield dated 13 July 2014 and CGU lists of payments for chiropractic and physiotherapy treatments.
….”

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. The parties were informed of my intention to determine the dispute in regard to the claims for medical and related treatment expenses pursuant to s 60 of the 1987 Act without holding a further conciliation conference or arbitration hearing.

EVIDENCE

Documentary evidence

I do not propose to list the voluminous and excessive number of documents filed by the parties, which is a matter of record on the Commission’s computerised system.

Medical evidence

I do not propose to set out all the voluminous medical evidence relied upon by the parties but will refer to the relevant reports in my determination of the disputed issue relating to the claims for medical and related treatment expenses pursuant to s 60.

Applicant’s medical evidence

Mr Hallmann relies upon the opinions of his nominated treating doctors, Drs Bird, Watson and Whiting, in support of his claims for medical and related treatment expenses as a result of his injury.
Dr Bird, general practitioner, has been treating Mr Hallmann since 2004. Dr Bird has an interest in the treatment and management of patients suffering with ME/CFS with overlapping or co-morbid FM.
Dr Bird has provided the following reports:
(b)     30 June 2005;
(c)   17 July 2009[18];
(d)     8 March 2010[19]
(e)     12 June 2010[20];
(f)    21 June 2010;[21]
(g)     29 May 2011[22];
(h)     15 June 2011[23];
(i)    4 May 2012[24];
(j)    6 May 2013[25], and
(k)   25 May 2014[26].
[18] Application to Admit Late Documents filed by the applicant on 1 October 2014 – pp 22-23
[19] Application – pp 14-54
[20] supra – pp 27-28
[21] Application to Admit Late Documents filed by the applicant on 1 October 2014 – pp 27-28
[22] supra – pp 29-32
[23] Application – p 67
[24] Application to Admit Late Documents filed by the applicant on 13 October 2014 – pp 25-28
[25] Application to Admit Late Documents filed by the applicant on 18 February 2015 – pp 1-37
[26] Application – pp 1469-1487
Dr Watson, who specialises in the treatment and management of patients suffering with ME/CFS with overlapping or co-morbid FM, has been treating Mr Hallmann since 2007.
Dr Watson has provided the following reports dated:
(a)     7 December 2012[27];
(b)     22 December 2012[28]
(c)   27 December 2012[29], and
(d)     25 May 2014[30].
[27] supra – pp 68-234
[28] supra – pp 113-239
[29] supra – pp 240-359
[30] supra – pp 1266-1468
Dr Whiting, who specialises in the treatment and management of patients suffering with ME/CFS with overlapping or co-morbid FM, has been treating Mr Hallmann since December 2011.
Dr Whiting has provided the following reports dated:
(a)     24 March 2013[31];
(b)     27 March 2013[32];
(c)   25 July 2013;
(d)     23 May 2014[33];
(e)     25 May 2014[34];
(f)    26 May 2014[35];
(g)     26 May 2014[36];
(h)     25 November 2014[37];
(i)    25 January 2015[38]
(j)    30 July 2015;
[31] supra – pp 360-502
[32] supra – pp 684-749
[33] supra – pp 750-755
[34] supra – pp 756-1085
[35] supra – pp 1086-1203
[36] supra – pp 1204-1265
[37] Application to Admit Late Documents filed by the applicant on 25 November 2014 – pp1-319
[38] Application to Admit Late Documents filed by the applicant on 27 January 2015 – pp 1-145

Respondent’s medical evidence

The respondent relies principally upon the opinions of Prof Wakefield, who is the Director of Immunopathology for the South Eastern Sydney Local Health District at the Prince of Wales Hospital, in support of its decisions to dispute liability for the claims of medical and related treatment expenses.
Prof Wakefield assessed Mr Hallmann on 30 November 2012 and 20 September 2013.
Prof Wakefield has provided the following forensic medical reports dated:
(a)     30 November 2012[39];
(b)     30 September 2013[40];
(c)   13 July 2014[41];
(d)     24 November 2014[42];
(e)     7 December 2014[43], and
(f)    26 January 2015[44].
[39] Reply – pp 386-396
[40] supra – pp 449-468
[41] supra – pp 469-472
[42] Application to Admit Late Documents filed by the respondent on 25 November 2014 – pp 118-140
[43] Application to Admit Late Documents filed by the respondent on 8 December 2014 – pp 3-27
[44] Application to Admit Late Documents filed by the respondent on 27 January 2015 – pp 3-8

Written submissions

I do not propose to set out the parties’ submissions, in the case of Mr Hallmann they are voluminous, but will refer to them where relevant in this determination.

Applicant

Mr Hallmann has provided the following written submissions:
(a)     635 pages attaching six annexures filed on 18 January 2019;
(b)     956 pages attaching six annexures filed on 24 January 2019, and
(c)   30 pages attaching two annexures filed on 11 April 2019.

Respondent

The respondent filed its written submissions 8 pages) on 10 April 2019.

FINDINGS AND REASONS

Background

This is a summary only of the onset of symptoms and relevant investigations undertaken to diagnose ME/CFS with persisting FM; and does not include every investigation, consultations with medical providers and the chronicity or multitude of investigations undertaken, and the treatment provided to Mr Hallmann over the years since the onset of his symptoms.
In 1992, within days of commencing employment with the respondent, Mr Hallmann experienced an illness consistent with an infectious origin which was diagnosed clinically and serologically as infectious mononucleosis (Glandular Fever/Epstein-Barr Viral Disease).
In 1994, Mr Hallmann reported the onset of sinus symptoms.

In 1995, Mr Hallmann reported flu like symptoms.
In 1996, Mr Hallmann had a series of flu like illness that were diagnosed and treated as Bronchial asthma.
On 23 July 1997, Mr Hallmann attended upon Mr Downs, physiotherapist, for low back pain, which he reported as having its onset in mid-October 1996[45]
[45] report of Chris Downs dated 11 August 1997 – Reply – pp 20-21
In late 1996, Mr Hallmann woke with pain in the right groin, right upper leg and low back[46].
[46] report of Dr Watson dated 7 December 2012 – Application – p 70
On 4 November 1996, Mr Hallmann attended upon Mr Neil Manson, chiropractor, at the Stevenson Chiropractic Clinic for treatment of his “groin, hip, low back and Achilles tendon”[47].

[47] report of Neil Manson dated 26 February 1999 – Application to Admit Late Documents dated 10 July 2015
The patient record of the Stevenson Chiropractic Clinic in respect of Mr Hallmann’s attendance on 4 November 1996 records his complaints as follows[48]:
“fatigue”, “low back pain”, “joint pain/stiffness” “walking problems” “currently has a bit of pain in the right groin & hip, some back pain and Achilles Problems.”
[48] Application – pp 1724-1725
On 29 November 1996, Mr Hallmann was unable to attend work because of pain which he said: “hit me firmly in the lower back and groin”[49].
[49] Application to Admit Late Documents filed on 18 February 2015 – “History of the Condition” – p 46
In 1996 and 1997 Mr Hallmann underwent special investigations in the form of x-rays, CT and MRI scans.
In May 1997, Mr Hallmann, at the request of the respondent, attended upon Dr Sage, orthopaedic surgeon, for assessment.
Dr Watson reported that Dr Sage wrote: “lethargy and bizarre symptoms”, noting the radiating nature of the pain in the muscles[50].
[50] Application – p 71
Dr Watson is of the opinion that the “documents” provided to him, demonstrate the onset of the condition of ME/CFS was in 1996, and that the sudden nature of the onset on 29 November 1996, in his opinion, was “self-evident when one takes into account the criteria applicable for ME/CFS being the 1994 CDC Criteria (Fukuda et al) and the 2003 Consensus Criteria (Carruthers et al)”.[51]
[51] supra – p 71
In April 1998, Mr Hallmann was diagnosed with CFS by Dr Helen Willoughby, confirmed by Dr Ian Stewart, respiratory physician, who found he also suffered with the overlapping condition of FM.
In 1998, Mr Hallmann was tested for various pathogens which demonstrated that he had mycoplasma mosorei and fermentans and Rickettsia australis consistent with ME/CFS.
In late 1998, Mr Hallmann underwent a Tilt Table Test which was positive to Postural Osthostatic Tachycardia Syndrome (POTTS).
In 1998, 1999 and 2000, Mr Hallmann underwent “Bioscreen” tests; the results were found to be consistent with ME/CFS
In 1999/2000 and 2009, Mr Hallmann underwent psychological testing by Dr King, clinical psychologist, which revealed, in Dr Watson’s opinion, issues with Mr Hallmann’s IQ and processing speed; also consistent with his symptoms and indicia of brain dysfunction.
In 2000, Mr Hallmann underwent RNAse L testing, which showed he had a dysregulation of the 2-5A Synthetase/RNAse L anti-viral pathway, consistent with ME/CFS.
In 2001, Mr Hallmann underwent a Holter monitor which showed mild tachycardia consistent, in Dr Watson’s opinion, with complaints of faintness and palpitations.
In 2001, Mr Hallmann underwent an qEEG brain topography revealing there was an abnormality, similar, in Dr Watson’s opinion, to the condition of ADHD, and consistent with ME/CFS.
Dr Whiting concluded that the psychological testing and qEEG indicated serious issues with respect to brain activity consistent with ME/CFS.
Mr Hallmann has undergone pathological investigations.
Mr Hallmann has undergone a plethora of investigations since the diagnosis of his ME/CFS in April 1998 by Dr Willoughby, too numerous to be set out, but referred to by Drs Watson and Whiting in their multiple reports to support their diagnosis of ME/CFS with overlapping FM.
Dr Watson referred to the diagnostic evidence in his report dated 7 December 2012 upon which he reached his conclusion that Mr Hallmann suffers with ME/CFS and FM[52].
[52] Application – pp 78-84
Dr Watson in the same report set out the symptoms which Mr Hallmann has been suffering with since 1996[53]:
“1.     Fatigue (static and post-exertional)
2.     Pain (static and post-exertional)
3.     Disturbed neurocognitive function
4.     Reduced physical ability
5.     Multiple widespread sensory and bodily system dysfunctions.”
[53] report of Dr Watson dated 7 December 2012 – Application – p 85
In respect of pain, Dr Watson said[54]:
“Pain is variable in intensity and nature, but in some degree is constantly present. He rates his static pain at 3/10. He notes that this can escalate to 7/10 following exercise and higher following significant exertion. He breaks his pain into three types being total body pain, joint pain and pain at specific sites. It is also variable in its widespread distribution but always at multiple sites. Visual recording of these sites in the several Brief Pain Inventories carried out over the six years that I have been involved in this case, are included for your information. In quality it varies from a dull to a deep ache, to jabbing, lancinating, electric-like shooting pains to burning sensation with the latter being a very prominent feature. Spasm at multiple levels of the body occurs regularly but unpredictably and is always associated with a general increase, but also a local increase of pain at the site of spasm. Associated with the pain is often numbness or tingling. On each occasion when seen he has shown exquisite tenderness of the established fibromyalgic trigger points, but also a more generalised deep pressure hypersensitivity, particularly in the areas where he is prone to spasm. I have recently viewed an involuntary spasm during my examination in which he had an involuntary reaction from the abdominal palpation which caused spasm of the thoracic paraspinal muscles. He complained also on a number of pains in the back that progressed to spasm as he was on the examination table….”
[54] supra – p 86-87
Dr Watson said that pain has been a major feature of the clinical syndrome as have been variable sensory disturbances, consistent with the diagnosis of FM which is accepted as a common co-morbidity overlapping with ME/CFS[55].
[55] report of Dr Watson dated 7 December 2012 – Application – p 104
Dr Watson also said that the widespread sensory disturbance suggests a central neuropathic disturbance rather than nerve root or peripheral nerve involvement, consistent with the basic pathophysiology of FM.
In respect of cognitive function, Dr Watson said[56]:
“Cognitive Function – Disturbed cognitive function manifests in many ways, but particularly his inability to concentrate, short term memory issues, processing speed, organisation and retention of material. Its presence varies and is not predictable except when he engages in exercise or significant activity. In such cases it is always precipitated or accentuated with deteriorating fatigue and pain is frequently associated under these circumstances with mumbling verbalisation and difficulty in word finding. The ‘numbing of his brain’ has been a significant factor in the extended period required for his academic achievements and the need for positive discrimination by his examining institutes. It is noted that between 2006 and 2011 he has attempted six units in a Graduate certificate and he has failed five of those units.”
[56] supra – p 87
Mr Hallmann has also undergone extensive physiotherapy and chiropractic treatment since 1997 to 2001 with a break until 2004, and then resumed until liability was declined upon the issuing of the s 74 notice dated 5 August 2014.
In April 2012, Dr Whiting requested a SPECT scan of the brain which revealed significant reduction of blood flow to the brain, consistent with ME/CFS, which correlated with the positive Tilt Table test and assertions of brain damage/dysfunction as found by Dr King[57].
[57] report of Dr Watson dated 22 December 2012 – Application – p 123
Dr Whiting said that the SPECT scan revealed quite marked deficits in cerebral perfusion or focal glucose uptake in various cortical and subcritical areas of grey matter, and that such results are consistent with ME/CFS research and reflective of a brain function injury[58].
[58] report of Dr Whiting dated 26 May 2014 – Application – p 1164
The SPECT scan was repeated in February 2013.
Dr Whiting said that cerebral blood flow abnormalities as revealed by the SPECT scans are a feature of “neutrally mediated hypotension” consistent with ME/CFS[59].
[59] report of Dr Whiting dated 24 March 2013 – Application – p 436
Mr Hallmann has been prescribed numerous medications for his ME/CFS, including vitamin supplements.
Dr Watson said that FM and CFS commonly run together, and that the applicable criteria for FM is the 1990 American College of Rheumatology criteria which states[60]:
[60] report of Dr Watson dated 7 December 2012 – Application – pp 100-101
“1. History of widespread pain has been present for at least three months;
2. Pain is considered widespread when all of the following are present:

·Pain in both sides of the body
·Pain above and below the waist. In addition, axial skeletal pain (cervical spine anterior chest, thoracic spine or low back pain) must be present. Low back pain is considered lower segment pain.
·Pain in 11 of 18 tender point sites on digital palpation
·Definition: Pain, on digital palpation, must be present in at least 11 of the following 18 tender point sites:
·Occiput – (2) – at the suboccipital muscle insertions.
·Low cervical (2) – at the anterior aspects of the intertransverse spaces at C5-C7
·Trapezius (2) – at the midpoint of the upper body.
·Supraspinatus (2) – at origins, above the scapula spine near the medial border.
·Second rib (2) – upper, lateral to the second costochondral junction.
·Lateral epicondyle (2) – 2 cm distal to the epicondyles.
·Gluteal (2) – in upper outer quadrants of buttocks in the anterior fold of muscle.
·Greater trochanter (2) – posterior to the trochanteric prominence.
·Knee (2) – at the medial fat pad proximal to the joint line

Digital palpation should be performed with an approximate force of 4 kg. A tender pint has to be painful at palpation, not just ‘tender’.”

Drs Watson and Whiting concluded on their review of the medical evidence, the results of the numerous investigations and their evaluation of Mr Hallmann’s symptoms, that his symptoms satisfied the criteria for ME/CFS, in accordance with the 1995 CDC and 2003 Canadian Consensus, and the criteria for FM (North American definition), which overlaps the ME/CFS. The applicable criteria for FM are the 1990 and 2010 College of Rheumatology[61].
[61] report of Dr Watson dated 7 December 2012 – Application – p 100 and Amended Medical Assessment Certificate issued by the Approved Medical Specialist dated 19 July 2018 – p 5
Prof Wakefield initially assessed Mr Hallmann to be suffering with CFS and FM but subsequently accepted he fulfils the diagnostic criteria for ME/CFS and FM[62]. Prof Wakefield said there is no cure for CFS[63].
[62] report of Prof Wakefield dated 27 November 2014 – Reply – p 140
[63] report of Prof Wakefield dated 30 September 2013 – Reply – p 454
ME/CSF are complex disorders with neuro immune disturbances[64] manifesting itself in cognitive dysfunction[65] and neurocognitive impairment[66].
[64] report of Prof Wakefield dated 27 November 2014 – Reply – p 119
[65] report of Dr Watson dated 7 December 2012 – Application – p 87
[66] report of Prof Wakefield dated 7 December 2014 – Application to Admit Late Documents filed by the respondent on 8 December 2014 – p 4
ME indicates there is evidence of inflammation in the brain and muscles of patients suffering with CFS[67].
[67] report of Prof Wakefield dated 27 November 2014 – Reply – p 128
ME/CFS is a multi-system condition that effects the body with pain and fatigue, and in the opinion of Dr Watson, “impacts upon almost all of the body systems”[68]
[68] report of Dr Watson dated 22 December 2012 – Application – p 141
FM is commonly associated with CFS resulting in patients experiencing pain and tenderness in fibro muscular tissue throughout the body[69], described by Drs Watson and Whiting as co-morbid or overlapping with CFS[70]. Dr Watson said cognitive problems and post-exertional fatigue make the diagnosis of ME/CFS more appropriate as the primary diagnosis[71].
[69] report of Prof Wakefield dated 7 December 2014 – Application to Admit Late Documents filed by the respondent on 8 December 2014 – p 23
[70] report of Dr Watson dated 7 December 2012 – Application – p 101
[71] supra
For reasons I gave in the Certificate of Determination dated 23 July 2019, I found that
Drs Bird, Whiting and Watson, and Prof Wakefield are eminently qualified and are experts in the fields of ME/CFS and FM.

Discussion and findings

Section 60 of the 1987 Act was amended by the Workers Compensation Amendment Act 2012 (the 2012 amending Act) effective from 27 June 2012.
The principles distilled by Deputy President Roche in Bielecki v Rianthelle Pty Ltd t/as Belfora[72] (Bielecki) for a worker to establish liability under s 60(1) has not been affected by the 2012 amending Act, namely, three conditions must be satisfied:

(a)    that the worker received an injury to which employment was a substantial contributing factor;
(b)    that the treatment or expense was as a result of that injury, and
(c)    that the treatment was reasonably necessary.

[72] [2008] NSWWCCPD 53 at [18]-[21]

In Bartolo v Western Sydney Area Health Service[73] (Bartolo), Burke CCJ considered the meaning of the words “reasonably necessary” in s 60(1):

“… should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[73] [1999] NSWCCR 1 at p 238
In Rose v Health Commission (NSW)[74] (Rose) Burke CCJ said:
“…

3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.     It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
[74] [1986] NSWCCR 2
In Diab v NRMA[75] (Diab), Deputy President Roach considered the meaning of the phrase “reasonably necessary”:
[75] [2014] NSWWCCPD 72 at [80]-[90]

“80.   The Court of Appeal considered the meaning of ‘reasonably necessary’ in Clampett v WorkCover Authority (NSW) [2003] NSWCA 52; (2003) 25 NSWCCR 99 (Clampett). That case concerned whether proposed home modifications for a paraplegic were ‘reasonably necessary’ having regard to the nature of the worker’s incapacity. Grove J (Meagher and Santow JJA agreeing) noted that the trial judge had sought guidance from Rose and Pelama Pty Ltd v Blake [1988] NSWCC 6; (1988) 4 NSWCCR 264 (Pelama), another decision by Burke CCJ where his Honour applied the principles discussed in Rose and Bartolo.
81.   Grove J referred to the dictionary definition of ‘necessary’ as being ‘indispensable, requisite, needful, that cannot be done without’ (Shorter Oxford English Dictionary, 3^rd ed) and ‘that cannot be dispensed with’ (Macquarie Dictionary).
82     His Honour added, at [23]–[24]:
‘23. The essential issue is what effect flows from conditioning such qualities as “reasonably”. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be “reasonably necessary” there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of “necessary” in this context.
24.The statute does not inhibit inquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of “necessary”.’

83. It is important to remember that Grove J’s reference in the above passages was in the context of a claim for home modifications under s 59(g). That subsection is restricted to claims for modification of the worker’s home or vehicle directed by a medical practitioner ‘having regard to the nature of the worker’s incapacity’ (emphasis added). Apart from s 59(f), which deals with care (other than nursing care), there is no such restriction in the other subsections in s 59.

84.   In Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home, Burke CCJ, unreported, Compensation Court of NSW, 30 June 2003, Burke CCJ acknowledged (at [10]) that, contrary to Rose and Pelama, Clampett held that the word ‘reasonably’ was ‘effectively used as a diminutive and moderated the effects of the word ‘necessary’.
85.   The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68 per Gordon J (Besanko J agreeing)). Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
86.   Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87.   Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.

The respondent has not issued a s 74 notice disputing liability that tests to investigate mycoplasma and sterile pyuria result from the injury; nor that the proposed tests are not reasonably necessary medical and related treatment expenses as a result of injury.
Mr Hallmann concedes the respondent did not make a decision on his claim for sterile pyuria tests.
The respondent has provided submissions relying upon the opinion of Prof Wakefield to submit that there is no good evidence to indicate that mycoplasma infection is the cause of CFS and, accordingly, sterile pyuria testing is not part of the routine testing of patients with CFS.
The respondent further submits that sterile pyuria testing is not part of the routine testing of patients with CFS, and is not a feature of CFS, nor is the testing for mycoplasma infection.
Mr Hallmann relies upon the opinion of Dr Whiting in support of his claim that sterile pyuria tests are reasonably necessary as a result of his ME/CFS[199].
[199] reports of Dr Whiting dated 24 March 2013 – Application – pp 365-366, pp 376-377; dated 25 July 2013 – Application – 599; dated 29 August 2013 – Application – p 747-749; dated 25 May 2014 – Application – pp 730-733
Dr Whiting said that sterile pyuria is a common phenomenon amongst ME/CFS patients that attend his practice, which is largely ignored by other practitioners for reasons that he finds hard to understand or explain.
Dr Whiting said that Mr Hallmann:
“recently tested positive to purulence in the urine and I am currently investigating the potential existence of a bacterial infection. Once again this is potentially related to his compromised immune system and therefore potentially ME/CFS related.”[200]
[200] report of Dr Whiting dated 25 July 2013 – Application – p 599
Dr Whiting said that Mr Hallmann was found to have the objectively demonstrable abnormality of sterile pyuria in his urine microscopy examination, and that it is only natural for any intelligent clinician to try and explain the presence of this common finding of sterile pyuria in the setting of ME/CFS.
Dr Whiting said that in his view the urine tests he ordered were both reasonable and necessary[201]:
“… in the setting of ME/CFS. The tests are indirectly associated (emphasis not in original) with ME/CFS and were intended to identify issues that could impact the symptoms of ME/CFS.”
[201] report of Dr Whiting dated 25 May 2014 – Application – pp 730-733

Prof Wakefield said that it was not common in his practice of treating patients with CFS to have sterile pyuria and that the role of mycoplasma infection in the aetiology of CFS is controversial, and “there is no good scientific evidence to indicate that mycoplasma infection is the cause of chronic fatigue a chronic fatigue syndrome”[202].
[202] report of Prof Wakefield dated 30 September 2013 – Reply – p 464
Prof Wakefield also said that sterile pyuria test is not part of routine testing of patients with CFS. Prof Wakefield opined[203]:
“It is not appropriate that every test Mr Hallmann has is rationalised as being part of the management of his chronic fatigue syndrome. Sterile pyuria is not a feature of chronic fatigue syndrome nor is the testing for mycoplasma infection. The presence of sterile pyuria does warrant further investigations but it is not a common feature of chronic fatigue syndrome and is not the cause of chronic fatigue syndrome. It is not justified to attribute every abnormality that a patient with chronic fatigue syndrome has as being part of the underlying chronic fatigue syndrome.”
[203] supra – p 465
While Prof Wakefield said the presence of sterile pyuria warrants further investigation, in my view, his recommendation was made to treat the condition and not because it results from CFS.
I do not feel an actual persuasion of the existence of a fact that sterile pyuria results from ME/CFS or there is a causal nexus or link between it and the ME/CFS. The highest Dr Whiting could put the need for the stile pyuria tests at was: “the tests are indirectly associated with ME/CFS and were intended to identify issues that could impact the symptoms of ME/CFS”.
I am not satisfied on the balance of probabilities that the condition of sterile pyuria is as a result of the injury within the meaning of s 4 of the 1987 Act.
I am not satisfied on the balance of probabilities that the proposed sterile pyuria tests as recommended by Dr Whiting are reasonably necessary medical and related treatment with the meaning of s 60 of the 1987 Act.
I propose to make an order in favour of the respondent pursuant to s 60 of the 1987 Act that the proposed sterile pyuria tests are not reasonably necessary medical and related treatment as a result of injury.

Arch supports

The respondent has not issued a s 74 notice disputing liability for arch supports as a result of injury; nor that expenses incurred were not reasonably necessary as a result of injury.
The respondent has provided written submissions on the unnotified dispute of arch supports.
Mr Hallmann submits that he has suffered with severe Achilles pain since Ciproxin was prescribed to him by Dr Stewart in late 1999.
Mr Hallmann submits arch supports were prescribed by Dr Bird in or about 2004 as a result of his arches collapsing in 1999 as a consequence of the prescription antibiotic Ciproxin.
Mr Hallman relies upon the opinions of Drs Bird[204] and Whiting on the question of causation that the arch supports are reasonably necessary as a result of injury.
[204] reports of Dr Bird dated 8 March 2010 – Application – pp 42-43; dated 6 May 2013 – Application to Admit Late Documents filed by the applicant on 18 February 2015 – p 36; dated 25 May 2014; reports of Dr Whiting dated 6 March 2013 – Application – p 679; dated 24 March 2013 – Application – p 376, p 421 and p 466; dated 27 March 2013 – Application – pp 716-717; dated 25 May 2014 – Application – p 795; dated 26 Mary 2014 – pp 1298-1299; report dated 25 November 2014 – Application to Admit Late Documents filed by the applicant on 26 November 2014 – p 108; reports of Dr Watson dated 7 December 2012 – Application – p 75, 7 December 2012 – Application – p 226; 25 May 2014 – Application – pp 1344-1345, p 1389, p 1291
Dr Whiting said there is clear evidence that Mr Hallmann’s issues with respect to his feet, and in particular his heel arches, began in 2002 when his arches collapsed as a result of being prescribed antibiotic Ciproxen in late 1999 to address the issue of Mycoplasma fermentens infection.
Dr Whiting said that Mycoplasma fermentens infection is “well known to be resistant to macrolide antibiotics, and which is generally only encountered in patients with certain T cell related immune deficiencies”, and that there was a reaction to the antibiotic in the form of severe Achilles tendon pain.
Dr Whiting said the “condition [referring to the Achilles tendon pain, issues with the feet and heel arches] is work related (ie related to the original injury and/or treatment of the original injury)”, and that the provision of heel arches is reasonably necessary medical and related treatment as a result of his injury.
Dr Whiting said that Ciproxen was prescribed by Dr Stewart over a four week period in 1999, and “among the known side effects of this drug is the potential for the rupture of the Achilles’ tendon specifically, as well as problems with the tendons. The proximity of an exacerbation of Achilles symptoms at this time is not coincidential”.
The respondent relies upon the opinion of Prof Wakefield to dispute liability for the arch supports.
Prof Wakefield opined that heel arch supports may be of help for patients who have planta fasciitis or arthritis in their feet, but “this is not common in patients with chronic fatigue syndrome. Fibromyalgia usually does not involve the joints of the feet or require such therapy”[205].
[205] report of Prof Wakefield dated 30 September 2013 – Reply – p 466
I accept Dr Whiting’s opinion that Mr Hallmann had a severe reaction to Ciproxen in late 1999, and that a side effect of the prescribed medication is Achilles’ tendon pain resulting in issues with the feet requiring heel arches, however, the evidence does not establish on the balance of probabilities the causal link or nexus between the prescribed Ciproxen and the injury. Dr Whiting said the Ciproxen was “purportedly described [sic] to address alleged infections”, which, in my view, falls short of the requisite standard to establish that the need for heel arches results from the injury.
I proposed to make an award in favour of the respondent pursuant to s 60 of the 1987 Act that expenses incurred for the purchase of heel arches are not reasonably medical and related treatment as a result of the injury.

Sunglasses

I have determined the disputed issue of behavioural optometrist, which included sunglasses, in favour of Mr Hallmann, under the heading “Behavioural optometrist” above.

Toll fees

The respondent has not issued a s 74 notice disputing liability for toll fees incurred by Mr Hallmann when he travelled to Brisbane Airport from his home in the Northern Rivers Region for the purpose of consulting with Dr Watson in Townsville on 13 July 2011.
Mr Hallmann seeks an order that the respondent pay the toll fee of $47.31 plus interest incurred.
I propose to make an order in favour of Mr Hallman pursuant to s 60(2)(a) of the 1987 Act as the respondent said in its written submissions that it does not challenge the claim for toll fees as allowable travel expenses for reasonably necessary medical treatment.
In the exercise of my discretion, I make no order as to interest.

Unpaid 2010 expenses

The respondent has not issued a s 74 notice disputing Mr Hallmann’s claim made on 23 November 2010 for reimbursement of travel expenses, estimated to be $4,000, incurred for medical and related treatment as a result of the injury.
Mr Hallmann concedes the respondent has not issued a s 74 notice.
Mr Hallmann said that he provided receipts of his medical and related expenses to the respondent which he alleges CGU claims they were not received.
Mr Hallmann seeks an order that the respondent pay the medical and related treatment expenses in the amount of $4,000.
The respondent made no submissions in regard to the unpaid 2010 expenses but said it would not challenge Mr Hallmann’s claim if they related to reasonably necessary medical treatment.
While $4,000 is a substantial amount of money, it is as Mr Hallmann submitted an estimate only.
In those circumstances and as the respondent said it would not challenge Mr Hallmann’s claim if they related to reasonably necessary medical treatment as a result of injury, the best course of action is for Mr Hallmann to again render copies of the accounts and receipts to the respondent for reimbursement.
I make no order as to the unpaid 2010 claim.

SPECT scan

The respondent has not issued a s 74 notice disputing liability for payment of SPECT scans performed on 20 April 2012 and 14 February 2013; nor that the expenses incurred were not reasonably necessary as a result of the injury.
Mr Hallmann underwent a SPECT scan in 2003 at the request of Dr Bird which was reported upon by Drs Watson and Whiting showing cognitive abnormalities.
Mr Hallmann submits the SPECT scans are relevant to his diagnoses of orthostatic intolerance, his post-exertional malaise and cognitive issues.
Mr Hallmann relies upon the opinions of Dr Egerton-Vernon[206], who performed and reported upon the 2012 and 2013 SPECT scans, Dr Bird[207], Dr Watson[208], and Dr Whiting[209].
[206] reports of Dr Egerton-Vernon dated 22 April 2012 – Application – pp 592-493, dated 14 February 2013 – Application – pp – 590-591
[207] report of Dr Bird dated 6 May 2013 – Application to Admit Late Documents filed by the applicant on 6 May 2013 – p 1
[208] reports of Dr Watson dated 7 December 2012 – Application to Admit Late Documents filed by the applicant on 6 May 2013 – p 77, p 80 – Application – pp 82-83; dated 22 December 2012 – Application – p 263, p 290, p 300, p 301, p 303, p 306, p 309, p 311, p 314, p 317, p 320, p 336, pp 233- 234, p 311
[209] reports of Dr Whiting dated 24 March 2013 – Application – pp 432-436, p 438, pp355-356; dated 27 March 2013 – Application – p 765; dated 25 May 2014 – Application – 792, pp 798-799, pp 832-824, pp 918-927, p 935, p 940, pp 1015-1016; dated 26 May 2014 – Application – pp 1086-1203, pp 1204-1265; dated 25 November 2014 – Application – Application to Admit Late Documents filed by the applicant on 26 November 2014 – pp 171-172; dated 25 January 2015 – Application to Admit Late Documents field on 27 January 2015 – pp 490-50
Dr Whiting relies upon the 2003 Consensus Document[210] for the need to have the SPECT scans in 2012 and 2013.
[210] 2003 Consensus Document – p 80
The respondent accepts ME/CFS results in cognitive difficulty issues as found by Dr King, clinical psychologist in 1999/2000 and 2009, and qEEG scan in 2001 and the SPEC scan in 2001.
Dr Whiting said that the results of the SPEC scans in 2012 and 2013 show significant abnormalities and consistent with the detailed research that has occurred with respect to ME/CFS.
The respondent relies upon the opinion of Prof Wakefield that a SPECT scan is not a diagnostic test for CFS.
Prof Wakefield conceded the 2001 eEEG brain topography study showed abnormalities consistent with ME/CFS[211] but said they are not part of the diagnostic criteria for CFS.
[211] report of Prof Wakefield dated 30 September 2013 – Reply – p 455
While Prof Wakefield reported that the 2012 SPEC scan revealed “there was significant reduction in blood flow to the brain – “a finding consistent with patients with ME CFS”, he stated:
“This is not a diagnostic test for chronic fatigue syndrome and this finding should have lead to further investigations to ensure there was no other cause for a reduced blood blow to the brain.”

Prof Wakefield, in my view, has not considered if the 2012 SPEC scan was a reasonably necessary diagnostic test for ME; he seems to have confined his opinion to whether such investigation is a diagnostic test for CFS however acknowledged the scan revealed significant reduction in blood flow to the brain consistent with ME and CFS.
Dr Egerton-Vernon reported upon the 2012 SPECT scan revealing scintigraphic appearances markedly abnormal for a patient only 43 years of age, and that the 2013 SPECT scan showed the scintigaphic findings were still significantly abnormal.
I find that the 2012 SPECT scans were undertaken at the request of Dr Whiting as an important diagnostic test for Mr Hallmann’s cognitive issues resulting from his ME/CFS especially when the last SPECT scan was performed in 2003; and that it would be reasonably necessary to repeat the scan in 2013 because of the significant abnormality reported upon by Dr Egerton-Vernon before considering other investigations to ensure there was no other cause for the abnormality other than ME/CFS.
I am satisfied on the balance of probabilities that the 2012 and 2013 SPECT scans were reasonably necessary medical and related treatment within the meaning of s 60 of the 1987 Act.
I propose to make an order pursuant to s 60 of the 1987 Act that the respondent pay any outstanding cost or reimburse Mr Hallmann for the SPEC scans performed in 2013 and 2013.

Disability permit

The respondent has not issued a s 74 notice disputing liability for the payment of a disability permit.
Mr Hallmann submits he made a claim upon the respondent for reimbursement of the cost of a disability permit which allegedly was refused.
Mr Hallmann submits the disability permit is an artificial aid or a curative apparatus and therefore is a medical and related treatment expense as a result of his injury.
The respondent has elected to make no submissions in relation to this claim.
Mr Hallmann seeks an order that the respondent pay the cost of the disability permit in the sum of $36.
While Mr Hallmann has not referred to any medical certification or medical evidence that fulfils the requirement of the relevant statutory body for the issuing of a disability permit, I can take judicial notice that such permits are not issued unless a registered medical practitioner certifies the person’s disability to entitle him or her to such a permit.
However, it is necessary for Mr Hallmann to establish on the balance of probabilities that the issuing of a disability permit by the relevant statutory is reasonably necessary as a result of his injury.
I proposed to make no order in respect of the claim for the disability permit.

Airline and travel expenses

The respondent issued a notice pursuant to s 74 dated 12 March 2014.
The respondent made no submissions because Mr Hallmann acknowledges the disputed airline and travel expenses as particularised in the s 74 notice dated 12 March 2014 are not part of these proceedings.
I propose to make no order in respect of the category “Airline and Travel Expenses”.

Unpaid travel

The respondent issued no s 74 notice disputing liability for unpaid travel expenses incurred by Mr Hallmann for the purpose of consulting Dr Bird in Melbourne on 12 November 2012 after he had consulted the respondent’s independent medical expert (Prof Lloyd) in Sydney the previous day.
Mr Hallmann submits he made a claim for reimbursement of his travel expenses to attend upon Dr Bird, but it was allegedly refused.
Mr Hallmann submits the claim for his unpaid travel expenses to consult Dr Bird occurred prior to the declinature of liability upon the issuing of the s 74 notice dated 12 March 2014.
The respondent elected to make no submissions in relation to unpaid travel for the consultation with Dr Bird on 12 November 2012, submitting that it would not challenge Mr Hallmann’s claim if it related to reasonably necessary medical treatment.
I am satisfied on balance that Mr Hallmann consulted Dr Bird for treatment of his ME/CFS and FM on 12 November 2012, and that the airline expenses were incurred for that purpose.
I am satisfied on the balance of probabilities that the airline travel was incurred in relation to the flight from Sydney to Melbourne on 12 November 2012 for the purpose of consulting Dr Bird and the expense incurred were reasonably necessary medical and related treatment within the meaning of s 60 of the 1987 Act.
I therefore propose to make an order pursuant to s 60 of the 1987 Act that the respondent pay Mr Hallmann’s airline and travel expenses incurred in relation to his consultation with Dr Bird on 12 November 2012.
Mr Hallmann also seeks orders in respect of his claims for “Unpaid Upgrade Expenses” and for “flights, accommodation and travel to and from Brisbane”.
I propose not to make the orders sought by Mr Hallmann, except for the airline and travel expenses incurred for consulting Dr Bird on 12 November 2012, because the respondent has made no submissions; although acknowledging it will not challenge the claims if the travel is reasonably necessary as a result of injury.
Mr Hallmann should re-submit the claims with copies of invoices and receipts to the respondent.

Gastrointestinal

The respondent has not issued a s 74 notice disputing liability that the gastrointestinal digestive system is not the result of the injury; nor that the gastrointestinal treatment is not reasonably necessary medical and related treatment expenses as a result of injury.
Mr Hallmann submits he has had irritable bowel and gastrointestinal upset since the onset of his ME/CFS and FM, and that he received antibiotic therapy which has “impacted in the way of deterioration”.
Mr Hallmann submits CGU approved for him to see Dr Evans, gastroenterologist, on referral from Dr Whiting in 2010, and that it paid for an endoscopy performed in 2011.
Mr Hallmann submits his gastrointestinal problems continue to deteriorate, and he was diagnosed by Dr Evans with severe fat malabsorption and irritable bowel syndrome which is a consequence of ME/CFS.
Mr Hallmann submits he made a claim upon the respondent in the 2013 proceedings (Matter No. 5494/13 – proceedings dismissed by Arbitrator Stanton on 6 June 2014 pursuant to s 354(7) of the 1998 Act), conceding the respondent did not issue a s 74 notice for this claim.

The respondent has provided submissions in these proceedings disputing liability for the claim that the gastrointestinal condition is not as a result of the injury or a consequential condition resulting from the injury.
The respondent relies upon the opinion of Prof Wakefield that any problems with the digestive system, including gluten intolerance, is not a complication of CFS. Prof Wakefield opined[212]:
“Digestive system – gluten intolerance is not a complication of chronic fatigue syndrome.”
[212] report of Prof Wakefield dated 30 September 2013 – Reply – p 457
Mr Hallmann relies upon the opinions of Drs Bird, Watson and Whiting[213] in support of his submission of the causal nexus or link between his gastrointestinal digestive system problems and the ME/CFS resulting from the injury.
[213] report of Dr Bird dated 8 March 2010 – Application – p 16, pp 35-36; reports of Dr Watson dated 7 December 2012 – Application – p[p 86-87, dated 22 December 2012 – Application – p 140, pp 144-145; 25 May 2014 – Application – p 1234, pp 1325-1326; reports of Dr Whiting dated 6 March 2013 – Application to Admit Late Documents filed by the applicant on 9 October 2014 – pp 109-110; 24 March 2014 – pp 449-450, p 451; 27 March 2013 – Application – pp 709-710; dated 25 May 2014 – Application – p 776, pp 815-816, pp 843-844, p 1108; 26 May 2014 – Application to Admit Late Documents filed by the applicant on 27 January 2015 – pp 51-52; 25 January 2015 - Application to Admit Late Documents filed by the applicant on 26 January 2015 – p 22, pp 95-96
I accept Mr Hallmann’s evidence that he has suffered with bowel and digestive system problems over the years as recorded Dr Birds, Watson and Whiting in their respective reports as set out in footnote 214.
Dr Watson’s opinion is that the diagnosed irritable bowel syndrome is a “major feature of ME/CFS” which has been noted in medical literature and recognised from the various criteria for the diagnosis of ME/CFS[214]; noting that Mr Hallmann had no symptoms of irritable bowel prior to contraction of the ME/CFS.
[214] report of Dr Watson dated 7 December 2012 – Application – pp 86-87
Dr Watson said that the digestive system is impacted by gluten intolerance and irritable bowel syndrome[215], and that bowel dysfunction due to gluten intolerance and irritable bowel syndrome “arising from MCE/CFS[216]”.
[215] report of Dr Watson dated 22 December 2012 – Application – p 140
[216] supra p- pp 144-145
Dr Whiting said that the gluten intolerance was diagnosed in 2000 and 2001, and that in his experience with his patient population, “allergies are a common corollary of ME/CFS”[217] supported by medical literature.
[217] report of Dr Whiting dated 24 March 2013 – Application – p 449
Dr Whiting also opined that the symptoms of irritable bowel syndrome “are common in ME/CFS”[218].
[218] supra – p 451
Dr Whiting reported upon the findings of Dr Evans that Mr Hallmann has a definite fat malabsorption (the defective uptake and transport of adequately digested nutrients, including vitamins and trace elements)[219], which will cause weight gain[220], and relates to ME/CFS[221].
[219] report of Dr Whiting dated 25 May 2014 – Application – p 843-844
[220] supra – pp 709-170
[221] report of Dr Whiting dated 25 May 2014 – Application – pp 815-816
Dr Whiting said there is a clear history of neurological and autonomic disturbances with Mr Hallmann and that “such disturbances are known to impact upon the function of the digestive system”[222].
[222] Report of Dr Whiting dated 26 May 2014 – Application to Admit Late Documents filed by the applicant on 27 January 2015 – pp 51-52
Dr Whiting opined that the causation of fat malabsorption is ME/CFS. He said[223]:
“Mr. Hallmann has malabsorption. This is a result of his ME/CFS, particularly the HPA Axis issues and their impact upon pancreatic function. Even if this were not the case it would impact upon the ME/CFS, causing deterioration of the symptoms. Any investigations and treatment with respect to gastrointestinal symptoms are a reasonable and necessary and related to the ME/CFS being the underlying compensable injury.”
[223] report of Dr Whiting dated 25 May 2014 – Application – p 844
While Prof Wakefield opined that gluten intolerance is probably not an allergy but the result of either chemical or other biochemical interaction between wheat produces, such as gluten and the gastrointestinal mucosa[224], he said:
“Gastrointestinal problems associated with chronic fatigue syndrome mainly related to irritable bowel syndrome which has shown to be clinically associated with chronic fatigue syndrome.”
[224] report of Prof Wakefield dated 24 November 2014 – Application to Admit Late Documents filed by the respondent on 8 December 2014 – p 10
Prof Wakefield provided no reasons for his conclusion that the digestive system is not a complication of CFS, nor did he consider if the antibiotic therapy given to Mr Hallmann over several years for treatment of his ME/CFS condition could result in gastrointestinal problems as claimed by Mr Hallmann or the causation of the fat malabsorption as a result of the injury.
Prof Wakefield’s opinion that gastrointestinal problems are associated with CFS and mainly relate to irritable bowel syndrome accords with the opinions of Drs Whiting and Watson.
I am satisfied on the balance of probabilities of the causal nexus or causal link between the irritable bowel syndrome and the problems with the gastrointestinal digestive and the ME/CFS.
I find that the gastrointestinal digestive system problems results from the injury within the meaning of s 4 of the 1987 Act.
Mr Hallmann seeks an order that the respondent reimburse him in the amount of $2,090.50 and Medicare in the amount of $1,129.20 plus interest.
I propose to make an order that the respondent pursuant to s 60 of the 1987 Act pay the medical and related treatment expenses incurred by Mr Hallmann for gastroenterological investigations.
In the exercise of my discretion, I make no order as to interest.

Unpaid taxi expenses

I propose to make no order in respect of this previously unnotified issue of unpaid taxi fares because the respondent has not issued a s 74 notice and has made no submissions but concedes it would not challenge Mr Hallmann’s claims for unpaid travel if it related to reasonably necessary medical treatment.
Mr Hallmann should re-submit the claims for unpaid travel to the respondent supported by copies of invoices and receipts.

Blood tests

The respondent has not issued a s 74 notice disputing liability for the claim for the cost of blood tests carried out from 12 April 2010 to June 2014 as claimed by Mr Hallmann.
The respondent has provided submissions on this unnotified dispute issue, submitting that while Prof Wakefield acknowledges that pathology testing is necessary to exclude alternative diagnosis in patients suffering with CFS he is of the opinion that Mr Hallmann has been subjected to a number of expensive and experimental testing that does not substantiate the diagnosis of CFS or FM.
The respondent submits that any ongoing blood tests are not reasonably necessary as a result of the injury because ME/CFS and FM has been diagnosed.
The respondent submits Prof Wakefield’s opinion is supported by the Approved Medical Specialist that once the condition of ME/CFS was established, further and ongoing blood testing is not warranted.
The respondent made no submissions that the cost of the blood tests performed upon the recommendation of Drs Bird, Watson and Whiting[225] incurred during the period of the claim from 12 April 2010 to June 2014 were not reasonably necessary as a result of the injury.
[225] report of Dr Watson dated 7 December 2012 – Application – p 98, pp 108-109; report of Dr Whiting dated 25 May 2014 – Application – pp 801-804
I accept the opinions of Drs Bird, Watson and Whiting that the need for blood tests during the period of the claim from 12 April 2010 to June 2014 were reasonably necessary to investigate the various conditions resulting from the ME/CFS, and that such tests were reasonably necessary within the meaning of s 60 of the 1987 Act.
I am satisfied on the balance of probabilities that the blood tests undertaken during the period of the claim from 12 April 2010 to June 2014 were reasonably necessary medical and related treatment within the meaning of s 60 of the 1987 Act.
Mr Hallmann seeks an order that the respondent pay the amounts identified in the Medicare notice of charge relating to blood tests.
I proposed to make an order that the respondent pursuant to s 60 of the 1987 Act pay the cost of blood tests undertaken during the period 12 April 2010 to June 2014.

Unpaid Medicare expenses

Mr Hallmann alleges the respondent has not paid medical and related treatment expenses particularised in a Notice of Charge issued by the Health Insurance Commission in 2015 relating to the period 2004 to 2007, which was the subject of orders issued by the Commission in previous proceedings.
Mr Hallmann submits the respondent should be ordered to pay the Notice of Charge issued by the Health Insurance Commission in 2015 for the medical expenses for the period 2004 to 2007, and that the respondent should be reported to the Authority for its failure to comply with the orders of the Commission.
Any dispute as to non-payment of orders can be taken up by Mr Hallmann with the Authority because the Commission does not have the jurisdiction to make the orders he seeks.
Mr Hallmann can commence proceedings in the District Court against the respondent for recovery of any outstanding unpaid medical and related treatment expenses, the subject of orders made by the Commission.
The respondent submits that any reasonably incurred medical expenses met by Medicare will be paid.
Mr Hallmann should take the issue of the Health Insurance Charge up with the respondent and the Authority.

Cardiac investigations

The disputed issues of cardiac investigation and pathology tests have been dealt with at paragraphs 124 top 173 in this Statement of Reasons.
I found that I was satisfied on the balance of probabilities that it was necessary for Mr Hallmann to undergo cardiac investigations as recommended by his nominated treating doctor and cardiologist because of the risk of development of heart disease resulting from his ME/CFS as opined by Drs Watson, Whiting and Prof Wakefield.
I also found that any proposed cardiac investigation as recommended by the nominated treating doctor and cardiologist is reasonably necessary as a result of injury within the meaning of s 60(5) of the 1987 Act, and in accordance with the principles in Bielecki, Rose, Bartolo and Diab.

[2023] NSWPIC 455

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