Mazuran v Lake Macquarie Sheet Metal Pty Ltd
[2024] NSWPIC 436
•14 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mazuran v Lake Macquarie Sheet Metal Pty Ltd [2024] NSWPIC 436 |
| APPLICANT: | George John Mazuran |
| RESPONDENT: | Lake Macquarie Sheet Metal Pty Ltd |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 14 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; section 60; claim for compensation for medical treatment; accepted lower back injury; whether mobility scooter is reasonably necessary as a result of the accepted lower back injury; Held – mobility scooter is reasonably necessary medical or related treatment; respondent to pay the costs of and incidental to a mobility scooter. |
| DETERMINATIONS MADE: | The Commission determines: 1. A mobility scooter is reasonably necessary medical or related treatment pursuant to s 60 of the Workers Compensation Act 1987 as a result of a lower back injury sustained by the applicant on 31 August 2019. The Commission orders: 2. The Respondent to pay the costs of and incidental to a mobility scooter in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
George John Mazuran (the applicant) is a 68-year-old man. The applicant was a sheet metal worker and commenced employment with Lake Macquarie Sheet Metal Pty Ltd (the respondent) in the position of supervisor in 2018.
On 31 August 2019, the applicant injured his lower back in the course of his employment when he fell from a ladder and struck his lower back on a kitchen benchtop (the injury).
The respondent accepted liability for the injury. The respondent paid the applicant weekly compensation from the date of the injury to 11 March 2023, when such compensation ceased to be payable pursuant to s 60(2) of the Workers Compensation Act 1987 (the 1987 Act) because the applicant reached the age of 68 years.
In or about April 2023, the applicant made a claim for medical and related expenses pursuant to s 60 the 1987 Act in respect of an automatic mobility scooter (mobility scooter) in accordance with the request of the applicant’s Nominated Treating Doctor, Dr Tenzin Lhundup.
By notice dated 3 May 2023 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer (the insurer) declined liability for the treatment on the basis that:
(a) a mobility scooter was not one of the listed types of medical or related treatment under s 59 of the 1987 Act, and
(b) a mobility scooter was not reasonably necessary as a result of an injury as required by s 60 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 11 June 2024. The applicant seeks compensation pursuant to s 60 of the 1987 Act for and related to the provision of a mobility scooter.
At a conciliation/arbitration hearing conducted by MS Teams on 6 August 2024,
Mr Ross Stanton, counsel, appeared on behalf of the applicant, instructed by Mr Mantach, solicitor of MRM Lawyers. Mr Tom Grimes, counsel, appeared on behalf of the respondent, instructed by Ms Tunnicliff, solicitor of Hicksons Lawyers.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUES FOR DETERMINATION
At the hearing, on behalf of the respondent, Mr Grimes:
(a) confirmed that the respondent accepts liability for the injury;
(b) stated that the respondent concedes that a mobility scooter is either or both an “artificial aid” or “curative apparatus” and accordingly falls within the definition of “medical or related treatment” in s 59 of the 1987 Act, and
(c) stated that the respondent concedes that payment of the claimed compensation is not limited by s 59A of the 1987 Act as the relevant compensation period has not expired.
The parties agree that the following issue remains in dispute:
(a) whether the mobility scooter is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.
EVIDENCE
Documentary evidence
By consent, the following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply to ARD and attached documents;
(c) applicant’s Application to Admit Late Documents (AALD) dated 22 July 2024 and attachments (admitted into evidence by consent), and
(d) respondent’s Application to Admit Late Documents (AALD) dated 20 July 2024 and attachments (admitted into evidence by consent).
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Applicant’s evidence
Applicant
The applicant gave evidence by way of three statements.
In a statement dated 3 May 2023, the applicant stated that:
(a) he had worked as a sheet metal tradesmen from about the age of 15 years until the injury on 31 August 2019;
(b) he has not worked since the injury due to ongoing problems with pain, aching and restriction of movement in his lower back;
(c) his claim for workers compensation was accepted by the insurer and he was paid weekly workers compensation benefits from the date of the injury until 11 March 2023 after he reached retirement age plus one year;
(d) the applicant also received compensation for medical treatment expenses;
(e) he continues to experience constant pain, aching and restriction of movement in his lower back, which gets worse with any physical activity including bending, twisting, lifting/carrying, walking long distances and standing for long periods;
(f) when walking, he mostly uses a walking stick or holds onto his wife for support instead of using the walking stick, and
(g) the injury prevents him from participating in various activities, sports and recreations which he previously enjoyed.
In a statement dated 4 March 2024, the applicant stated that:
(a) he continues to experience ongoing pain and restriction in his lower back which becomes more severe with any activity, particularly with bending and walking;
(b) he is very limited in his ability to walk because his back pain makes him feel unstable when he walks and requires him to take frequent rest breaks;
(c) the pain grabs him suddenly and makes him unsteady and he relies on his walking stick to prevent falls;
(d) when walking, he feels unsteady and uses a walking stick primarily to reduce the risk of falling over, and also to support himself to relieve his back pain;
(e) because of the pain and unsteadiness, he walks very slowly and carefully and has to stop after a short distance of 20 metres or so;
(f) the applicant’s ability to live a normal life is severely compromised by the back pain and he struggles to go to the shops or on outings;
(g) he feels depressed about the loss of his ability to do normal activities, and
(h) a mobility scooter would help him to get around, reduce the risk of falling, reduce the pain he experiences when walking and would give him the opportunity to get out.
In a statement dated 21 July 2024, the applicant stated that:
(a) because of his back pain and restriction, the applicant rarely drives a car, and most times he is a passenger, he requires assistance to get in and out of cars and has to rely on family members to assist him;
(b) he feels terrible being stuck a home like a “hermit” and he hates having to be assisted by others and having to rely on others, and
(c) he tried a mobility scooter a couple of times and found that: he was able to use the mobility scooter without any assistance; it was much easier to get out and about by himself; it would give him back some independence and help to manage the risk of him falling.
Treating medical evidence
Dr Tenzin Lhundup, Nominated Treating Practitioner
By report dated 5 July 2023, Dr Lhundup, stated:
“George Mazuran has chronic back problem due to work related injury as a result he cannot walk without a walking stick. He saw multiple specialist -they advised conservative management. He has seen physiotherapy multiple times-that only helps at the time he does it and then pain comes back. This is crippling his walk and cannot do much as a result he is always bound to his home. He had a MRI which showed disc bulge in multiple Lumbar Spine. This unable to walk is impacting on his mental health also. It is making him more depressed,anxious and unable to sleep in night. So could you help him with automatic scooter as he cannot walk without walking stick.” [sic]
Dr Omprakash Damodaran, neurosurgeon
By report dated 18 June 2022, Dr Damodaran stated that:
(a) since falling off a ladder at work, the applicant has imbalance issues and ongoing back pain and had not been able to work;
(b) MRI of the lumbar spine demonstrated degenerative disc disease and discovertebral changes at L4/5 and L5/S1, and mild canal stenosis at L3/4 but not severe nerve root compression;
(c) he diagnosed discogenic and facet mediated back pain since the fall, and
(d) that diagnosis did not explain the applicant’s gait disturbance and further imaging was required.
By report dated 16 August 2022, Dr Damodaran stated that:
(a) MRI demonstrates loss of disc height and discovertebral changes at L4/5 and L5/S1, also C4/5 disc prolapse with moderate canal stenosis, with no cord signal change;
(b) in his opinion, the applicant had an incidental finding of cervical canal stenosis, but no signs of cervical myelopathy, and
(c) the main issue is chronic back pain and surgery was unlikely to assist in improving his symptoms.
Dr Hasher Kadavil, specialist pain management physician
By report dated 24 October 2022, Dr Kadavil stated that:
(a) following a fall while working, scans revealed that the applicant had L4/5, L5/S1 disc pathology and cervical canal stenosis but no signs of cervical myelopathy;
(b) the applicant had constant low back pain;
(c) the applicant used a walking stick to help him to mobilise, and
(d) the applicant’s physical function had deteriorated since the onset of pain.
By report dated 19 December 2022, Dr Kadavil stated that:
(a) the applicant was being treated with pain medication which he found useful;
(b) Dr Kadavil asked the applicant to remain “as active as possible”.
Diagnostic Imaging
Reports of diagnostic imaging included:
(a) imaging of the lumbo-sacral spine on 3 September 2019;
(b) MRI of the thoracic and lumbar spine on 11 October 2019;
(c) whole body scan on 22 November 2019;
(d) MRI lumbosacral spine on 30 September 2021, and
(e) bone scan on 14 July 2022.
Other evidence
The applicant’s evidence also included:
(a) a quote from Mobility Joy for a mobility scooter in the amount of $5,993, and
(b) a quote from Independent Living Specialists for a mobility scooter in the amount of $6,087.99.
Independent medical evidence
Professor Ghabrial, orthopaedic and spinal surgeon
Prof Ghabrial provided an independent medical opinion, qualified by the applicant.
By report dated 3 July 2023, Prof Ghabrial stated:
(a) the applicant has severe stiffness in his back with positive tension signs in both legs and minor weakness in both lower limbs as well as sensory changes in the neural elements at the L3 level;
(b) in his opinion, the applicant sustained a severe injury to the L3/4 and L4/5 segments of his back in a fall at work on 31 August 2019;
(c) the applicant remains indefinitely unfit for lifting, bending, twisting, sitting or standing for lengthy periods as well as activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven grounds, standing for lengthy periods or walking for long distances;
(d) in his opinion, the applicant’s employment is the main contributing factor to the present clinical features, disabilities and impairment, and
(e) he assessed total 13% whole person impairment (WPI) as a result of the injury, calculated on the basis of 10% WPI for the lumbar spine and 3% WPI for restriction of activities of daily living.
By report dated 27 March 2024, Prof Ghabrial stated:
“I understood from the statement of Mr. Mazuran that his mobility was markedly restricted because of his painful back. This has restricted his activities outside home. His local medical officer, Dr. Lhundup has recommended a mobili ty scooter as he cannot walk without a walking stick and he is not able to go out of home and l understood that has caused severe depression.
Under these circumstances, I believe that a mobility scooter is reasonably and necessary for applicant to improve his mobility and allow him to get out of the confined spaces of his home as a result of the lower back injury on the 31st August 2019.”
Dr John Bosanquet, orthopaedic surgeon
Dr Bosanquet provided an independent medical opinion, qualified by the respondent.
By report dated 11 December 2023, Dr Bosanquet stated:
(a) a diagnosis of aggravation of pre-existing degenerative changes of the lower lumbar spine;
(b) he found no evidence of radiculopathy;
(c) the applicant has ongoing pain, difficulty walking, bending, lifting and problems with balance;
(d) the applicant’s complaints and incapacity for work is a direct result of injury on 31 August 2019;
(e) the applicant’s prognosis is guarded;
(f) he did not consider that the applicant could return to work;
(g) no further treatment is required apart from painkiller medication, and
(h) he assessed 4% total WPI as a result of injury, calculated on the basis of 5% WPI for the lumbar spine and 2% for restrictions of activities of daily living.
By report dated 30 July 2024, Dr Bosanquet stated:
(a) in his opinion, the provision of a mobility scooter is not reasonably necessary because of the injury;
(b) the applicant does not require a mobility scooter because although he has injured his back, he is able to walk with the use of a cane, drive a vehicle, there are no specific symptoms in his lower limbs and the provision of a mobility scooter is counterproductive to his continuing rehabilitation, and
(c) the applicant needs to be walking as much as possible to prevent an increase in his weight and maintain his core strength.
Submissions
Counsel made detailed oral submissions which were recorded on transcript. I do not propose to recount those submissions in detail. A copy of the recording and transcript will be made available on request.
At the hearing, on behalf of the respondent, Mr Grimes:
(a) confirmed that the respondent accepts liability for the injury;
(b) stated that the respondent concedes that a mobility scooter is either or both an “artificial aid” or “curative apparatus” and accordingly falls within the definition of “medical or related treatment” in s 59 of the 1987 Act, and
(c) stated that the respondent concedes that payment of the claimed compensation is not limited by s 59A of the 1987 Act as the relevant compensation period has not expired.
Both counsel accepted that the sole issue in dispute is whether the mobility scooter is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.
Both counsel accepted that the principles relevant to whether the mobility scooter is reasonably necessary are those set out in Diab v NRMA Ltd[1], Roche DP, referring to the decision in Rose v Health Commission (NSW).[2]
[1] [2014] NSWWCCPD 72.
[2] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Both counsel addressed various factual and medical evidence relevant to various matters set out in those decisions.
On behalf of the applicant, Mr Stanton submitted that having regard to the evidence as a whole, the Commission should be satisfied that a mobility scooter is reasonably necessary as a result of the injury.
On behalf of the respondent, Mr Grimes submitted that having regard to the evidence as a whole, the Commission should be satisfied that a mobility scooter is reasonably necessary as a result of the injury.
I have considered counsel’s submissions in assessing the evidence below.
FINDINGS AND REASONS
The law
Section 60 of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Is the treatment medical or related treatment?
The applicant seeks compensation for the cost of mobility scooter in accordance with the request of the applicant’s Nominated Treating Doctor, Dr Tenzin Lhundup.
The respondent concedes that a mobility scooter is either or both an “artificial aid” or “curative apparatus” and accordingly falls within the definition of “medical or related treatment” in s 59 of the 1987 Act.
I am satisfied that a mobility scooter is “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.
Is the treatment reasonably necessary?
In Diab v NRMA Ltd[3], Roche DP, referring to the decision in Rose v Health Commission (NSW),[4] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A-C:
…
3.Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and tis place in the usual medical armoury of treatments for the particular condition.”
[3] [2014] NSWWCCPD 72.
[4] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[5]
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[5] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP found:
“In the context of s 60 the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
I will consider each of those elements separately.
The appropriateness of the treatment
It is not in dispute that the applicant has a lower back injury.
The various treating and independent medical evidence, including diagnostic imaging, indicates degenerative changes in the lower lumbar spine.
The applicant’s evidence is that, as a result of the injury, the applicant experiences ongoing pain and restriction in his lower back, which becomes more severe with activity, including bending, twisting, lifting/carrying, walking long distances and standing for long periods. The applicant’s evidence is that because of the pain and unsteadiness when walking, he has to walk very slowly and carefully and has to stop after a short distance of twenty metres or so. The applicant’s evidence is that the pain causes him to experience unsteadiness when walking, he is concerned about the risk of falling when walking and he uses a walking stick to reduce the risk of him falling when walking. I note that there is no evidence that the applicant has fallen when walking.
The applicant’s Nominated Treating Practitioner, Dr Lhundup, gave evidence that the applicant experiences ongoing pain, has a “crippling walk”, cannot walk without a walking stick and is largely bound to his home.
Dr Damordaran gave evidence that the applicant has chronic pain and imbalance issues.
Dr Kadavil also gave evidence that the applicant had constant low back pain, deteriorated physical function and used a walking stick to help him mobilise.
The respondent did not challenge the applicant’s credibility.
I note that the applicant’s evidence in relation to his disabilities and impairment as a result of the injury is generally consistent with the treating and independent medical evidence in that regard.
On that basis, I accept the applicant’s evidence.
On that basis, I accept that as a result of the injury, the applicant experiences ongoing pain and restriction in his lower back, which becomes more severe with activity, including bending, twisting, lifting/carrying, walking long distances and standing for long periods. I accept that the applicant also experiences unsteadiness when walking.
Further, I accept that such ongoing pain restricts the applicant’s mobility, prevents the applicant from participating in various normal living activities which he previously enjoyed and has resulted in him being more restricted to his home and reliant on other people.
The applicant’s evidence is that he “feels depressed” about the loss of his ability to do normal activities, and that he feels terrible about being stuck at home like a “hermit” and he hates having to be reliant on other people for assistance with mobility.
The applicant’s Nominated Treating Practitioner, Dr Lhundup, gave evidence that the applicant’s inability to walk is “impacting on his mental health... making him more depressed, anxious and unable to sleep at night”.
I note that there is no evidence that the applicant has a formal psychological diagnosis.
The respondent submitted that I cannot make any finding in relation to a psychological diagnosis as no claim has been made by the applicant in that regard.
I do not accept the respondent’s submission in that regard. In any event, I do not make any finding in relation to a psychological diagnosis.
However, having regard to the evidence as a whole, I do accept Dr Lhundup’s evidence that the applicant’s inability to walk as a result of the pain adversely impacts the applicant’s mental health. That is consistent with the applicant’s evidence and, it seems to me, a logical and likely consequence of the significant pain and limitations experienced by the applicant which have severely restricted his mobility and independence.
The applicant’s Nominated Treating Practitioner, Dr Lhundup, expressed the opinion that a mobility scooter would assist the applicant with mobility.
The cost of the treatment
The evidence includes two quotes for a mobility scooter, respectively in the amounts of $5,993 and $6,087.99. I note that the quotes are similar in amount and those quotes have not been challenged by the respondent.
The availability of alternative treatment and its potential effectiveness
The applicant has given evidence in relation to alternatives to assist his mobility.
The applicant stated that he uses a walking stick primarily to reduce the risk of falling over and also to support himself to relieve his back pain. I accept that there is no evidence that the applicant has fallen and, to that extent, the walking stick appears to have been effective. However, the applicant stated that because of the pain and unsteadiness, he walks very slowly and carefully and has to stop after a short distance of 20 metres or so.
The applicant stated that because of his back pain and restriction, he rarely drives a car and most times he is a passenger. The applicant stated that he requires assistance to get in and out of cars and has to rely on family members to assist him.
As I noted above, I accept the applicant’s evidence.
On that basis, I am satisfied that because of his pain and unsteadiness, the mobility provided to the applicant by a walking stick and a car is significantly fettered and restricted. In the case of a walking stick, the applicant has to stop after a short distance of 20 metres or so due to pain and unsteadiness. In the case of a car, the applicant rarely drives and has to rely on others to drive him and to assist him to get in and out of the car. Accordingly, I accept that the walking stick and car do not enable the applicant to have significant independent mobility and the applicant is nevertheless reliant on other people to assist him to travel more than short distances.
The actual or potential effectiveness of the treatment
The applicant’s evidence is that he has trialled using a mobility scooter and found it to be effective to assist his mobility. The applicant’s evidence is that he was able to use the mobility scooter without any assistance, it was much easier for his to get out and about by himself and it gave him some independence and helped to manage the risk of him falling.
Again, I accept the applicant’s evidence in this regard.
There is no evidence to the effect that a mobility scooter would not be effective to assist the applicant’s mobility and reduce the risk of falling.
On that basis, I accept that a mobility scooter is likely to be effective to assist the applicant to gain greater independent mobility and minimise the risk of him falling.
The acceptance by medical experts of the treatment as being appropriate and likely to be effective
The applicant’s independent medical expert, Prof Ghabrial, expressed the opinion that a mobility scooter is reasonably necessary for the applicant to improve his mobility and allow him to get out of the confined spaces of his home as a result of the injury. Prof Ghabrial based his opinion on a consideration of the applicant’s ongoing pain and physical limitations as a result of the injury, and that the applicant’s mobility and activities outside his home was markedly restricted by his painful back. Prof Ghabrial also based his opinion on an understanding that such limited mobility had caused the applicant “severe depression”.
The respondent’s independent medical expert, Dr Bosanquet, expressed the opinion that a mobility scooter is not reasonably necessary for the applicant because of the injury.
Dr Bosanquet based his opinion an understanding that the applicant was able to walk with the use of a walking stick, drive a vehicle and there are no specific lower limb symptoms.
Dr Bosanquet also based his opinion on his opinion that the provision of a mobility scooter is “counter productive to his continuing rehabilitation” and that the applicant needs to walk as much as possible to prevent an increase in his weight and maintain his core strength.In relation to the injury, as I noted above, I am satisfied that the applicant experiences significant ongoing pain and limitations as a result of the injury. That being the case, I do not accept the respondent’s submission that the applicant’s claim is not justified because the pathology is “relatively minor”.
In relation to the degree of mobility provided to the applicant by a walking stick and a car, as I noted above, I am satisfied that such mobility is significantly fettered and restricted because of the applicant’s ongoing pain and unsteadiness. Further, I am satisfied that a walking stick and car do not enable the applicant to have significant independent mobility and the applicant remains reliant on other people to assist him to travel more than short distances.
In relation to whether a mobility scooter is counter-productive to the applicant’s continuing rehabilitation, I note that both Dr Bosanquet and Dr Kadavil recommended that the applicant remain as active as possible. Dr Bosanquet seemed particularly concerned to prevent an increase in the applicant’s weight and to maintain his core strength. However, I note that
Dr Bosanquet expressed an opinion that the applicant’s prognosis was “guarded”. Further,
Dr Bosanquet did not consider that the applicant required any further treatment for the injury. Dr Bosanquet did not expressly consider any potential alternative means for supporting the applicant’s ongoing rehabilitation.In relation to the applicant’s mental health, as noted above, I have not made any finding in relation to a psychological diagnosis, however I do accept that the applicant’s restricted mobility and activities outside his home adversely impacts the applicant’s mental health.
As the applicant’s treating practitioner, I consider that Dr Lhundup is well-placed to have a good understanding of the applicant’s pain, functional limitations and mental health.
Having regard to the various matters that I have set out above, I prefer and accept the evidence of the applicant’s independent medical expert, Prof Ghabrial, and the applicant’s Nominated Treating Practitioner, Dr Lhundup.
Does the need for the treatment arise as a result of a work injury?
I note that there is no dispute as to injury.
CONCLUSION
Having regard to the considerations identified in Diab v NRMA Ltd[6] and Rose v Health Commission (NSW)[7], considering the evidence as a whole and for all of the reasons that I have outlined above, I am satisfied that a mobility scooter is reasonably necessary as a result of the injury.
[6] [2014] NSWWCCPD 72.
[7] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
Accordingly, I find that a mobility scooter is reasonably necessary as a result of the injury.
In the circumstances, it is appropriate to order the respondent to pay the costs of and incidental to a mobility scooter in accordance with s 60 of the 1987 Act.
SUMMARY
In summary, the following findings and orders are made:
The Commission determines:
(a) A mobility scooter is reasonably necessary medical or related treatment pursuant to s 60 of the 1987 Act as a result of a lower back injury sustained by the applicant on 31 August 2019.
The Commission orders:
(b) The Respondent to pay the costs of and incidental to a mobility scooter in accordance with s 60 of the 1987 Act.
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