Lott v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lott v State of New South Wales (NSW Police Force) [2025] NSWPIC 504
APPLICANT:	David Lott
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	John Isaksen
DATE OF DECISION:	24 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for the respondent to pay for the cost of a four wheel drive wheelchair (or ‘mobility scooter’) and portable ramp for that scooter as a result of injury to both feet in the course of employment as a police officer; review of medical evidence regarding consideration the extent of the pain experienced and complained of by the worker; consideration of Rose v Health Commission (NSW), and Diab v NRMA Ltd; Held – the mobility scooter and portable ramp for that scooter are reasonably necessary as a result of the injury sustained by the worker.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The provision of a Magic XT4 four-wheel drive wheelchair for use by the applicant, and a portable ramp for that wheelchair, are reasonably necessary as a result of the injury sustained by the applicant to both feet. The Commission orders: 1. Pursuant to s 60 (5) and s 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the costs of a Magic XT4 four-wheel drive wheelchair and a portable ramp for that wheelchair. 2. The respondent is to pay the applicant’s costs as agreed or assessed. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

David Lott, the applicant in these proceedings, seeks an order pursuant to s 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) that the respondent, State of New South Wales (NSW Police Force), pay for the costs of:
(a) a Magic XT4 four-wheel drive wheelchair, and
(b) a portable ramp for the wheelchair.
Mr Lott claims that these items are reasonably necessary as a result of the injury that he sustained to both feet while in the course of his employment as a police officer with the respondent.
The respondent accepts liability for the injury sustained by the applicant to both his feet, with a deemed date of injury of 20 July 2016, but denies liability for these particular claims made by Mr Lott in dispute notices issued by EML NSW Ltd on the grounds that these items are not reasonably necessary as a result of the injury sustained by Mr Lott.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the provision of the Magic XT4 four-wheel drive wheelchair and portable ramp for the wheelchair are reasonably necessary as a result of the injury sustained by Mr Lott on 20 July 2016 (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was listed for conciliation and arbitration on 16 September 2025. Mr Hammond appeared for the applicant, instructed by Mr Bartley. Mr Grimes appeared for the respondent, instructed by Mr Falconer-Flint.
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.
Most of the medical evidence and the submissions from the parties referred to the Magic XT4 four-wheel drive wheelchair as a “mobility scooter”, and that term will also be used throughout this decision.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents filed by the respondent on
15 September 2025, and
(d)    Application to Lodge Additional Documents filed by the respondent on
19 September 2025 (pursuant to a Direction made at the conclusion of the hearing on 16 September 2025).

Oral evidence

There was no application to adduce oral evidence from the applicant or to cross examine the applicant.

The applicant’s evidence

Mr Lott has provided a statement dated 12 June 2025.
Mr Lott states that he began to experience pain in both his feet after being transferred to the Public Transport Command in about 2015. He states that he was medically discharged from the NSW Police Force due to workplace injuries to his feet, back and a psychological injury on or about 14 May 2022. His last day of actual work for the NSW Police Force was in about March 2019.
Mr Lott states that the pain in his feet has ranged from 5/10 to 10/10 for the past eight years. He states that he has difficulty walking any longer than 10 minutes and standing for prolonged periods of time due to ongoing pain in his feet.
Mr Lott states that he lives on a three-acre property. He states that in October 2022 an assessment of his activities of daily living was conducted by Prestige Health Services Australia at the request of the respondent, and this included a recommendation for the trial of the use of a mobility scooter, but that this recommendation was never approved by the insurer of the respondent.
Mr Lott states that he has since hired a mobility scooter on a number of occasions, including one from the off road range from Magic Mobilities, which he has found to be excellent. He states that he was able to operate this scooter easily and was able to navigate around his property so that he could do a number of chores and jobs without constantly being on his feet.
Mr Lott states that when he has been able to trial or hire a mobility scooter it has been life changing for him because it allows him to become more mobile and engage in activities.

The medical evidence

Dr Belthikiotis writes in a report dated 11 November 2024 that he has been Mr Lott’s general practitioner since June 2018. He writes that Mr Lott has undergone extensive and varied therapy for chronic fasciitis over the past six years, and that Mr Lott remains severely affected by his conditions. He writes that Mr Lott now requires more physical help, and a suitable mobility scooter would provide that additional support.
Dr Wines has been Mr Lott’s treating orthopaedic surgeon since June 2017 and there are multiple reports from Dr Wines in the evidence before the Commission.
Dr Wines made a diagnosis of plantar fasciosis and Achilles tendinosis when he initially examined Mr Lott on 1 June 2017. Dr Wines performed bilateral tendo-Achilles and plantar fascial reconstructions, scarifications and injections on 23 June 2017, but despite initial optimism following that surgery, Dr Wines has recorded Mr Lott having ongoing pain over the ensuing years.
Dr Wines writes in a report dated 12 December 2019 that Mr Lott struggles with ongoing discomfort from his feet, and that the pain is of variable intensity and at times relatively severe.
Dr Wines writes in a report dated 24 April 2023 that Mr Lott has done everything that has been asked of him despite limited progress.
Dr Wines writes in a report dated 7 December 2023 that he is optimistic that Mr Lott will receive approval for a mobility scooter in the near future.
Dr Wines writes in a report to the insurer of the respondent dated 29 January 2024 in regard to a request made by Mr Lott for the payment of the cost of several supportive shoes that
Mr Lott has had ongoing tenderness at the insertion of his plantar fasciae and tendo-Achilles on multiple clinical examinations. Dr Wines writes that Mr Lott’s symptoms have persisted numerous appropriate treatments including physiotherapy, platelet rich plasma and shock wave therapy.
Dr Wines writes in a report dated 28 August 2024 that Mr Lott’s persistent pain is neuropathic in nature.
Mr Lott has also attended Dr Sturm, neurologist, for treatment. Dr Sturm writes in a short report dated 12 March 2024 that the diagnosis for Mr Lott’s condition includes chronic pain syndrome - plantar fasciitis, tendinitis, chronic regional pain syndrome.
The evidence reveals that Mr Lott has attended a number of pain medicine specialists over the years. Dr Taylor from Northern Pain Centre writes in May 2020 that Mr Lott presents with persistent, bilateral foot pain due to plantar fasciitis and Achilles tendinitis. Associate Professor Russo from Hunter Pain Specialists writes in December 2023 that Mr Lott presents with chronic widespread pain which is likely to be a mixture of central sensitisation as well as potentially myofascial pain issues.
Dr Kadavil from Northern Integrated Pain Management writes in February 2025 that Mr Lott meets the Budapest criteria for a diagnosis of complex regional pain syndrome (CRPS). He supports the use of a mobility scooter for Mr Lott in a report dated 31 March 2025.
Dr Porteous, occupational physician, has provided a report at the request of Mr Lott’s lawyers dated 6 September 2024. Dr Porteous finds on examination that Mr Lott is tender over the plantar ligament and has pain with foot arch compression testing in both feet, although he concludes from his examination that Mr Lott does not meet the criteria for CRPS for permanent impairment.
Dr Porteous opines that the proposed mobility scooter will assist with reducing or alleviating some of the consequences of the injury sustained by Mr Lott, and will maintain or improve his state of health and quality of life.
There is a report from Libby Woods, occupational therapist, dated 31 October 2022.
Ms Woods writes that Mr Lott has requested a mobility scooter due to his very limited walking capacity, as this would enable him to participate in family outings, watch his children play sport, and take his children around his 2.5acre property.
Ms Woods recommends various cleaning services to assist Mr Lott, and she writes that it would be reasonable for there to be a trial of the use of a mobility scooter to further explore options and recommendations.
Dr Bentivoglio, orthopaedic surgeon, has provided reports at the request of the respondent dated 16 November 2021, 26 April 2023, and 11 August 2025.
In his report dated 16 November 2021, Dr Bentivoglio writes that he found no swelling in the tendo-Achilles in either heel, and that Mr Lott was not particularly tender over the insertion of the plantar fascia into his calcaneus. He concludes that there are no features consistent with CRPS.
Dr Bentivoglio writes that a spec CT bone scan in March 2017 indicates evidence of right tendo-Achilles enthesitis and left plantar fasciitis. However, MRI scans performed on the heel in February 2017 showed no evidence of any Achilles tendinitis or plantar fasciitis.
Dr Bentivoglio concludes that he is unable to give an accurate diagnosis or indeed any diagnosis of Mr Lott’s condition, and that the investigations of both feet and ankle regions show minimal to no abnormality.
Dr Bentivoglio writes in his next report dated 26 April 2023 that he did not examine Mr Lott because Mr Lott left as he did not consider he could obtain any beneficial treatment from the examination to be conducted by Dr Bentivoglio.
Dr Bentivoglio writes:
“Mr Lott’s investigations show a 1 out of 10 abnormalities and his complaints are 10 out of 10 disability. There was a significant mismatch between the abnormalities seen on any investigations and the amount of symptoms he is complaining of.
He is currently trying to get a mobility scooter stop nobody could justify the need for this on the minimal abnormalities seen on his investigations of 6 years ago.”
Dr Bentivoglio also writes that Mr Lott may have had plantar fasciitis in mid-2015 but he would expect the minor plantar fasciitis in his left heel to have completely resolved.
The opinion of Dr Bentiovoglio does not alter in a supplementary report dated
11 August 2025. Dr Bentivoglio states that it “is entirely inappropriate for Mr Lott to be supplied with a motorised scooter noting his normal investigations in the past.”
Associate Professor Molloy, anaesthetist and pain management specialist, has provided a report at the request of the respondent dated 16 August 2025.
Associate Professor Molloy writes that he found no signs of CRPS on examination of Mr Lott. He found a good range of movement of the ankles and normal power in the lower limbs. Associate Professor Molloy nonetheless opines that the prognosis for Mr Lott is that he will continue to suffer persisting pain as he has a chronic pain syndrome. He also writes that he does not consider Mr Lott to be exaggerating or feigning his condition.
Associate Professor Molloy does not provide an opinion as to whether the mobility scooter sought by Mr Lott is reasonably necessary as a result of his injury.

A summary of the submissions by the parties to this dispute

Mr Hammond on behalf of Mr Lott submits that the preponderance of medical evidence supports a conclusion that Mr Lott continues to suffer significant pain and restrictions in his lifestyle, and that the provision of a mobility scooter is reasonably necessary as a result of the injury that Mr Lott has sustained to his feet.
Mr Hammond submits that the respondent relies primarily on the opinion of Dr Bentivoglio, but that expert is very much on his own compared to most of the medical evidence.
Mr Grimes on behalf of the respondent submits that the pathology which is identified in the reports from scans of the lower limbs is minor and minimal when compared to the symptoms and difficulties complained of by Mr Lott. He submits that this minimal pathology is consistent with the findings made on examination by Dr Bentivoglio, who does not find anything remarkable from that examination.
Mr Grimes submits that the opinion of Dr Bentivoglio is consistent with the objective pathology.

DETERMINATION

That Dr Bentivoglio is very much on his own in the opinion which he provides compared to most of the medical evidence does not mean that this opinion should be rejected.
Dr Bentivoglio finds little abnormality during the one examination of Mr Lott that he is permitted to have, and he compares those findings to his own consideration of relevant scans of the lower limbs.
However, I prefer the findings and opinion of several experts relied upon by Mr Lott, in particular Dr Wines.
Dr Wines has been treating Mr Lott for over eight years now and is in a very good position to identify ongoing problems that Mr Lott has been experiencing in his feet. Dr Wines initially diagnoses Mr Lott as having plantar fasciosis and Achilles tendinosis in June 2017 and performs surgery in response to that diagnosis. However, Dr Wines continues to record that Mr Lott’s symptoms have persisted despite numerous appropriate treatments, and he finds ongoing tenderness in both feet on multiple clinical examinations. Dr Wines now concludes that Mr Lott’s persistent pain is neuropathic in nature.
I prefer the opinion of a treating specialist who has monitored Mr Lott’s condition over several years, has identified persistent symptoms on examination, and now considers that his patient has symptoms that are consistent with neuropathic pain.
That preference for the findings and opinions of Dr Wines is bolstered by the material from three pain specialists who have treated Mr Lott. The attendance by Mr Lott upon those pain specialists has occurred over a period of almost five years, and all three specialists have accepted that Mr Lott has ongoing and chronic pain in his feet.
Furthermore, the opinion of a fourth pain specialist, Associate Professor Molloy, supports
Mr Lott’s complaints of chronic pain. Associate Professor Molloy did not consider Mr Lott to be exaggerating or feigning his condition when he conducted an examination less than three months ago.
Associate Professor Molloy does not provide an opinion as to whether the mobility scooter sought by Mr Lott is reasonably necessary as a result of his injury. It is apparent from the additional documents filed by the respondent on 19 September 2025, and which were referred to by Mr Hammond in his submissions, that Associate Professor Molloy was not initially asked if a mobility scooter was reasonably necessary treatment for Mr Lott’s condition. A second letter of instruction was sent to Associate Professor Molloy, which included questions related to the need for a mobility scooter, but there is no subsequent response from Associate Professor Molloy which is in evidence.
Nonetheless, it is readily apparent that Associate Professor Molloy accepts that Mr Lott is experiencing chronic and ongoing pain, and that Mr Lott has a poor prognosis.
The primary defence raised by the respondent to resist the claim made by Mr Lott as set out in the dispute notices issued on behalf of the respondent and in the submissions made by
Mr Grimes is that there is “a significant mismatch” between the symptoms complained of by Mr Lott and the abnormalities seen on relevant scans.
However, I prefer and accept the clinical judgment of a treating specialist who has had the benefit of overseeing treatment for Mr Lott for over eight years and who has consistently accepted that his patient has ongoing pain and discomfort in his feet and ankles, along with some four pain specialists who have accepted Mr Lott’s complaints of chronic pain.
Mr Grimes submits that the failure by some treating doctors, such as Dr Sturm and
Dr Kadavil, to properly set out the criteria for CRPS means that there is not a prima facie basis for the diagnosis of CRPS and that particular condition should not be a factor in the determination of whether the mobility scooter amounts to reasonably necessary medical treatment.
In my view, it is irrelevant as to whether Mr Lott meets the criteria of a diagnosis of CRPS for the purposes of this dispute. As I have already observed, the primary or threshold issue in this dispute is the extent of pain and disability being suffered by Mr Lott as a result of the work injury, and I have provided my reasons as to why I consider that Mr Lott continues to experience significant pain in his feet as a result of that injury. Thereafter the question is whether the use of a mobility scooter is reasonably necessary as a result of the injury.
Ms Woods has had the benefit of attending the property where Mr Lott resides and recommends the trial of a mobility scooter. Dr Belthikiotis has had a long association with
Mr Lott in his capacity as his general practitioner and also accepts that Mr Lott has been severely affected by pain in his feet resulting from the work injury. Dr Belthikiotis considers that a mobility scooter will provide additional support for Mr Lott.
Having been satisfied from a review of the available evidence that Mr Lott continues to experience significant pain in his feet as a result of the work injury, I consider that the provision of a mobility scooter as recommended by Dr Belthikiotis and Ms Woods meets a central principle outlined by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose):
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
The mobility scooter will allow Mr Lott to travel around his 2.5acre property and attend to at least some jobs which are required to maintain the property. It will also allow him to engage more fully in activities being undertaken by his children. The provision of a mobility scooter will therefore allow Mr Lott to engage in activities which might otherwise lead to an increase in pain in his feet. The provision of a mobility scooter aims to “alleviate the consequences of injury” (Rose).
Mr Grimes also raises the issue of the cost of the mobility scooter and ramp, which is a factor to be considered as to whether particular medical treatment is reasonably necessary (see Rose and also Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) at [88]). He submits that none of the experts relied upon by Mr Lott has addressed this, especially when the total cost will be at least $40,000.

Cost is a factor, but only one factor or one of several “useful heads of consideration” (Diab at [90]). Cost must be considered alongside the appropriateness of the treatment and potential effectiveness of the treatment (Diab at [88]).
Having regard to the significant pain which Mr Lott continues to experience in his feet and the benefits that the provision of a mobility scooter is likely to provide to Mr Lott, I do not consider that the cost of the scooter and ramp outweighs the potential benefit for Mr Lott.
I also agree with the response from Mr Hammond that no alternative to the assistance that is to be provided by the mobility scooter is suggested by the respondent. DP Byron in Newcastle Regional Public Tenants Council Incorporated v Grant [2005] NSWWCCPD 2 (Grant) said at [70]: “It is not the role of the Arbitrator to provide alternatives, this being the responsibility of the parties”.
There will therefore be a finding that the use of a Magic XT4 four-wheel drive wheelchair and a portable ramp for that wheelchair are reasonably necessary as a result of the injury sustained by Mr Lott to his feet, and that the respondent is to pay the costs of a Magic XT4 four-wheel drive wheelchair and a portable ramp for that wheelchair.

[2025] NSWPIC 504

24 September 2025