Satara v Jones Lang La Salle (NSW) Pty Ltd
[2007] NSWWCCPD 104
•1 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Satara v Jones Lang La Salle (NSW) Pty Ltd [2007] NSWWCCPD 104
APPELLANT: Megan Satara
RESPONDENT: Jones Lang La Salle (NSW) Pty Ltd
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC17245-04
DATE OF ARBITRATOR’S DECISION: 16 May 2006
DATE OF APPEAL DECISION: 1 May 2007
SUBJECT MATTER OF DECISION: Workers Compensation Act 1987 Section 60; reasonably necessary medical expenses.
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the Papers
REPRESENTATION: Appellant: Beilby Poulden Costello
Respondent: McCulloch & Buggy
ORDERS MADE ON APPEAL: 1. Paragraph 5 of the Arbitrator’s decision dated 16 May 2006 is revoked and the following order is made in its place:
5. In respect of the section 60 expenses claimed by the Applicant, which are disputed by the Respondent and identified by paragraph numbers in the ‘Respondent’s schedule objections’, I find the following expenses are “reasonably necessary” as a result of the Applicant’s injury as required by section 60 of the 1987 Act: 2, 7(in part), 9, 10, 13, 16 and 17. I find the following expenses are not “reasonably necessary” as a
result of the Applicant’s injury as required by section 60 of the 1987 Act: 1, 3, 4, 5, 6, 7(in part), 11, 12 and 15. (In respect of paragraph 14 [attendance on the general practitioner] such expense is “reasonably necessary” if the expense is adequately particularised and related to the applicant’s injury).
2. The Respondent to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 13 June 2006 Megan Satara (‘Mrs Satara’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 May 2006.
The Respondent to the Appeal is Jones Lang La Salle (NSW) Pty Ltd (‘the Respondent Employer’).
Mrs Satara was born on 20 September 1970. She is 36 years of age.
On 21 February 2002 during an ‘ordinary recess’ from her place of work Mrs Satara, whilst traversing a wheelchair access ramp, slipped and fell. Mrs Satara’s fall was broken by her husband forcibly gripping her left hand and arm, his action placed strain on her left shoulder and neck causing her injury.
What would seem, at first, to have been an innocuous injury has had a devastating effect on Mrs Satara.
Mrs Satara made a claim for compensation and liability was initially accepted by the Respondent Employer. On the 16 September 2004 the Respondent Employer denied further liability in respect of Mrs Satara’s claim.
On 22 October 2004 Mrs Satara lodged an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission.
In that Application Mrs Satara claimed continuing weekly compensation payments from 16 September 2004, on the basis of total incapacity, together with medical, hospital and like expenses.
After the Application was filed in the Commission, a schedule of claimed medical expenses was filed totalling $143,670.59. Attached to the schedule were receipts and accounts supporting the claim.
Mrs Satara’s claim was heard before a Commission Arbitrator on 26 April 2006. The Arbitrator delivered his decision on 16 May 2006. Mrs Satara was successful in her claim. The Arbitrator awarded her weekly compensation on the basis of total incapacity together with reasonably necessary section 60 expenses under the Workers Compensation Act 1987 (‘the 1987 Act’).
Because of the substantial amount of section 60 expenses claimed, the Arbitrator directed the Respondent Employer to file a schedule of objections to individual or groups of items of section 60 expenses. The Respondent employer filed in the Commission, 17 objections to Mrs Satara’s claimed section 60 expenses.
The Arbitrator accepted the Respondent Employer’s objections and found for the Respondent Employer in respect of Mrs Satara’s claimed section 60 expenses as particularised in paragraphs 1 to 13 and 15 to 16 of the Respondent Employers objections. The Arbitrator found for Mrs Satara in respect of the claimed section 60 expenses contained in paragraphs 14 and 17 of the objections.
Mrs Satara seeks leave to appeal the Arbitrator’s decision in respect of the section 60 expenses rejected as not being reasonably necessary.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 16 May 2006 records the Arbitrator’s orders as follows:
“(1)A finding that the Applicant sustained injury during the course of her employment with the Respondent.
(2)A finding that such injury rendered the Applicant totally incapacitated for work.
(3)Respondent to pay the Applicant weekly compensation benefits pursuant to s 37 of the 1987 Act:
From 16 September 2004 to 31 March 2005 the sum of $328.90 per week
From 1 April 2005 to 30 September 2005 the sum of $334.10 per week
From 1 October 2005 to 31 March 2006 the sum of $340.90 per week
From 1 April 2006 to date and continuing the sum of $347.90 per week
(4)Respondent to pay the Applicant’s s 60 “reasonably necessary” expenses.
(5)In respect of the Applicant’s schedule of s 60 expenses in evidence before the Commission I found the following expenses (identified by paragraph numbers in the Respondent’s schedule of objections) are not “reasonably necessary” as required by s 60 of the 1987 Act: Paragraph 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16. (In respect of paragraph 14[attendance upon the general practitioner] such expense is “reasonably necessary” if the expense is adequately particularised and related to the Applicant’s condition).
(6)Respondent to pay the Applicant’s costs as agreed or assessed.
(7)I certify that this is a complex matter, for the purposes of Clause 129 (f) and costs Item 4.10 of Part 4 and Clause 1 (2)(j), and costs Item 9.01 of Part 9, of the Workers Compensation (General) Amendment (Costs) Regulation 2001.”
ISSUES IN DISPUTE
The issue in dispute in the appeal is:
·whether the rejected section 60 expenses claimed by Mrs Satara are “reasonably necessary”.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation that is at issue on appeal in this matter exceeds $5,000.00 such that section 352(2)(a) is satisfied. The actual section 60 expenses claimed were $143,670.59. It is difficult to calculate what percentage of the actual amount awarded is still in issue. The Respondent Employer in their submissions on appeal, concede that the requirements of section 352 0(2) of the 1998 Act have been met. Given this concession I am satisfied that the requirement of section 352(2)(b) is satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
EVIDENCE AND SUBMISSIONS
Evidence
Because of the limited nature of this appeal it is unnecessary to recite the evidence in detail. What is important in order to understand this appeal is the primary finding of the Arbitrator.
The substantial dispute before the Arbitrator was whether Mrs Satara suffered from a disabling medical condition, Complex Regional Pain Syndrome (‘CRPS’).
The Arbitrator in a detailed and well reasoned decision reached the following ultimate conclusion [decision page 17.40]:
“Overall, I prefer the medical explanation of the Applicant’s condition based on the evolution of CRPS into chronic neuropathic pain disorder to the conclusions reached by the AMS in determining the question of permanent impairment. The diagnosis provided by Dr Raymond Garrick and supported by other pre-eminent pain management specialists, appeared to me to be the most logical and medically correct conclusion as to why the Applicant continues to exhibit the symptoms and behavioural patterns observed by a broad field of specialist.”
In coming to this conclusion the Arbitrator has accepted that Mrs Satara has a chronic and disabling medical condition which has necessitated significant past and ongoing medical treatment. She has been taking opiate medication for many years. Mrs Satara has incurred, as a consequence, hospital, medical, medication and treatment expenses.
Before the Arbitration hearing, the Arbitrator directed the parties to exchange submissions in respect of individual or groups of section 60 expenses claimed by Mrs Satara, given the large amount outstanding. The Respondent Employer filed in the Commission, a document which the Arbitrator referred to as the “Respondent’s schedule of objections”. For the sake of clarity I will adopt the Arbitrator’s description of the document. In his decision the Arbitrator identified the groups or individual items claimed under section 60 by Mrs Satara by reference to the Respondent’s schedule of objections. There were many section 60 expenses, which were not disputed by the Respondent Employer, providing Mrs Satara was successful on the primary issue of liability. In respect of these section 60 expenses the Arbitrator made a general order under section 60 of the 1987 Act.
Submissions
As already indicated, the Arbitrator’s decision was well reasoned in respect of the primary liability issue. In his decision the Arbitrator provided reasons as to why he rejected part of Mrs Satara’s claim for section 60 expenses. Mrs Satara submits on appeal, that the Arbitrator did not give sufficient or adequate reasons in respect of that part of his decision, which dealt with her claim for the specific section 60 expenses, as contained in the ‘Respondent’s schedule of objections’. The Respondent Employer, on the other hand, submits on appeal, that the Arbitrator issued directions for the parties to exchange submissions in relation to the section 60 expenses claimed before the Arbitration hearing. The Respondent Employer filed with the Commission, objections to the section 60 expenses, however Mrs Satara did not respond to these objections before the actual hearing. The Respondent Employer submits that in these circumstances, the Arbitrator’s reasons in respect of his rejection of Mrs Satara’s claim for section 60 expenses were adequate, and complied with his legal obligations to give reasons for his decision.
DISCUSSION AND FINDINGS
The question of what is required by a Commission Arbitrator in order to comply with the need to give adequate reasons was considered by Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Stanford [2002] NSWWCCPD 6 (‘Stanford’). At paragraph 45 Deputy President said:-
“The Commission is not a court and its objectives are to provide a dispute resolution process that is fair and cost effective for the parties to a workers compensation dispute. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. The content of statements of reasons for decision reflect this process and should not on review, be “construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287). This is not to say that decisions should not be soundly based nor that the reasons should not be capable of conveying clearly the matters required by Rule 41 (set out above). As Kirby J observed in relation to a decision of the Refugee Review Tribunal in Liang, the decision-maker’s reasons will remain the ‘only insight into the considerations which were, or were not, taken into account in reaching the decision’ (at 291).”
The question as to whether the Arbitrator has provided sufficient reasons, in respect of his award concerning section 60 expenses, needs to be considered in the context of his ultimate decision on liability. As previously noted the Arbitrator determined that Mrs Satara was suffering from CRPS. It follows from that determination that the Arbitrator accepted, by and large, the substantial treatment that Dr Raymond Garrick, in particular, had provided to Mrs Satara. Part of that treatment included the prescribing of significant amounts of medication including opiates. The Respondent Employer’s expert medical evidence in essence disputed that Mrs Satara suffered from is CRPS. Once the Arbitrator determined that Mrs Satara was in fact suffering from CRPS, the Respondent Employer’s medical evidence provided little assistance in determining whether the section 60 expenses were necessary and reasonable. The crucial evidence as to whether the section 60 expenses were reasonable or otherwise, was the evidence of the treating neurologist Dr Raymond Garrick.
The Arbitrator in his ‘reasons for decision’ correctly identified the test to be applied when determining whether section 60 expenses are reasonable or otherwise. He then set out the Respondent Employer’s objections to the section 60 expenses. The Arbitrator’s reasons in respect of the issue on appeal were set out at paragraph 44 of his decision:
“The Applicant had the opportunity to address the objections raised by the Respondent either before the Conciliation/Arbitration hearing on 26 April 2006 or during submissions at the hearing. The Respondent had filed and served its section 60 objections on 16 March 2006, so there was adequate time for the Applicant to prepare a considered response to the objections. The onus of proving that a medical, hospital or related expense is “reasonably necessary” rests with the Applicant. I note that during the submissions dealing with section 60 expenses the Applicant agreed that the claim for expenditure noted in paragraph 1 and 8 of the Respondent’s “objections” (“the objections”) will be withdrawn. The Applicant also asked for a general order in respect of the Applicant’s attendance at her general practitioner.
After considering the Applicant’s submissions on the remaining matters I came to the conclusion that, apart from the Applicant’s submissions on her hospitalisation at St Vincent’s Private Hospital, I was not satisfied on the evidence put before me that the matters noted were “reasonably necessary” in accordance with the provisions of section 60 of the Act. In this regard, I largely support the Respondent Objections.”
Other than the general practitioner’s expenses and the hospital expenses, the Arbitrator did not deal specifically with any of the section 60 expenses claimed, as identified in ‘Respondent’s schedule of objections’. Nor did the Arbitrator consider the evidence of Dr Garrick who, as the treating specialist, was crucial to the issue of reasonableness or otherwise of the section 60 expenses. In the circumstances I am of the view that the Arbitrator, in dealing with the section 60 issue, did not provide adequate reasons. Further, in failing to consider Dr Garrick’s evidence, he failed to consider relevant evidence. I am therefore of the opinion that the Arbitrator’s decision in respect of the section 60 award contained in paragraph 5 of the ‘Certificate of Determination’ should be revoked and re-determined on appeal.
DECISION
The most convenient and efficient way to reconsider Mrs Satara’s section 60 claim, is to deal with the items or groups of items claimed as identified by the paragraphs in the ‘Respondent’s schedule of objections’ (set out at paragraph 43 of the Arbitrator’s ‘Reasons for Decision’). Mrs Satara does not seek to appeal the Arbitrator’s decision in respect of the items claimed, as identified in paragraphs: 1, 8, 14 and 17.
Objection two
Mrs Satara’s claims for prescribed medication, including Naprosyn, prednisolone, Tegretol, Stemetil, Zofran, Motilium, Kenalog and optifast. The Respondent Employer’s objection to these medication expenses are not so much that they are unreasonable, more that they were not particularised and therefore not supported by evidence. Assistance in determining whether these expenses are reasonably necessary is found in Dr Garrick’s evidence as contained in his medical reports. Without reciting all the evidence of Dr Garrick I record the following relevant material:
(i) Report of Dr Raymond Garrick dated 2 October 2002
“She is managing her medication regimen reasonably well on low dose MS Contin.”
(ii) Report Dr Raymond Garrick dated 19 December 2002
“Clearly, she does require an adequate amount of long acting opioid even though she does not like the concept of taking Morphine. Nevertheless, I expect that she will obtain some better control with MS Contin 20mg twice daily and she would probably tolerate a higher dose if needed later.”
(iii) Report of Dr Raymond Garrick dated 7 March 2003
“She has tried a variety of adjuvant drug therapies already. Tricyclic rotation was considered. Her depression has been modified by Cipramil. Neurontin does modify her pain probably more effectively than other antiepileptic drugs, but she is concerned about slight weight gain and alternative, Topamax, might be considered later.”
(iv) Report of Dr Raymond Garrick dated 2 September 2004
“Her medication regimen now stands at:
MS Contin 60mg twice daily Endone 5mg as needed for breakthrough
Lamictal 200mg twice daily pain (maximum 40 per week if possible)
Neurontin 900mg twice daily Deptran 150mg at night
Cipramil 20mg daily Normison and Valium (occasional doses)”
(v) Report of Dr Raymond Garrick dated 13 December 2004
“The long term aim is to reduce her overall medication but at this stage the cocktail of pain modifying drugs and opioids does allow her to save some quality of life”
(vi) Report of Dr Raymond Garrick dated 8 December 2005
“Her depression is reasonably well controlled with Avanza 60mg daily; she has been supported in behavioural techniques by Dr Mark Ryan once again and her weight control has improved substantially with dietary care and with Dr Samaras’ supervision.
Her medication regimen now comprises:
Pregabalin 150mg one morning two at night
MS Contin 60mg morning 80mg at night (option to cut back gradually)
Avanza 30mg two at night
Endone 5mg two as needed for breakthrough pain
Valium 5mg if needed
Coloxyl as needed
Movicol as needed
Metformin 500mg daily
Modifast three times daily
Lamictal tapering gradually by 50mg per day reduction each week”
(vii) Report of Dr Raymond Garrick dated 10 February 2006
“Essentially, she has a complex Neuropathic Pain Syndrome which commenced with typical clinical features of Type I Complex Regional Pain Syndrome with an additional transient Type II component. Over time and with multi-disciplinary management, the chronic features of Complex Regional Pain Syndrome, mainly those of reflex sympathetic dystrophy have been minimised and avoided. Therefore she does not fit with the outdated and inaccurate assessment tables that are used in medico-legal practice. Nevertheless her ongoing clinical pattern is that of a Neuropathic Pain Syndrome with prominent allodynai spread of pain variable restriction of motor functor and mild sympathetic overactivity.
There is little doubt that her treatment is reasonable and necessary: It would be difficult to consider that her management has been unreasonable or unnecessary: lesser treatment may well have allowed her to fulfil the criteria for the AMA Guidelines for CRPS but this would hardly be effective and the patient is encouraged to continue with a gradual mobilising programme. The treatment that the patient is receiving is for Neuropathic Pain which followed immediately after the injury that the patient sustained during her period of employment. There is no history of any form of neuropathic pain or other pain disorder prior to that injury.”
The uncontradicted evidence establishes two relevant matters. Firstly, Mrs Satara’s evidence is that other than the work related medical condition, CRPS, she is suffering from no medical condition which would require ongoing medication. Secondly, the medical evidence establishes, particularly that of Dr Garrick her treating specialist, that for her work related condition, Mrs Satara has been prescribed a ‘cocktail’ of medication which includes: anti-inflammatory medication, pain killing medication, neurological medication, weight loss medication and medication to relieve nausea from the effects of medication therapy. Prima facie therefore, the medication expenses, are related to her work related condition. An examination of the 11 page schedule of incurred or outstanding medical expenses and the supporting documents establishes, that the medication Zofran and Motilium was prescribed at St Vincent’s Private Hospital where she was an inpatient being treated for CRPS. These two medications are, therefore, clearly related to her work injury. The other medications were prescribed by Dr Grieg, Mrs Satara’s general practitioner. These medications are, by and large; painkillers, anti-inflammatory drugs and neurological drugs of the type prescribed by Dr Garrick. As such, I consider the medication expenses contained in paragraph 2 of the Respondent’s schedule of objections are reasonably necessary medical expenses related to the work related condition of CRPS. I therefore allow the medication expenses claimed as set out in paragraph 2 of the Respondent’s schedule of objections as “reasonably necessary” section 60 expenses.
Objection three
Mrs Satara’s claim for the cost of a “heat pack”. There is no medical evidence to support this claim. As such I reject this claim as being a reasonably necessary section 60 expense.
Objection four
Mrs Satara’s claim for meals for herself and her husband whilst she was being treated at St Vincent’s Private Hospital. The meals were consumed at the “Balkan Seafood” and “Pruniers” restaurants. The medical evidence establishes that Mrs Satara has suffered significant emotional stress which has not only affected her but also affected her relationship with her husband. The evidence also reveals that Mrs Satara’s period in St Vincent’s Private Hospital was a particularly stressful period. In determining whether a particular expense is reasonable or not, its therapeutic benefits must be balanced with the costs. The meals may have provided some short-term alleviation of Mrs Satara’s emotional problems; the meals would certainly have had no long-term effect on such a disabling condition as CRPS. On a cost benefit analysis, therefore, I am not persuaded that the claim is reasonable and I reject this claim as being a reasonably necessary section 60 expense.
Objection five
Mrs Satara’s claim for parking expenses to collect prescription medication. Mrs Satara lives at Rozelle, an inner-city suburb. The area is serviced by many pharmacies. In fact the evidence establishes that Mrs Satara does use pharmacies near her suburb. Mrs Satara’s general practitioner is in the MLC Centre. Notwithstanding this fact, I see no reason why Mrs Satara could not have had her prescriptions filled at a pharmacy near her residence thus alleviating the need for substantial parking expenses in the city. I therefore reject Mrs Satara’s claim for parking expenses to collect prescription medication as being a reasonably necessary section 60 expense.
Objection six and fifteen
Mrs Satara’s claim for special pillows. Pillows are items of everyday use, there is no medical evidence specifically dealing with a need for a special pillow. As such I reject this claim as being a reasonably necessary section 60 expense.
Objection seven
Mrs Satara’s claim for taxi expenses. As Mrs Satara has a very debilitating condition it would be difficult for her to attend medical practitioners, relying on public transport, where there is not a direct connection from her residence to the medical practitioner. However, many of the claimed taxi expenses relate to trips to the city to see her general practitioner or to pick up prescriptions. Mrs Satara lives in the inner-city which would only necessitate a short bus ride to reach the city. There is no clear medical evidence that she cannot use public transport. In respect of such a short trip I do not accept, based on the medical evidence, that catching a bus instead of the taxi would cause any significant aggravation of the condition. As such I reject Mrs Satara’s claim for the cost of taxi fares for treatment when travelling to the city, as being a reasonably necessary section 60 expense. In respect of taxi fares for treatment where there was no direct connection by public transport I would allow these expenses as reasonably necessary under section 60 given the severity of her condition.
Objection nine
The cost of a consultation with the gynaecologist. Dr Garrick provides the following evidence in respect of this claim:
(i) Dr Raymond Garrick report dated 28 November 2003
“She has gained a moderate amount of weight and has developed significant abdominal distension likely related to her medical condition, but with Gabapentin the major factor she has also been amenorrheic for a number of months. She feels that her current doses of MS Contin 60mg twice daily and Endone are toward the upper end of her ability to tolerate the drowsiness and constipation.
Her amenorrhoea and abdominal distention was reviewed by Dr Jennifer Dew. No definite abnormality was found on gynaecological examination and an abdominal and pelvic ultrasound examination was normal. There was gaseous bowel distention noted.
I though that Megan’s abdominal distention and weight gain was predominantly related to Neurontin and hopefully this can be gradually reduced as Lamictal is increased over the next 6 weeks to 100mg twice daily. There is published evidence that Lamictal is effective for neuropathic pain and although there are no “head to head” studies, it is probably of similar benefit to Neurontin although mechanisms of action are different. There may be some synergism. Megan has tolerated 75mg Lamictal daily for sufficient time for an allergic reaction to be most unlikely. She should not expect any weight or mood disruption with this agent.”
(ii) Report of Dr Raymond Garrick dated 7 March 2003
“A number of important management issues were covered during her hospitalisation. She saw Jennifer Dew, Gynaecologist, who provided a most helpful gynaecological assessment which you have and she addressed in detail issues of hormonal management and also discussed the issues of reduced libido and apareunia.
She has tried a variety of adjuvant drug therapies already. Tricyclic rotation was considered. Her depression has been modified by Cipramil. Neurontin does modify her pain probably more effectively than other antiepileptic drugs, but she is concerned about slight weight gain and alternative, Topamax, might be considered later.”
This consultation was arranged by Dr Garrick and related to her work related condition, as such, I allow this expense as a reasonably necessary section 60 expense.
Objection 10
Mrs Satara’s claim in respect of a consultation with a dietician. The evidence of Dr Garrick, as set out under objection 9 above, establishes that the weight gain was attributable to the medication prescribed in relation to CRPS, as such, I allow the expense as a reasonably necessary expense.
Objection 11
Mrs Satara’s claims the cost of a “Therapeutic Chair”. There is no medical evidence that this is a reasonable medical or therapeutic expense. In the absence of medical evidence confirming this to be a reasonably necessary medical expense I reject this claim as a reasonably necessary section 60 expense.
Objection 12
Mrs Satara’s claim for hair and beauty expenses whilst at St Vincent’s Private Hospital. For the same reasons that I disallowed Mrs Satara’s claim contained in objection four, I reject this claim as being a reasonably necessary section 60 expense.
Objection 13
Mrs Satara’s claim in respect of attendance upon an Endocrinologist. Dr Garrick referred Mrs Satara to the Endocrinologist because of weight gain resulting from her incapacity and medication intake, as such I am of the view that this is a reasonably necessary section 60 expense, and I allow it.
Objection 16
Mrs Satara’s claim for “Botox” treatment. Dr Garrick referred Mrs Satara for this treatment, for pain relief, because of her work related condition. Dr Garrick is the treating specialist; the evidence establishes that Mrs Satara is suffering from unrelenting pain which is not controlled adequately by medication. I therefore find this claimed expense is a reasonably necessary section 60 expense, and I allow it.
SUMMARY
I find that the following section 60 expenses (identified by the paragraph numbers in the ‘Respondent schedule of objections’) to be reasonable section 60 expenses of the 1987 Act: 2, 7 (in part), 9, 10, 13 and16. The Arbitrator had already allowed as reasonably necessary section 60 expenses, those expenses identified in paragraph 14 and 17. There was no challenge to this finding on appeal. Mrs Satara did not seek to appeal the Arbitrator’s decision in respect of the section 60 expenses identified in paragraphs 1 and 8. I find that Mrs Satara’s claim for section 60 expenses as identified in paragraphs: 3, 4, 5, 6, and 7 (in part), 11, 12 and 15 are not ‘reasonably necessary’ section 60 expenses relating to her work injury.
DECISION
Paragraph 5 of the Arbitrator’s decision dated 16 May 2006 in respect to section 60 expenses is revoked and the following order is made in its place:
5. In respect of the section 60 expenses claimed by the Applicant, which are disputed by the Respondent and identified by paragraph numbers in the ‘Respondent’s schedule objections’, I find the following expenses are “reasonably necessary” as a result of the Applicant’s injury as required by section 60 of the 1987 Act: 2, 7(in part), 9, 10, 13, 16 and 17. I find the following expenses are not “reasonably necessary” as a result of the Applicant’s injury as required by section 60 of the 1987 Act: 1, 3, 4, 5, 6, 7(in part), 11, 12 and 15. (In respect of paragraph 14 [attendant on the general practitioner] such expense is “reasonably necessary” if the expense is adequately particularised and related to the applicant’s injury).
Certificate of Determination
It follows from this decision that the ‘Certificate of Determination’ dated 16 May 2006 as amended by this decision reads as follows:
(1)A finding that the Applicant sustained injury during the course of her employment with the Respondent.
(2)A finding that such injury rendered the Applicant totally incapacitated for work.
(3)Respondent to pay the Applicant weekly compensation benefits pursuant to s 37 of the 1987 Act:
From 16 September 2004 to 31 March 2005 the sum of $328.90 per week
From 1 April 2005 to 30 September 2005 the sum of $334.10 per week
From 1 October 2005 to 31 March 2006 the sum of $340.90 per week
From 1 April 2006 to date and continuing the sum of $347.90 per week(4)Respondent to pay the Applicant’s s 60 “reasonably necessary” expenses.
(5)In respect of the section 60 expenses claimed by the Applicant, which are disputed by the Respondent and identified by paragraph numbers in the ‘Respondent’s schedule objections’, I find the following expenses are “reasonably necessary” as a result of the Applicants injury as required by section 60 of the 1987 Act: 2, 7(in part), 9, 10, 13, 16 and 17. I find the following expenses are not “reasonably necessary” as a result of the Applicant’s injury as required by section 60 of the 1987 Act: 1, 3, 4, 5, 6, 7(in part), 11, 12 and 15. (In respect of paragraph 14 [attendant on the general practitioner] such expense is “reasonably necessary” if the expense is adequately particularised and related to the applicant’s injury).
(6)Respondent to pay the Applicant’s costs as agreed or assessed.
(7)I certify that this is a complex matter, for the purposes of Clause 129 (f) and costs Item 4.10 of Part 4 and Clause 1 (2)(j), and costs Item 9.01 of Part 9, of the Workers Compensation (General) Amendment (Costs) Regulation 2001.”
COSTS
The Respondent to pay the Appellant’s (Mrs Satara’s) costs.
Robert Harrington
Acting Deputy President
1 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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