Holmes v Goodstart Early Learning Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Holmes v Goodstart Early Learning Ltd [2023] NSWPIC 365
APPLICANT:	Paris Elizabeth Holmes
RESPONDENT:	Goodstart Early Learning Limited
Member:	Anthony Scarcella
DATE OF DECISION:	24 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether a proposed biopsychosocial program for the applicant’s work-related primary psychological injury was one of the medical or related treatment types defined in section 59, namely, therapeutic treatment given by direction of a medical practitioner; if so, whether the program was reasonably necessary treatment as a result of the injury sustained by the applicant in the course of her employment with the respondent within the meaning of section 60; Western Suburbs Leagues Club Illawarra Ltd v Everill, Bartolo v Western Sydney Area Health Service, Rose v Health Commission (NSW), Woollahra Council v Beck, State of New South Wales (Central Coast Local Health District) v Bunce, Kooragang Cement Pty Ltd v Bates, Murphy v Allity Management Services Pty Ltd, and Diab v NRMA Ltd considered and applied; Held – the proposed social rehabilitation service known as the My Social Support Network biopsychosocial program is one of the medical or related treatment types defined in section 59, namely, therapeutic treatment given by direction of a medical practitioner; the proposed social rehabilitation service known as the My Social Support Network biopsychosocial program is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of her employment with the respondent on 10 February 2020 within the meaning of section 60; the respondent is to pay for the costs of and ancillary to the proposed social rehabilitation service known as the My Social Support Network biopsychosocial program.
determinations made:	The Commission determines: 1. The social rehabilitation service known as the My Social Support Network biopsychosocial program proposed by Dr Ben Dickson and Dr Caroline Howe is one of the medical or related treatment types defined in s 59 of the Workers Compensation Act 1987, namely, therapeutic treatment given by direction of a medical practitioner. 2. The social rehabilitation service known as the My Social Support Network biopsychosocial program proposed by Dr Ben Dickson and Dr Caroline Howe is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of her employment with the respondent on 10 February 2020 within the meaning of s 60 of the Workers Compensation Act 1987. The Commission orders: 3. The respondent is to pay for the costs of and ancillary to the social rehabilitation service known as the My Social Support Network biopsychosocial program proposed by Dr Ben Dickson and Dr Caroline Howe.

STATEMENT OF REASONS

BACKGROUND

The applicant, Ms Paris Elizabeth Holmes, is a 22-year-old woman who was employed by the respondent, Goodstart Early Learning Limited (Goodstart), as a trainee educator.
Ms Holmes alleges that she sustained a primary psychological injury arising out of or in the course of her employment with Goodstart deemed to have occurred on 10 February 2020, being her last day of work with Goodstart.
Ms Holmes lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).
Ms Holmes’ primary psychological injury is not in dispute. On 18 March 2021, Member Rachel Homan in the Workers Compensation Division of the Personal Injury Commission (Commission) determined that Ms Holmes had sustained a psychological injury within the meaning of ss 4(b)(ii) and 11A(3) of the 1987 Act in the course of her employment with Goodstart; that employment was the main contributing factor to the injury; that Goodstart had failed to discharge its onus of establishing that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal and/or discipline under s 11A of the 1987 Act; and that Ms Holmes had no current work capacity as a result of the injury from 10 February 2020 to 8 August 2020.
On 17 November 2022, Dr Ben Dickson, general practitioner, referred Ms Holmes to Dr Caroline Howe of My Social Support Network to undergo that organisation’s biopsychosocial program[1]. On 17 November 2022, both Dr Dickson and Dr Howe requested approval from AAI Limited (GIO), acting as the agent of NSW Self Insurance Corporation (icare), for Ms Holmes to undergo the program.[2]
[1] Application to Resolve a Dispute at page 120.
[2] Application to Resolve a Dispute at pages 121-125.
On 28 November 2022, GIO issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing that the proposed My Social Support Network biopsychosocial program is one of the types of medical or related treatment listed in s 59 of the 1987 Act and disputing that such treatment is reasonably necessary as a result of injury within the meaning of s 60 of the 1987 Act.[3]
[3] Application to Resolve a Dispute at pages 86-89.
On 13 January 2023, Ms Holmes, through her lawyers, requested a review of the decision contained in GIO’s dispute notice dated 28 November 2022 under s 287A of the 1998 Act.[4]
[4] Application to Resolve a Dispute at page 95.
On 31 January 2023, GIO issued the outcome of its review under s 287A of the 1998 Act maintaining its decision to deny liability for the proposed biopsychosocial program.[5]
[5] Application to Resolve a Dispute at pages 97-100.
Ms Holmes, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 11 April 2023 in the Commission seeking an order that Goodstart pay for the cost of the proposed My Social Support Network biopsychosocial program.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the social rehabilitation service known as the My Social Support Network biopsychosocial program proposed by Dr Ben Dickson and Dr Caroline Howe is one of the medical or related treatment types defined in s 59 of the 1987 Act, and if so
(b) whether the social rehabilitation service known as the My Social Support Network biopsychosocial program proposed by Dr Ben Dickson and Dr Caroline Howe is reasonably necessary treatment as a result of the injury sustained by Ms Holmes on 10 February 2020 within the meaning of s 60 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing via MS Teams on 6 June 2023. Mr Josh Beran of counsel appeared for Ms Holmes, instructed by Mr Ivica Covic, solicitor and Mr Fraser Doak of counsel appeared for Goodstart, instructed by Mr Tim Ainsworth, solicitor.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD dated 11 April 2023 and attached documents;
(b)    Application to Admit Late Documents (AALD) lodged by Ms Holmes dated 3 May 2023 and attached documents;
(c)    AALD lodged by Goodstart dated 11 May 2023 and attached documents, including the Reply to ARD;
(d)    AALD lodged by Goodstart dated 1 June 2023 and attached documents;
(e)    State Insurance Regulatory Authority (SIRA) directions to health professionals provided electronically at the arbitration hearing without objection, and
(f)    Clinical Framework for the Delivery of Health Services issued by WorkSafe Victoria provided electronically at the arbitration hearing without objection.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Paris Elizabeth Holmes’ evidence

In evidence there are statements by Ms Holmes dated 5 May 2022 and 11 April 2023. I will now refer to the parts of those statements that are relevant to this dispute.
Ms Holmes stated that she began working with Goodstart as a full-time trainee educator on 8 July 2019. Prior to working with Goodstart she worked at McDonald’s for over one year.
Ms Holmes stated that whilst employed with Goodstart she sustained psychological injuries as a result of ongoing bullying, harassment and intimidation. As a result, she has been unable to work since 10 February 2020.
Ms Holmes stated that she consulted her general practitioner in respect of her psychological condition. She underwent sessions with the youth access clinician at Headspace in Brookvale for over a year. She consulted Ms Nell Zandberg, psychologist, in about July 2021 and underwent about five telehealth sessions and one in-person session. As at 5 May 2022, she was undergoing monthly telehealth consultations with Dr Jon Levenston, general practitioner, at South Steyne Manly Medical Practice. She first consulted Dr Christopher Cocks, psychiatrist, in February 2022.
Ms Holmes stated that following her proceedings in the Commission in 2021, she came under the care of practitioners at Workers Doctors. She really wanted to get proper treatment to manage her condition. Workers Doctors have been supportive and have provided her with the treatment she needs. In this regard, she undergoes fortnightly consultations with Dr Ben Dickson, general practitioner, of Workers Doctors and fortnightly consultations with Stephanie (Falero), psychologist, of Workers Doctors.
Ms Holmes stated that she ceased consulting Dr Cocks because she no longer felt comfortable or safe seeing him. Dr Cocks accused her of not seeking further medical help and concluded that her psychological symptoms were a result of other contributing factors that did not relate to the present claim. She felt betrayed by Dr Cocks. Dr Cocks insisted that she take a higher dose of medication. She refused initially because it scared her.
Ms Holmes stated that, on 17 November 2022, Dr Dickson referred her to Dr Caroline Howe of My Social Support Network for a social therapy program. GIO disputed liability for the proposed social therapy program.
Ms Holmes stated that she continued to experience psychological symptoms including anxiety, depression and panic attacks. Daily tasks require a significant amount of prompting and she struggles to keep up with personal hygiene. She fears her surroundings outside of her own home and she can never be without a support person within arm’s reach. She is fearful of who she might see in public and has a fear of anyone in a position of power. She struggles to accept that she is no longer the girl she was before her trauma and that the life she had was now gone. She rarely sees her friends and rarely communicates. She fears re-joining the workforce.
Ms Holmes stated that she currently medicates with 20mg of Lexapro, presumably, on a daily basis.
Ms Holmes described her current symptoms as anxiety; depression; low mood; stress; loss of appetite; weight loss; panic attacks; anxious ruminations; nausea; fatigue; low motivation; low energy; low self-esteem; sleep disturbance; loss of enjoyment in participating in activities; social withdrawal; social isolation; irritability; poor concentration; forgetfulness; short attention span; impaired memory; loss of self-confidence; loss of self-identity; loss of trust in interpersonal relationships; and total incapacity for employment.
Ms Holmes stated that she relies heavily on her mother, who is her primary caregiver as well as her sister and father, who assist her with day-to-day life, including domestic tasks. She believes that she still requires ongoing treatment because her symptoms are very severe.
In respect of the proposed social therapy program, Ms Holmes stated:
“I would really like to participate in the social therapy program with My Social Support Network. My treatment providers want to focus on getting my condition stabilised, and I feel that this program will assist me with managing my psychological distress, depression, and anxiety. I spoke with Dr Caroline Howe about the Social Support Program in December of 2022, but have yet to receive funding for the program. Dr Howe was very understanding of my condition, and I felt reassured that I would be welcomed into a safe space, to help with the progression of my treatment. I believe that this network will benefit me because it is an online virtual space. I will not need to leave my house, and this will make it far easier for me to work on my condition through small steps, such as, building a routine, setting personal goals, attempting to regain life skills, and re-establish social connections through interaction.”[6]
[6] ARD at page 4 at [18].

The treating medical evidence

Ms Holmes first consulted Dr Levenston, general practitioner, in respect of her work-related psychological injury on 6 April 2020. Dr Levenston noted that Ms Holmes had already undergone four consultations with a psychologist at Headspace. Dr Levenston also noted that Ms Holmes had a “past history of stress at school years ago”. [7]
[7] ARD at page 271.
On 12 April 2021, Dr Levenston referred Ms Holmes to Ms Diane Clark, psychologist, for the review and care of Ms Holmes’ current depression and anxiety.[8] There are no reports or clinical records from Ms Clark in respect of Ms Holmes in evidence.
[8] ARD at page 111.
On 10 June 2021, Dr Levenston referred Ms Holmes to Mr Nell Zandberg, clinical and consulting psychologist, for opinion and management in respect of her anxiety and stress as a consequence of bullying at work.[9]
[9] ARD at page 112.
On 23 June 2021, Mr Zandberg opined that Ms Holmes was suffering from severe depression and anxiety and that she had many of the signs and symptoms of post-traumatic stress disorder stemming from a series of targeted bullying incidents by the director of the childcare centre at which she was employed. He further opined that Ms Holmes was in serious need of psychological assistance to try and start to live a normal life of a 21-year-old. He recommended psychiatric review of her case to ensure that she was on the correct medication for her symptoms.[10]
[10] ARD at page 166.
On 13 December 2021, Dr Levenston referred Ms Holmes to Dr Christopher Cocks, general adult and forensic psychiatrist, for opinion and management in respect of her severe anxiety following issues at work and marginal progress thereafter.[11]
[11] ARD page 113.
On 21 February 2022, Dr Cocks reported to Dr Levenston that he had assessed Ms Holmes that day.[12] Dr Cocks provided a provisional diagnosis of major depressive disorder and recommended the following management plan:
(a)    increase escitalopram to 30mg each morning;
(b)    ongoing individual psychological therapy on a fortnightly basis;
(c)    consideration of treatment through a group therapy program run through an outpatient private psychiatric clinic such as that at Northern Beaches Hospital or at Ramsey Clinic Northside;
(d)    maintenance of sleep hygiene strategies and an exercise routine, and
(e)    that she follow up with him within one month.
[12] ARD at pages 153-155.
Dr Cocks opined:
“In my opinion, Paris meets the criteria for major depressive disorder. In my opinion, she has suffered a depressive illness in the context of her work at the early childhood centre at Cromer. In a woman with no pre-morbid history of mental illness she has suffered a severe and functionally debilitating psychological injury secondary to her work at the early learning centre. The loss of her identity and sense of self-worth is profound and she is now questioning her work capacity moving forward.
In my opinion, Paris remains unfit to return to the workforce, the focus should be optimising her mental health moving forward. …”[13]
[13] ARD at page 155.
On 11 August 2022, Dr Cocks reported to Dr Levenston confirming that he had first assessed Ms Holmes on 21 February 2022 and formed the opinion that she met the criteria for a major depressive disorder in the context of her work at an early childhood centre.[14] Dr Cocks reported that he had subsequently assessed Ms Holmes on two further occasions and remained of the view that she suffers significant depressive symptoms. He noted that she was no longer taking antidepressant medications, nor was she engaging in psychological therapy.
[14] ARD at pages 151-152.
Dr Cocks reported that Ms Holmes stated that her mood continues to fluctuate; she socially isolates; she struggles with fatigue; her sleep pattern is impaired and disturbed; and she rarely leaves the family home.
Dr Cocks expressed his concern about Ms Holmes’ progress. He opined that she had displayed an extraordinary reaction to the work-related stress that she suffered and had experienced limited improvement in her mental health over a significant period of time. He wondered about pre-existing vulnerabilities contributing to her current presentation. Based on his clinical experience, he opined that Ms Holmes’ response to the trauma she suffered at work reflected a degree of abnormal illness behaviour. He observed that she was resistant to addressing any issues that might pre-date her employment at the childcare centre. She was fixated on her belief that her employment at the childcare centre was the sole cause of her mental health related difficulties. He noted that Ms Holmes had disengaged from all forms of treatment and remained significantly impaired.
In conclusion, Dr Cocks opined:
“In my opinion Paris needs to engage in treatment to optimise her mental her mental [sic] health. Psychological therapy is crucial to the progress of Paris’ recovery. In my opinion there should be an exploration around potential non-work-related factors that might be contributing to her persistent impairment.
I am open to continuing to be involved in Paris’ care. I have advised her today that she will need to book into see me and that the process of ongoing treatment under my care is an active process on her part and not a passive one. I write to you today to express my concerns about Paris’ treatment because I fear that the WorkCover process has been counter-productive to her recovery as she remains on claim and is making limited improvement.”[15]
[15] ARD at page 152.
On 6 October 2022, Dr Eric Lim, general practitioner, of Workers Doctors reported to Walker Law Group (Ms Holmes’ lawyers) and GIO.[16] Dr Lim reported that Ms Holmes initially consulted him on 6 October 2022. Dr Lim’s diagnosis was one of a major depressive disorder and generalised anxiety disorder. He took a history of injury that was consistent with the evidence. He described Ms Holmes’ symptomology as depressed; anxious; stressed; loss of appetite; panic attacks; nausea; difficulty sleeping; fatigue; low motivation; and low self-esteem. Dr Lim certified Ms Holmes as unfit for work.
[16] ARD at pages 114-115.
In respect of causation, Dr Lim opined that Ms Holmes sustained a psychological injury from the workplace where she was bullied and targeted by her manager. He opined that work was the main contributing factor to her injury.
In respect of prognosis, Dr Lim observed that Ms Holmes experienced anxious and depressive cognition that impaired her psychological condition for work. He noted that Ms Holmes felt that her previous care was disjointed, with her psychiatrist accusing her of not having treatment because she had a gap in treatment when her condition deteriorated. He noted that she described her general practitioner, psychologist and psychiatrist as not being in regular communication and that this could have explained her disjointed treatment.

On 6 October 2022, Dr Lim referred Ms Holmes to Mr Carl Nielsen, psychologist, of Insightfulmind.
On 28 October 2022, Mr Nielsen reported to Ms Holmes’ lawyers and GIO.[17] Mr Nielsen took a history that was consistent with the evidence. He diagnosed Ms Holmes with a major depressive disorder/generalised anxiety disorder. However, later in his report, he diagnosed an adjustment disorder with depressed and anxious mood due to her work related injury, where her employment was the main contributing factor.
[17] ARD at pages 117-119.
Mr Nielsen described the issues affecting Ms Holmes’ return to work as loss of confidence in her ability to perform work duties; fatigue; poor concentration; diminished stress tolerance from sleep disturbance; anxious distress; loss of trust in the working environment and with people generally; and avoidance of social interactions.
Mr Nielsen’s treatment recommendations included cognitive and behavioural therapy, motivational interviewing and exposure therapy. The benefits of such treatment were to assist with increasing activity of daily living functioning and pace; the reduction of symptom severity; a return to work; and to move to self-management of her condition.
On 17 November 2022, Dr Dickson, general practitioner, of Workers Doctors referred Ms Holmes to My Social Support Network for a social support program.[18] Copied into the social therapy referral were Ms Holmes’ lawyers and GIO.
[18] ARD at page 120.
Dr Dickson’s social therapy referral was couched in the following terms:
“Herewith Ms Paris Elizabeth Holmes who has depressive and anxious symptoms as a result of workplace injury. Is very anxious and socially withdrawn with ADL difficulties. Would benefit from your program.”[19]
[19] ARD at page 120.
In the social therapy referral, Dr Dickson noted Ms Holmes’ current medication as Lexapro 20mg tablets each morning.
On 17 November 2022, Dr Caroline Howe, rehabilitation counsellor and psychologist, of My Social Support Network addressed a request for service approval to GIO.[20] The request for service approval confirmed the referral by Dr Dickson.
[20] ARD at pages 121-125.
Dr Howe explained that the service included access to a social group to reduce the impact of social isolation for injured workers and was intended to help, prevent or reduce the potential long-term psychological impact of worker injury. There would be an initial intake assessment for their social support and personal development groups together with an activities of daily living assessment. Following the intake assessment, a meeting with Ms Holmes would take place and an assessment would be made as to the current level of risk of recovery based on the current level of biopsychosocial well-being domains being negatively impacted by her psychological, social and physical factors. The cost of the initial consultation, assessment and brief report together with the activity of daily living assessment was quoted at $2,350.04.
On 22 December 2022, Dr Howe provided a report at the request of Ms Holmes’ lawyers.[21] Dr Howe reported that she had interviewed Ms Holmes on 22 December 2022 and had reviewed the documents provided to her. Dr Howe took a history that was consistent with the evidence. Ms Holmes provided Dr Howe with a detailed list of symptoms and restrictions that were consistent with the former’s evidence.[22]
[21] ARD at pages 126-135.
[22] ARD pages 126-127.
Ms Holmes was administered the Ability Assessment Index for Psychological Impairment (ARI-PI) by Dr Howe. Dr Howe explained that ARI-PI is an assessment tool used to obtain an objective measurement of key personal psychosocial factors that are likely to influence an individual’s rehabilitation. The ARI-PI is known to capture biopsychosocial elements that correlate with reduced independence and participation specific to psychological impact of injury. Ms Holmes’ responses indicated a high risk of delayed recovery with potential for persistent disability. Further, Ms Holmes’ depression, anxiety and stress scale – 21 items (DASS 21) scores were extremely severe in each category.
Dr Howe opined that social support plays a complex, yet key, role to an individual’s recovery from injury. She stated that research suggested that injured workers experienced social relationship breakdowns. Prolonged absences from work can also restrict a person’s ability to access or engage in activities which further increased the risk of social isolation. Dr Howe stated that building personal resources to support a return to work is critical for successful improvement in psychological and physical outcomes that can lead to successful return to community and work outcomes. People who have become isolated through work injury require support to re-engage with activities that can improve social support, reduce social isolation and lead to better mental and physical health.
Dr Howe noted that Ms Holmes reported experiencing social isolation; having a limited social network; and being impacted by the long-term nature of the work injury due to the ongoing isolation from normal conversations and interactions.
Dr Howe opined that My Social Support Network programs offered social support, social inclusion and the reduction of loneliness for injured workers through a stepped care capacity building program. The network includes access to supportive group programs as well as individualised support and goal setting. It offers an online platform and online groups via Zoom that is accessible 24/7 to allow isolated people the opportunity to interact in a way that is within their control. Group programs focus on personal development, social engagement as well as specialised job placement support.
Dr Howe opined:
“Given the current situation that Ms Holmes is in, it seems reasonable and necessary that allowing her to have access to programs specifically designed to improve social function as part of a biopsychosocial approach is likely to improve poor mental health in relation to her reporting being anxious and unable to participate in normal activities outside of the home. In turn the biopsychosocial personal development program would also be reasonable and necessary to allow her to access information in a socially supported way to improve her mental health that can lead to a return to community and work-related activities.”[23]
[23] ARD at pages 130-131.
In respect of the appropriateness of the proposed biopsychosocial program and its benefits, Dr Howe stated that the My Social Support Network biopsychosocial program had been endorsed by SIRA and led to My Social Support Network being awarded a New South Wales provider number in 2022. It is the only rehabilitation provider in New South Wales in the job placement specialisation category for people with psychological primary or secondary injuries.
Dr Howe set out in detail the purposes of the 12 week social and group program as well as the eight week personal development group coaching program.[24]
[24] ARD at pages 131-132.
In respect of the availability of alternative treatment, Dr Howe stated that, to date, there is no known treatment alternative specifically designed for the social isolation and related barriers caused by long-term injury or long-term primary or secondary psychological injury.
In respect of the actual or potential effectiveness of the biopsychosocial program, Dr Howe stated that the research evidence suggested that a structured biopsychosocial approach delivered strong health and work outcomes. She then outlined the supportive research outcomes in this regard. The use of the biopsychosocial approach with members had seen improvements in quality of life, connection with community, upgrades in capacity as well as return to work for long-term injured people.
In respect of the acceptance by medical experts of the biopsychosocial program being appropriate, Dr Howe stated that the New South Wales workers compensation scheme is built on a biopsychosocial model of care. There have not been any specific programs available to date that are able to deliver on the social component of this SIRA approved model to injured workers.
Dr Howe stated:
“Finally, it is essential to understand what job seekers need to do to produce reemployment outcomes. Job search behaviours are driven by the initiative of the individual. Proactive individuals actively explore job opportunities and engage in active job search activities (eg: networking). Research has shown that individuals seeking employment may do so through their social connection however, there are two aspects of quality social interactions that need to be considered:
1.Networking self-efficacy: an individual self-assessment and confidence in their engagement and networking capabilities.
2.Proximal networking benefits: the immediate value achieved from engagement (eg: working).
In the case of Ms Holmes she has reported feeling isolated from people since the injury. Research shows that without the opportunity to re-engage in social situations, Ms Holmes’ ability to develop any sense of self-efficacy, set goals and be offered the opportunity to network is compromised.”[25]
[25] ARD at pages 134-135.
The cost of the proposed My Social Support Network biopsychosocial program was particularised as follows:

Intake assessment including case conference

$450.00

Onboarding onto MSSN platform; individual introduction session to ensure technical aspects of the program

$330.00

12-week Social Therapy Program

$1,950.00

8-week Personal Development Program

$1,500.00

Program Diary

a) Hard copy personal development modules

b) Daily Goal Planner

$110.00

Reports x 1 at the end of each program including individual interview - $16.40 (+GST) /5 minutes (maximum 1 hour)

$196.80 each

Case conferences - $16.40 (+GST) /5 minutes (maximum 1 hour)

$196.80 each

Total

$4,723.60 (excluding GST)

The forensic medical evidence

Dr Abdal Khan: 16 December 2021

On 15 December 2021, Ms Holmes consulted Dr Abdal Khan, consultant psychiatrist, at the request of her lawyers. In evidence, there are two reports by Dr Khan dated 16 December 2021.[26] I will now refer to the relevant parts of those reports.
[26] ARD at pages 101-110.
Dr Khan took a detailed history from Ms Holmes that was consistent with the evidence.
On mental state examination, Dr Khan observed that Ms Holmes appeared unkempt; there was no evidence of psychomotor disturbance; mood was described in anxious terms; affect was congruent; there were no abnormalities of speech or thought form; thought content comprised pervasive depressive and anxious cognitions; there were no acute risk issues; cognition demonstrated evidence of impairment in attention, concentration and memory; and there was appropriate insight and judgment.
Dr Khan’s diagnosis was one of major depressive disorder and generalised anxiety disorder in accordance with the DSM-5 diagnostic criteria.
Dr Khan opined that Ms Holmes’ employment with Goodstart continued to be the main contributing factor to her current psychiatric/psychological condition. Ms Holmes’ primary psychiatric/psychological injury resulted in the development of a major depressive disorder and generalised anxiety disorder, which in turn have negatively impacted on her mood regulation, motivation, energy, attention, concentration, memory, self-confidence, self-esteem, self-identity and trust in interpersonal relationships.
Dr Khan recommended the following treatment as reasonably necessary for the ongoing management of Ms Holmes’ psychiatric/psychological conditions:
(a)    regular follow-up with a general practitioner at a frequency of every four weeks for, at least, a further two years for counselling;
(b)    regular follow-up with a psychologist at a frequency of every two weeks for, at least, a further two years for psychological therapy;
(c)    consideration of referral and regular follow-up with a psychiatrist at a frequency of every four to six weeks for, at least, one year for review of her mental state and psychotropic medications;
(d)    ongoing long-term adherence with psychotropic medications as prescribed;
(e)    in patient private psychiatric hospital admissions to a mood/anxiety specialist unit, as determined by her treating team, for stabilisation of her mental state, and
(f)    day patient private psychiatric hospital mood/anxiety programs for weekly group psychotherapy for, at least, six months.
Dr Khan opined that Ms Holmes’ prognosis was guarded, in that, she continued to suffer from pervasive symptoms of depression and anxiety, which have had a profoundly negative impact on her social, occupational and other important areas of functioning.
Dr Khan assessed Ms Holmes’ whole person impairment at 24%.

Dr Yajuvendra Bisht: 27 March 2023

On 8 March 2023, Ms Holmes consulted Dr Yajuvendra Bisht, psychiatrist, at the request of Goodstart’s lawyers. In evidence, there is a report by Dr Bisht dated 27 March 2023.[27] I will now refer to the relevant parts of that report.
[27] Ms Holmes' AALD dated 3 May 2023 at pages 4-14.
Dr Bisht took a detailed history from Ms Holmes that was consistent with the evidence.
Dr Bisht made the following observations on mental state examination:
“The client presented as a young female of stated age. She was of average build and dressed in clean, clothes. She was holding a teddy bear through the course of the interview. There was no evidence of self-neglect. Her personal hygiene appeared appropriate. There were no abnormal movements, tics, or mannerisms. She did not appear to be responding to non-existing stimuli. She was able to give a good account of self. She was generally cooperative with the interview process. She was not guarded, evasive, suspicious, or challenging throughout the examination. The rapport was good. Her eye contact was normal, and her speech was of normal form, prosody, comprehension, and grammatical expression. She described her mood as ‘anxious, depressed’. Her affect was of anxious quality for most part of the interview. Her range and intensity of affect were restricted and mood congruent. Her affect was appropriate to the content of the interview. Her thought process was relevant to the process of the interview with no disturbances in thought connections. She tended to focus on themes of disappointment with her employer. She denied suicidal, homicidal, or self-harm ideation or plans. There were no perceptual disturbances in any modalities. Cognitively, she [sic: was] able to provide reasonably detailed answers to my questions with minor prompting, although there was circumstantiality. Her short-term memory was somewhat impaired. Long term memory was somewhat impaired. Her abstract thinking was not impaired. She has reasonable insight into her illness and the need for treatment. Her judgment is currently not impaired as evidenced by her not taking unwarranted risks with her own and others’ safety, and by making good choices regarding her psychiatric treatment, family, and finances.”[28]
[28] Ms Holmes' AALD dated 3 May 2023 at page 10.
Dr Bisht opined that there was a significant pre-existing condition that contributed to Ms Holmes’ current condition, referring to a reference to psychological issues when she was in high school and since the age of 15, struggled with her confidence and self-esteem.
Dr Bisht opined that Ms Holmes required further detailed neuropsychological testing to rule out malingering, as there were substantial indicators of malingering, including the report by her previous psychiatrist, Dr Cox, indicating abnormal illness behaviour and the lack of information provided by Ms Holmes in respect of her pre-existing condition.
As Dr Bisht was of the opinion that Ms Holmes required further detailed neuropsychological testing to rule out malingering, he was unable to advise whether he agreed with the diagnosis of Dr Khan; he was unable to comment on the nature of any injury sustained by Ms Holmes; he was unable to comment on causation; he was unable to comment as to whether Ms Holmes’ condition had reached maximum medical improvement; and he was unable to provide an assessment of whole person impairment.

Dr Abdal Khan: 1 May 2023

On 1 May 2023, Ms Holmes again consulted Dr Khan at the request of her lawyers. In evidence, there is a report by Dr Khan dated 1 May 2023.[29] I will now refer to the relevant parts of that report.
[29] Ms Holmes' AALD dated 3 May 2023 at pages 15-24.
Dr Khan repeated the detailed history he had previously taken from Ms Holmes. Dr Khan then provided an update on Ms Holmes’ progress and treatment. In this regard, he noted that there had not been any significant change in her mental state since the previous consultation on 15 December 2021 and that she continued to struggle with pervasive symptoms of depression and anxiety, which had a profoundly negative impact on her social, occupational and other important areas of functioning.
In respect of Ms Holmes’ progress, Dr Khan also noted:
“Ms Holmes’ mood was still dysregulated and continued to be characterised by depression, anxious ruminations, panic attacks and agitation. Her motivation and energy remained low, which affected her attention to her self-care and personal hygiene as well as her engagement in social and recreational activities. Ms Holmes showered and brushed her teeth on average two times per week and she often required prompting from her family to do so. She relied on her parents to complete all domestic duties, including cooking, cleaning and grocery shopping. Ms Holmes no longer engaged in social and recreational activities, which previously including [sic: included] socialising with family and friends as well as shopping and going for outings. She identified how she still had some contact with close friends but they needed to push her to engage with them. When she has needed to leave her home, Ms Holmes has required a support person. Her father needed to drive to Sydney to pick her up and take her to Coffs Harbour. Ms Holmes’ sleep and appetite issues persisted and her weight continued to fluctuate. There had not been any improvement on her cognition, particularly with regard to her attention, concentration and memory. Ms Holmes needed to put reminders on her phone or have her family remind her to take her medication. She had not returned to any form of employment since 10 February 2020. The subject injury had eroded her self-esteem, self-confidence, self-identity and trust in interpersonal relationships.
Ms Holmes continued to follow-up with her general practitioner at an average frequency of every four weeks and psychologist at an average frequency of every two weeks. She has not been referred for psychiatric treatment. Ms Holmes remained adherent with the anti-depressant medication escitalopram. She was due to commence the anti-insomnia medication melatonin SR. Ms Holmes was previously prescribed the anti-depressant medication sertraline. She required one admission to Northern Beaches Hospital due to a panic attack in late 2019. Ms Holmes mentioned how she had been referred by her treating team to the My Social Support Network program to assistant [sic: assist] with rebuilding her social engagement given that she had become increasingly withdrawn since the subject injury.”[30]
[30] Ms Holmes' AALD dated 3 May 2023 at pages 17-18.
On mental state examination, Dr Khan observed that Ms Holmes was casually dressed; appeared unkempt; there was no evidence of psychomotor disturbance; mood was described as dysphoric and anxious; affect was despondent and intermittently tearful; there were no abnormalities of speech or thought form; there were no acute risks; there was no perceptual disturbance; cognition had evidence of impairment in attention, concentration and memory; and she had appropriate insight and judgment.
Dr Khan confirmed his previous diagnoses of a major depressive disorder and a generalised anxiety disorder in accordance with the DSM-5 diagnostic criteria.
Dr Khan opined that Ms Holmes’ employment as a childcare educator with Goodstart continued to be the main contributing factor to her current psychiatric/psychological conditions. He further opined that she had not suffered an aggravation of a pre-existing psychiatric condition. He was of the view that Ms Holmes’ work-related psychiatric/psychological injury and conditions were not due to performance appraisal or discipline from her employer but rather, due to long-term psychological trauma from her employer whereby she felt bullied, harassed, targeted, threatened, unsupported, ignored and dismissed.

Dr Khan opined that Ms Holmes did not have any capacity for employment in her pre-injury duties or any other duties due to the ongoing impact of her psychiatric/psychological conditions on her mood regulation, motivation, energy, attention, concentration, memory, ability to tolerate stress, coping mechanisms, self-esteem, self-confidence, self-identity and trust in interpersonal relationships. He further opined that such incapacity had been caused by the work-related psychiatric/psychological injury sustained during her employment with Goodstart.
Dr Khan recommended the same six modalities of treatment as reasonably necessary for the ongoing management of Ms Holmes’ psychiatric/psychological conditions as he did in his report dated 16 December 2021 and added a seventh, namely, engagement in the My Social Support Network program as recommended by the program coordinator (Dr Howe).
In respect of the My Social Support Network biopsychosocial program, Dr Khan stated:
“Ms Holmes’ engagement in the My Social Support Network program is considered reasonably necessary. Such treatment will likely help address her social withdrawal and avoidance as well as rebuild her confidence to engage in social settings and interpersonal relationships, which are significant functional impairments that have been caused by her work-related injury. Engagement in community group-based programs is an appropriate and effective treatment to assist in the rehabilitation of Ms Holmes. The My Social Support Network program is the only online biopsychosocial program available in Australia that targets these goals and it has been endorsed by SIRA. Alternative treatments include psychiatric treatment and psychiatric medications. Ms Holmes is not receiving psychiatric treatment but she is receiving psychotropic medication, which should be an adjunct to ongoing psychological treatment and community rehabilitation. The My Social Support Network program is also much more cost effective than an inpatient psychiatric hospital admission.”[31]
[31] Ms Holmes' AALD dated 3 May 2023 at page 21.
In respect of Dr Bisht’s report dated 27 March 2023, Dr Khan found it difficult to comment on the report because Dr Bisht’s opinion was “clearly an outlier”.[32] Dr Khan noted that Dr Bisht raised concerns about the need to rule out malingering based on indicators of the same, which he did not explain in any detail. Dr Khan found Dr Bisht’s report inconsistent with his (Dr Khan’s) assessments of Ms Holmes on three separate occasions, where it was evident that she had suffered and continued to suffer from a work-related psychiatric/psychological injury. He also observed that it was inconsistent with the Commission’s Certificate of Determination dated 18 March 2021 and the contemporaneous medical records from treating general practitioners and psychologists.
[32] Ms Holmes' AALD dated 3 May 2023 at page 21.
Dr Khan stated:
“At no stage have I or any of Ms Holmes’ treating practitioners been concerned about any inconsistencies in her presentation that would warrant a referral for neuropsychologist testing. Furthermore, neuropsychologist testing is not diagnostic and cannot rule out malingering despite what Dr Bisht has suggested. Neuropsychologist testing serves to inform a comprehensive psychiatric assessment and mental state examination. Also, in the absence of objective non-clinical information that indicates Ms Holmes’ symptomatology and functioning is not at the level assessed, the diagnosis of malingering cannot be made.”[33]
[33] Ms Holmes' AALD dated 3 May 2023 at page 22.
Dr Khan opined that Ms Holmes’ prognosis remained guarded, in that, she continued to suffer from pervasive symptoms of depression and anxiety, which have had a profoundly negative impact on her social, occupational and other important areas of functioning.
Dr Khan maintained his assessment of Ms Holmes’ whole person impairment at 24%.

Dr Yajuvendra Bisht: 31 May 2023

On 31 May 2023, Dr Bisht provided a supplementary report at the request of Goodstart’s lawyers.[34] I will now refer to the relevant parts of that supplementary report.
[34] Goodstart's AALD dated 1 June 2023 at pages 1-2.
Dr Bisht stated that he had reviewed his previous reports dated 27 March 2023 and 22 May 2023; the report of Dr Howe dated 22 December 2022; and the report of Dr Khan dated 1 May 2023. Dr Bisht’s report dated 22 May 2023 was not in evidence.
The following matters were put to Dr Bisht by Goodstart’s lawyers:
(a) in the legislation, a workplace rehabilitation service is noted not to be medical or related treatment, and
(b) SIRA has approved My Social Support Network as a rehabilitation service provider.
The following questions were put to Dr Bisht by Goodstart’s lawyers:
(a) whether he considered that the proposed program constitutes medical or related treatment or a workplace rehabilitation service, and
(b) if the proposed program constitutes medical treatment rather than a workplace rehabilitation service, whether he considered that the treatment is reasonably necessary as a result of Ms Holmes’ psychological injury.
Dr Bisht responded to the questions put to him above as follows:
“The proposed program constitutes a workplace rehabilitation service, rather than medical or related treatment; while the program could help in the functional rehabilitation of the client, the services provided in the program do not align with the evidence-based treatment modalities for the client’s condition (ie treatments that would reduce the intensity of the symptoms of her diagnosis), as per the RANZCP guidelines.”[35]
[35] Goodstart's AALD dated 1 June 2023 at page 2 at [1].

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.

Goodstart’s submissions

There are two parts to Goodstart’s resistance to Ms Holmes’ application. The first is based on the definitions in s 59 of the 1987 Act. Ms Holmes relies on the definition “medical or related treatment” in sub-paragraph (b), which refers to “therapeutic treatment given by direction of a medical practitioner”. The definition goes on to exclude “workplace rehabilitation service”.
Based on the opinion of Dr Bisht,[36] Goodstart’s position is that the proposed program constitutes a “workplace rehabilitation service” and therefore, is excluded from the definition of “medical or related treatment” and s 60 of the 1987 Act does not apply.
[36] Goodstart's AALD dated 1 June 2023 at page 2 at [1].
The second limb to Goodstart’s argument goes to the applicability of the definition in s 59(b) of the 1987 Act. Dr Howe, who operates the proposed program and is directing the treatment, is not a medical practitioner and therefore, cannot satisfy the sub-paragraph.
Dr Dickson’s brief social therapy referral dated 17 November 2022[37] did not come within the definition of “therapeutic treatment given by direction of a medical practitioner”. The basis of the referral and the benefit of the treatment is not all that clear. The benefit is not stated by Dr Dickson. How Ms Holmes will benefit from the treatment is unclear.
[37] ARD at page 120.
On 11 August 2022, Dr Cocks, the treating psychiatrist, notably reported to Dr Levenston that Ms Holmes had disengaged from all forms of treatment and remained significantly impaired.[38] Dr Cocks opined that Ms Holmes needed to engage in treatment to optimise her mental health, as psychological therapy is crucial to the progress of her recovery.
[38] ARD at page 151.
Ms Holmes appeared to have disengaged from the process of psychological therapy. In the absence of what Dr Cocks had recommended, there must be significant doubt about the bare assertion made by Dr Dickson that there would be benefit from the proposed program.
The therapeutic treatment proposed is in doubt because Dr Dickson did not identify it as necessarily therapeutic, he merely stated that Ms Holmes would benefit from the program. The therapeutic nature of the treatment must be identified in order to fall within the definition in s 59(b) of the 1987 Act. The Commission would not be satisfied that the proposed treatment falls within the definition in the sub-paragraph.
Under s 60 of the 1987 Act, Ms Holmes must establish that the proposed treatment is reasonably necessary as a result of an injury. The case law in this regard is well known. The treatment must be shown to be of benefit or potential benefit to Ms Holmes. Therein lies the difficulty in this case.
In his report dated 16 December 2021, Dr Khan referred to recommendations and/or the need for treatment.[39] Such recommendations and treatment did not align with the therapeutic treatment now proposed.
[39] ARD at page 106.
In his report dated 1 May 2023, Dr Khan added Ms Holmes’ engagement in the proposed My Social Support Network biopsychosocial program to his list of recommendations and/or the need for treatment.[40] Dr Khan presumed that the proposed therapeutic treatment was recommended by the program coordinator. That, in itself, does not fall within the definition in s 59(b) of the 1987 Act. Dr Khan did not really engage with the other treatment requirements and whether Ms Holmes was engaging with those because without those, it would seem to follow, based on Dr Cocks’ opinion, the therapeutic treatment now proposed would likely be of little or limited benefit.
[40] Ms Holmes’ AALD dated 3 May 2023 at page 21.
There is no evidence that Ms Holmes was being treated by a psychiatrist; continued to take psychotropic medications; or had been admitted to a psychiatric hospital for treatment. On 11 August 2022, Dr Cocks reported that Ms Holmes had disengaged from all forms of treatment. Therefore, the Commission cannot be comfortably satisfied that the proposed treatment is reasonably necessary within the meaning of s 60 of the 1987 Act.
Accordingly, for the reasons referred to, Ms Holmes’ application that the cost of the proposed My Social Support Network biopsychosocial program be met by Goodstart must necessarily fail.

Ms Holmes’ submissions

The proposed My Social Support Network biopsychosocial program falls within the definition of “medical or related treatment” in s 59(b) of the 1987 Act.
Ms Holmes referred to the SIRA directions to health professionals in respect of the nationally endorsed clinical framework for delivery of health services when treating people injured in motor vehicle accidents or workplace incidents. The five principles of the clinical framework to ensure that the right care is delivered at the right time are to: measure and demonstrate the effectiveness of treatment; adopt a biopsychosocial approach; empower the injured person to manage their injury; implement goals focused on optimising function, participation and return to work; and base treatment on the best available research evidence.
SIRA’s direction is based on a document entitled, Clinical Framework for the Delivery of Health Services. In particular, the document deals with the adoption of a biopsychosocial approach. The key message identified under the biopsychosocial approach is that healthcare professionals must consider the biological, psychological and social factors that influence a person’s health as part of their assessment and treatment interventions.
Ms Holmes’ claim for the proposed treatment is based on a psychosocial assessment by Dr Howe and her recommendations.
Ms Holmes submitted that the word “direction” in the definition of medical or related treatment in s 59(b) of the 1987 Act has much the same connotation as the commonly used “referral”: Burke J in Bartolo v Western Sydney Area Health Service[41] (Bartolo). So, as Dr Dickson referred Ms Holmes for the proposed treatment, it is a direction for the treatment within the meaning of the definition of medical or related treatment in s 59(b) of the 1987 Act.
[41] Bartolo v Western Sydney Area Health Service (1997) NSWCCR 233.
The proposed treatment is therapeutic treatment within the meaning of the definition of “medical or related treatment” in s 59(b) of the 1987 Act because treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health.[42] It will facilitate Ms Holmes’ functionality.[43]
[42] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose).
[43] State of New South Wales (Central Coast Local Health District) v Bunce [2020] NSWWCCPD 48 at [58] and [60] (Bunce).
On Dr Howe’s assessment, the treatment program proposed is essentially to assist Ms Holmes with the psychosocial aspects of her life. In Woollahra Council v Beck[44] (Beck), Nielson J determined that the provision of taxi services to attend social functions was therapeutic.
[44] Woollahra Council v Beck (1996) 14 NSWCCR 179.
The treatment program proposed is to alleviate the effects of Ms Holmes injury, is a therapeutic service or treatment and is given on the referral of Dr Dickson.
Dr Bisht essentially provided no opinion as to Ms Holmes’ current condition. In Dr Bisht’s report dated 31 May 2023, he opined that the proposed treatment program constituted a workplace rehabilitation service, without any reference to the relevant legislation or the content of the proposed treatment program itself. It is a bald assertion. Dr Bisht’s opinion in this regard cannot be accepted. However, Dr Bisht did say that the proposed treatment program could help in the functional rehabilitation of Ms Holmes.
Ms Holmes relied on Dr Howe’s report dated 22 December 2022 and submitted that the proposed My Social Support Network biopsychosocial program, as described by Dr Howe in her report, is clearly not a return to work program. The program is aimed at ameliorating the effects of Ms Holmes’ psychosocial isolation, which arose as a direct result of her accepted psychological injury at work. As a psychologist, Dr Howe is qualified to provide the opinions expressed in her report.
Section 59 of the 1987 Act defines a workplace rehabilitation service as any such service provided by or on behalf of a provider of rehabilitation services approved under s 52 of the 1998 Act. Section 52(1) of the 1998 Act refers to an employer having to establish a return to work program with respect to policies and procedures for the rehabilitation, if necessary, of an injured worker. Such program must not be inconsistent with the injury management program of the insurer. The proposed treatment program is not a workplace rehabilitation service or a return to work program in the light of the above definitions.
The opinions expressed by Dr Howe in her report dated 22 December 2022 satisfied the test of reasonably necessary treatment set out in Diab v NRMA Ltd[45] (Diab). Dr Howe dealt with the appropriateness of the proposed treatment; the availability of alternative treatment and its potential effectiveness; the cost of the proposed treatment; the actual or potential effectiveness of the treatment in relation to return to work; and the acceptance of medical experts of the treatment as being appropriate and likely to be effective.
[45] Diab v NRMA Ltd [2014] NSWWCCPD 72.
Furthermore, Dr Khan endorsed the treatment program proposed by Dr Howe. Whilst Dr Khan referred to alternate treatment recommendations, none of those alternatives addressed the psychosocial aspect of Ms Holmes’ condition. Dr Khan addressed the benefits of the proposed treatment program. Whilst Ms Holmes may have been resistant to other forms of treatment or non-compliant with other forms of treatment, it did not mean that the proposed treatment program is not reasonably necessary.

FINDINGS AND REASONS

Is the proposed program one of the medical or related treatment types defined in s 59 of the 1987 Act?

The legislation and legal principles

Section 59 of the 1987 Act provides definitions relevant for the interpretation of Div 3, Pt 3. The following terms are defined: “ambulance service”, “chiropractor”, “dental prosthetist”, “hospital treatment”, “medical or related treatment”, “osteopath”, “public hospital”, and “workplace rehabilitation service”. The most common area of judicial scrutiny relates to the interpretation of “medical or related treatment”.
The definition of “medical or related treatment” in s 59 of the 1987 Act is as follows:
“‘medical or related treatment’ includes:
(a)    treatment by a medical practitioner, a registered dentist, a dental prosthesis, a registered physiotherapist, a chiropractor, and osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)    therapeutic treatment given by direction of a medical practitioner,
(c)    [repealed],
(d)    the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)    any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)    care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,
(f1)    domestic assistance services,
(g)    the modification of the worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h)    treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.”
The above definitions have been held to be an exhaustive list: Western Suburbs Leagues Club Illawarra Ltd v Everill.[46]
[46] Western Suburbs Leagues Club Illawarra Ltd v Everill [2001] NSWCA 56.
Ms Holmes relies on the definition of sub-paragraph (b) of the definition of “medical or related treatment”, namely, therapeutic treatment given by direction of a medical practitioner.
In Rose, Burke CCJ stated that treatment, in the medical or therapeutic context, related to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health.
In Beck, it was accepted that, providing the worker with social activities by the provision of taxi services to attend social functions, was therapeutic.
In Bunce, Snell DP stated that “therapeutic treatment” is broad and general. In that case, the Arbitrator found that all the medical professionals agreed that having an assistance dog was therapeutic to the worker’s psychological condition. Snell DP stated that the provision of the assistance dog, on the overall evidence, comfortably fell within the description of treatment in Rose as being designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. The therapeutic treatment was for the purpose of limiting the deleterious effects of a condition and restoring health.[47]
[47] State of New South Wales (Central Coast Local Health District) v Bunce [2020] NSWWCCPD 48 at [72.]
In Bartolo, Burke CCJ construed the word “direction” in sub-paragraph (b) of the definition of “medical or related treatment” in s 59 of the 1987 Act as having the same connotation as a referral and noted that in the doctor/patient relationship, the doctor advises and if the advice is accepted, refers the patient for appropriate treatment. An order or command is not required for a “direction” to have been given.[48]
[48] Bartolo v Western Sydney Area Health Service (1997) NSWCCR 233 at 236.
In Margaroff v Cordon Bleu Cookware Pty Ltd[49] (Margaroff), Campbell CJ expressed qualification of the view of Burke CCJ in Bartolo stating that, although in the normal course of events a referral will be a direction, it may not be if there is evidence to show that the referring doctor was merely asked to make the referral rather than thinking it was an appropriate referral or that the doctor recommended the treatment.
[49] Margaroff v Cordon Bleu Cookware Pty Ltd (1997) 15 NSWCCR 204 at 213.

Prior to 1 July 2010, “medical practitioner” was defined in s 59 of the 1987 Act. That definition was repealed by the Health Practitioner Regulation Amendment Act 2010. The definition is now contained in s 21 of the Interpretation Act 1987, which states that a “registered medical practitioner” or a “medical practitioner” means a person registered under the Health Practitioner Regulation National Law to practice as a medical practitioner (other than as a student). This definition applies to a medical practitioner in s 59 of the 1987 Act: Nishi v Macquarie Group Services Australia Pty Ltd.[50]
[50] Nishi v Macquarie Group Services Australia Pty Ltd [2012] NSWWCC 119.
Section 59 of the 1987 Act defines “workplace rehabilitation service” as any service provided as a workplace rehabilitation service by or on behalf of the provider of rehabilitation services approved under s 52 of the 1998 Act.
Section 52(1) of the 1998 Act provides that an employer must establish a return-to-work program with respect to policies and procedures for the rehabilitation and, if necessary, vocational re-education of any injured workers of the employer. An employer’s return-to-work program must not be inconsistent with the injury management program of the employer’s insurer and is of no effect to the extent of any such inconsistency.

Consideration and findings

I reject Goodstart’s submission that the proposed My Social Support Network biopsychosocial program constitutes a workplace rehabilitation service and therefore, is excluded from the definition of “medical or related treatment” in s 59(b) of the 1987 Act and that s 60 of the 1987 Act does not apply. In this regard, Goodstart relies on the report by Dr Bisht dated 31 May 2023.
I give Dr Bisht’s report dated 31 May 2023 little weight for the reasons stated below.
The case law makes it clear that the Evidence Act 1995 does not apply to proceedings in the Commission. Hancock v East Coast Timbers Products Pty Ltd[51] (Hancock) is authority for the proposition that in a non-evidence-based jurisdiction such as the Commission, the question of acceptability of expert evidence will not be one of admissibility but one of weight.
[51] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
The principles in relation to the acceptance of expert opinions in the Commission are well known. Rule 73(c) of the Personal Injury Commission Rules 2021 provides that “evidence based on speculation or unsubstantiated assumptions is unacceptable.” Rule 73(d) of the Personal Injury Commission Rules 2021 provides that “unqualified opinions are unacceptable.”
Whilst it is accepted that medical experts do not need to provide elaborate or detailed explanations for their conclusions, more than a mere “ipse dixit” (an assertion without proof) is required and the latter seems to be precisely what Dr Bisht has done in this matter. Dr Bisht made no reference to the relevant legislation, nor did he explain how he arrived at the conclusion that the proposed My Social Support Network biopsychosocial program constituted a workplace rehabilitation service.
Section 59 of the 1987 Act defines “workplace rehabilitation service” as any service provided as a workplace rehabilitation service by or on behalf of the provider of rehabilitation services approved under s 52 of the 1998 Act. Section 52(1) of the 1998 Act provides that an employer must establish a return-to-work program with respect to policies and procedures for the rehabilitation and, if necessary, vocational re-education of any injured workers of the employer. An employer’s return-to-work program must not be inconsistent with the injury management program of the employer’s insurer and is of no effect to the extent of any such inconsistency.
The fact that Dr Howe described My Social Support Network as being the only SIRA approved rehabilitation provider in New South Wales in the job placement specialisation category for people with primary or secondary psychological injuries, does not, of itself, make the proposed biopsychosocial program a “workplace rehabilitation service” within the meaning of the definition referred to above.
In view of the above definition of “workplace rehabilitation service” in s 59 of the 1987 Act and the employer’s obligations under s 52(1) of the 1998 Act, I find that the proposed My Social Support Network biopsychosocial program is not a “workplace rehabilitation service” and therefore, not excluded from the definition of “medical or related treatment” in s 59 of the 1987 Act.
Goodstart submitted that Dr Howe, who operates the proposed My Social Support Network biopsychosocial program, is not a medical practitioner and therefore, did not satisfy the s 59(b) definition of “medical or related treatment” under the 1987 Act. The submission is misconceived as the “direction” for the proposed biopsychosocial program was not made by Dr Howe. It was made by Dr Dickson.
Goodstart submitted that Dr Dickson’s social therapy referral did not satisfy the s 59(b) definition of “medical or related treatment” under the 1987 Act because the basis of the referral and the benefit proposed treatment was unclear, in that, Dr Dickson did not identify the therapeutic nature of the treatment. Goodstart provided no authority to support its submission in this regard. Accordingly, I reject that submission.
On 17 November 2022, Dr Dickson referred Ms Holmes to My Social Support Network for a social support program. There was no dispute that Dr Dickson is a medical practitioner within the meaning of s 59 of the 1987 Act. In his referral letter, Dr Dickson noted Ms Holmes’ depressive and anxious symptoms and the fact that she was very anxious, socially withdrawn and experienced difficulties with activities of daily living. Dr Dickson was obviously made aware of the program and understood what it entailed because he had formed the view that it would benefit Ms Holmes. The word “direction” in sub-paragraph (b) of the definition of “medical or related treatment” in s 59 of the 1987 Act has the same connotation as a referral: Bartolo. There was no evidence to show that Dr Dickson was merely asked to make the referral rather than thinking it was an appropriate referral or that he recommended the treatment: Margaroff.
Ms Holmes’ evidence was that she would really like to participate in the My Social Support Network biopsychosocial program. Following her meeting with Dr Howe in December 2022, she felt that the latter was very understanding of her condition and she felt reassured that she would be welcomed into a safe space that would assist with the progression of her treatment.
The therapeutic nature of the proposed biopsychosocial program was thoroughly explained by Dr Howe in her report dated 22 December 2022. Dr Howe opined that social support plays a complex, yet key role to an individual’s recovery from injury. She stated that research suggested that injured workers experienced social relationship breakdowns. Prolonged absences from work can also restrict a person’s ability to access or engage in activities which further increased the risk of social isolation. Dr Howe stated that building personal resources to support a return to work is critical for successful improvement in psychological and physical outcomes that can lead to successful return to community and work outcomes. People who have become isolated through work injury require support to re-engage with activities that can improve social support, reduce social isolation and lead to better mental and physical health.
I am satisfied that the provision of the proposed My Social Support network biopsychosocial program, on the overall evidence, is therapeutic to Ms Holmes’ psychological condition. The program comfortably falls within the meaning of “therapeutic treatment” in sub-paragraph (b) of the definition of “medical or related treatment” in s 59 of the 1987 Act. I find that the program is designed to arrest or abate the progress of the condition and/or to alleviate, cure or remedy her condition. It is also designed for the purpose of limiting the deleterious effects of Ms Holmes condition and restoring her health by having her re-engage with activities that can improve social support, reduce social isolation and lead to better mental and physical health, which can then lead to successful return to community and work outcomes.
Accordingly, I find that the proposed My Social Support Network biopsychosocial program is “therapeutic treatment given by direction of a medical practitioner” within the meaning of sub-paragraph (b) of the definition of “medical or related treatment” in s 59 of the 1987 Act. Having so found, I now turn to the second issue for determination.

Is the proposed program reasonably necessary treatment as a result of the injury sustained by Ms Holmes on 10 February 2020 within the meaning of s 60 of the 1987 Act?

The legislation and legal principles

Section 60(1) of the 1987 Act relevantly provides that, if as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the worker’s employer is liable to pay, in addition to any other compensation under the Act, the cost of that treatment or service.
Section 60(5) of the 1987 Act relevantly provides the Commission with jurisdiction to determine a dispute concerning any proposed treatment or service and the compensation that will be payable under s 60 of the 1987 Act in respect of any such proposed treatment or service. In this case, the proposed treatment is the My Social Support Network biopsychosocial program.
There are two elements to s 60(1) of the 1987 Act that must be considered. The first element is “as a result of an injury received by a worker”. The second element is that of “reasonably necessary” treatment.
Dealing with the first element, namely, “as a result of injury received by a worker”, I am required to conduct a common sense evaluation of the causal chain to determine whether the proposed My Social Support Network biopsychosocial program is reasonably necessary treatment as a result of the injury sustained by Ms Holmes on 10 February 2020.
The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[52] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby, P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[53] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.
[52] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
[53] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].
Murphy v Allity Management Services Pty Ltd[54] referred to Kooragang and is authority for the proposition that an injured worker must establish that the injury materially contributed to the need for the treatment or the surgery. The need for treatment or surgery can arise from multiple causes. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. Ms Holmes only has to establish, applying the common sense test of causation, that the treatment is reasonably necessary “as a result of” the injury.
[54] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
Turning to the “reasonably necessary” element, Roche DP in Diab set out the “standard” test adopted for determining if medical treatment is reasonably necessary in Rose and he noted subsequent appellate authority with respect to the use of the words “reasonably necessary”.
Roche DP’s observations in Diab of the words “reasonably necessary”, after noting the appellate authority, may be summarised as follows:
(a)    reasonably necessary does not mean “absolutely necessary”;
(b)    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;
(c)    the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose:
(i)the appropriateness of the particular treatment;
(ii)the availability of alternative treatment, and its potential effectiveness;
(iii)the cost of the treatment;
(iv)the actual or potential effectiveness of the treatment, and
(v)the acceptance by medical experts of the treatment as being appropriate and likely to be effective;
(d)    in respect of the criteria referred to in (c)(iv) above, while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative as the evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost;
(e)    bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary, and
(f)    while the above matters are useful heads for consideration, the essential question remains whether the treatment was reasonably necessary and as always, each case will depend on its facts.
Ms Holmes bears the onus of proving that the proposed My Social Support Network biopsychosocial program is reasonably necessary treatment as a result of the injury sustained by her in the course of her employment with Goodstart on 10 February 2020.

Consideration and findings

Ms Holmes’ primary psychological injury sustained in the course of her employment with Goodstart on 10 February 2020 is not in issue.
Dr Khan opined that Ms Holmes’ employment with Goodstart continued to be the main contributing factor to her current psychiatric/psychological condition. Further, Ms Holmes’ primary psychiatric/psychological injury resulted in the development of a major depressive disorder and generalised anxiety disorder, which in turn have negatively impacted on her mood regulation, motivation, energy, attention, concentration, memory, self-confidence, self-esteem, self-identity and trust in interpersonal relationships.
On 11 August 2022, Dr Cocks reported that he had initially formed the opinion that Ms Holmes met the criteria for a major depressive disorder in the context of her work at an early childhood centre. However, he was concerned about her lack of progress and her extraordinary reaction to the work-related stress and wondered about pre-existing vulnerabilities contributing to her current presentation. Dr Cocks noted that Ms Holmes had disengaged from all forms of treatment and remained significantly impaired.
On 6 October 2022, Dr Lim diagnosed a major depressive disorder and generalised anxiety disorder. Dr Lim opined that Ms Holmes sustained a psychological injury from the workplace where she was bullied and targeted by her manager. He opined that work was the main contributing factor to her injury.
On 28 October 2022, Mr Nielsen opined that Ms Holmes’ psychological condition was due to her work-related injury, where her employment was the main contributing factor.
In his social therapy referral dated 17 November 2022, Dr Dickson expressed the opinion that Ms Holmes had depressive and anxious symptoms as a result of a workplace injury. He was of the opinion that Ms Holmes would benefit from the proposed My Social Support Network biopsychosocial program.
On 27 March 2023, Dr Bisht was of the opinion that Ms Holmes required further detailed neuropsychological testing to rule out malingering. As a result, he was unable to advise whether he agreed with the diagnosis of Dr Khan; he was unable to comment on the nature of any injury sustained by Ms Holmes; and he was unable to comment on causation.
In respect of Dr Bisht’s report dated 27 March 2023, Dr Khan found it difficult to comment on the report because Dr Bisht’s opinion was “clearly an outlier”.[55] Dr Khan found Dr Bisht’s report inconsistent with his (Dr Khan’s) assessments of Ms Holmes on three separate occasions, where it was evident that she had suffered and continued to suffer from a work-related psychiatric/psychological injury. He also observed that it was inconsistent with the Commission’s Certificate of Determination dated 18 March 2021 and the contemporaneous medical records from treating general practitioners and psychologists.
[55] Ms Holmes' AALD dated 3 May 2023 at page 21.
On 1 May 2023, Dr Khan opined that Ms Holmes’ engagement in the My Social Support Network biopsychosocial program is considered reasonably necessary because it will likely help address her social withdrawal and avoidance as well as rebuild her confidence to engage in social settings and interpersonal relationships, which are significant functional impairments that have been caused by her work-related injury. He further opined that engagement in community group-based programs is an appropriate and effective treatment to assist Ms Holmes in her rehabilitation. Dr Khan noted that Ms Holmes was not receiving psychiatric treatment but that she was taking psychotropic medication, which should be an adjunct to ongoing psychological treatment and community rehabilitation.
Although Dr Khan did not include Ms Holmes’ engagement in the My Social Support Network biopsychosocial program in his report dated 16 December 2021, he did include it in his list of mental health treatment considered reasonably necessary for the ongoing management of her psychiatric/psychological conditions in his later report after having had the benefit of considering the contents of Dr Howe’s report dated 22 December 2022.
On 31 May 2023, Dr Bisht opined that, whilst the biopsychosocial program could help in the functional rehabilitation of Ms Holmes, the services provided in the program did not align with the evidence based treatment modalities for her condition, that is, the treatments that would reduce the intensity of her symptoms and diagnosis. Dr Bisht failed to fully engage with the issue at hand principally because he had opined that the proposed biopsychosocial program was a workplace rehabilitation service. Accordingly, I give Dr Bisht’s report little weight.
I found Dr Howe’s report dated 22 December 2022 persuasive. Dr Howe noted that Ms Holmes reported experiencing social isolation; having a limited social network; and being impacted by the long-term nature of the work injury due to the ongoing isolation from normal conversations and interactions. Dr Howe opined that the biopsychosocial program offered social support, social inclusion and the reduction of loneliness for injured workers through a stepped care capacity building program.
Dr Howe opined that, given Ms Holmes’ situation, it seemed reasonable and necessary to allow her to have access to the program, which was specifically designed to improve social function and to allow her to access information in a socially supported way to improve her mental health which could, in turn, lead to a return to community and work-related activities. Dr Howe pointed out that the biopsychosocial program had been endorsed by SIRA.
SIRA has in place directions to health professionals in respect of the nationally endorsed clinical framework for delivery of health services when treating people injured in motor vehicle accidents or workplace incidents, which can be found on its website.[56] The five principles of the clinical framework to ensure that the right care is delivered at the right time are to: measure and demonstrate the effectiveness of treatment; adopt a biopsychosocial approach; empower the injured person to manage their injury; implement goals focused on optimising function, participation and return to work; and base treatment on the best available research evidence.
[56] sira.nsw.gov.au/for-service-providers/treatment-advice-centre/clinical-framework.

SIRA’s direction is based on a document entitled, Clinical Framework for the Delivery of Health Services.[57] In particular, the document deals with the adoption of a biopsychosocial approach. The key message identified under the biopsychosocial approach is that healthcare professionals must consider the biological, psychological and social factors that influence a person’s health as part of their assessment and treatment interventions.
[57] Clinical Framework for the Delivery of Health Services, published by WorkSafe Victoria, June 2012.
The My Social Support Network biopsychosocial program falls within SIRA’s clinical framework.

I am satisfied and find, on the preponderance of the evidence, that Ms Holmes has established that her primary psychological injury has materially contributed to the need for her to participate in the My Social Support Network biopsychosocial program.
Applying the principles referred to in Diab, different treatments may qualify as “reasonably necessary” and Ms Holmes only has to establish that the treatment claimed is one of those treatments. The proposed My Social Support Network biopsychosocial program is one of those treatments.
I accept Ms Holmes as a witness of truth, who did her best to provide a history of her primary psychological injury, her treatment and her complaints of symptoms to her various treatment providers and the forensic medical specialists. The histories she provided of injury, treatment and complaints of symptoms were, in the main, consistent.
I accept the ongoing symptoms and restrictions listed in Ms Holmes’ evidentiary statement dated 11 April 2023. Whilst Ms Holmes may have disengaged from all forms of treatment at the time she consulted Dr Cocks on 11 August 2022, I am satisfied and accept that, since changing her general practitioner, she is undergoing fortnightly consultations with Dr Dickson and a psychologist within his medical practice. I am also satisfied and accept that she is currently taking Lexapro 20mg tablets daily.
I find that the treatment Ms Holmes has undergone over the past three years is likely to continue to be ineffective without the proposed biopsychosocial program to underpin that treatment. Psychotropic medication and psychological counselling on their own have been ineffective thus far and Ms Holmes’ ongoing major depressive disorder and generalised anxiety disorder and related severe symptoms are likely to persist.
Goodstart did not raise an issue in respect of the cost of the proposed biopsychosocial program.
In respect of the potential effectiveness of the proposed biopsychosocial program, I accept Dr Howe’s opinion that research evidence suggests that such an approach can deliver strong health and work outcomes. In terms of its purpose and potential effect, I also accept that it can lead to improvements in quality of life, connection with community, upgrades in capacity as well as return to work for long-term injured people.
The preponderance of the evidence supports the proposed biopsychosocial program as being reasonably necessary and likely to be beneficial in the circumstances of this case.
Accordingly, I find that Ms Holmes has discharged the onus of proving that the My Social Support Network biopsychosocial program proposed by Dr Dickson and Dr Howe is reasonably necessary treatment as a result of the injury sustained by Ms Holmes in the course of her employment with Goodstart on 10 February 2020 within the meaning of s 60 of the 1987 Act.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

Intake assessment including case conference	$450.00
Onboarding onto MSSN platform; individual introduction session to ensure technical aspects of the program	$330.00
12-week Social Therapy Program	$1,950.00
8-week Personal Development Program	$1,500.00
Program Diary a) Hard copy personal development modules b) Daily Goal Planner	$110.00
Reports x 1 at the end of each program including individual interview - $16.40 (+GST) /5 minutes (maximum 1 hour)	$196.80 each
Case conferences - $16.40 (+GST) /5 minutes (maximum 1 hour)	$196.80 each
Total	$4,723.60 (excluding GST)

[2023] NSWPIC 365

24 July 2023