Singh v David Jones Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Singh v David Jones Pty Ltd [2024] NSWPIC 560
APPLICANT:	Jayson Singh
RESPONDENT:	David Jones Pty Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	9 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury which has resulted in 22% whole person impairment accepted; claim pursuant to section 60 for cost of therapy dog and ancillary expenses; respondent disputed reasonable necessity of proposed treatment; Diab v NRMA Ltd, EMI (Australia) Ltd v Bes and State of New South Wales (Central Coast Local Health District) v Bunce considered; Held – the proposed treatment is reasonably necessary medical treatment as a result of the injury; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987 for the cost of a labrador puppy and reasonably necessary ancillary expenses.

STATEMENT OF REASONS

BACKGROUND

The applicant, Jayson Singh (Mr Singh) was employed by the respondent, David Jones Pty Limited, as a warehouse assistant/forklift driver.
Mr Singh has sustained a psychological injury, deemed to have happened on 29 July 2019.
The applicant apparently made a request on 6 December 2023 for the provision of a therapy dog, although the request is not before me.
On 22 December 2023, the respondent’s insurer, AAI Limited trading as GIO (GIO), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed that the applicant was entitled to the cost of a therapy dog, as the treatment was not reasonably necessary as a result of an injury, as required by ss 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
GIO noted that the applicant had provided a quote from Lacote Labrador Retrievers for the cost of a labrador puppy, at $4,950. The applicant had not provided any medical evidence in support of his request for a therapy dog.
GIO had arranged for Mr Singh to be re-examined by psychiatrist Dr Yajuvendra Bisht and advised that it would review its decision on receipt of Dr Bisht’s report.
On 25 March 2024, GIO issued the applicant with a further notice pursuant to s 78 of the 1998 Act.
GIO disputed liability for the requested “dog therapy treatment” on the grounds that it was not reasonably necessary medical treatment as a result of an injury, as required by ss 59 and 60 of the 1987 Act.
By letter dated 11 April 2024, the applicant’s solicitors requested on his behalf that GIO review its decision, serving medical evidence in support of the claim.
By letter dated 16 May 2024, the applicant’s solicitors again requested that GIO review its decision and served further medical evidence.
By letter dated 2 July 2024, the applicant’s solicitors served further medical evidence on GIO.
There is no evidence that GIO responded to the applicant’s requests that it review its decision.
The applicant lodged an Application to Resolve a Dispute (the Application) on 12 July 2024. The applicant claimed that in the course of his employment between 1 April 2017 and
29 July 2019, he was subjected to bullying and harassment, intimidation, discrimination, and threatening behaviour from management. As a result, he sustained a primary psychological injury, deemed to have been suffered on 29 July 2019.
The applicant claimed the sum of $4,950, being a quote for a labrador puppy, in accordance with the invoice of Lacote Labrador Retrievers.
The respondent lodged its Reply on 2 August 2024.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) the reasonable necessity of the proposed treatment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing on 3 October 2024, by the Teams platform. Mr Morgan of counsel, instructed by Mr Kardum, appeared for the applicant, who was present. Mr Doak of counsel, instructed by Ms Doyle and Ms Necovski, appeared for the respondent. Ms Jones of GIO was present during the conciliation phase but was excused from attendance at the hearing. She remained available to provide instructions had they been required.
The Application was amended without objection to claim, in addition to the cost of a labrador puppy, “reasonably necessary ancillary expenses.”
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) dated 2 September 2024 and attached documents, lodged by the respondent, and
(d)    AALD dated 26 September 2024 and attached documents, lodged by the applicant.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Jayson Singh

Mr Singh’s first statement is dated 15 January 2021. It is not necessary to refer to the entirety of his statement.
The applicant stated that he went off work on 26 August 2019 due to a physical injury. He had not been able to return to work because of his psychological condition.
The applicant spent his time at home thinking about how he was mistreated at work; how his pleas for support had been ignored; and the things that had happened concerning safety, as well as the correct procedures to be followed at work.
The applicant was admitted to Northside West Clinic in or around October 2019, for approximately 45 days. He attended Westmead Hospital in or around March 2020, but was not admitted.
The applicant hallucinated and sometimes heard voices. At times, the voices told him to do things, or said things like, “you are not worth it.” It made him feel very ashamed and embarrassed, and resulted in low self-esteem. When he was in his room, he could see shadows move and was worried there was someone in the room. There were incidents where he felt like there was a command compelling him to go outside.
When the applicant watched television, it seemed like the television was speaking directly to him, or about him. He worried about being physically attacked. When he went outside, he was constantly paranoid that people were spying on him or following him. He felt that people could read his thoughts, and that prevented him leaving home.
The applicant continued to experience hallucinations, delusion, paranoia, depression, fatigue, loss of confidence, low self-esteem, worthlessness, hopelessness, suicidal thoughts, lack of appetite, disturbed sleep, recurring nightmares, anxiety and panic attacks, and was highly irritable. The paranoia and anxiety made it difficult for him to converse with others. He had withdrawn from his friends and family and isolated himself at home.
The applicant found it difficult to communicate because he was constantly battling his inner thoughts and voices. The thought of being near the workplace made him extremely distressed and anxious. He feared people would gossip about him and scrutinise every action and inaction.
The applicant’s relationship with his wife had been severely strained. His wife had become very upset with him and started to fight with him. She would talk about leaving the house or separation, which made him really upset. His relationship with his kids had been negatively affected. He could not look after his baby or son. He never took his son outside because he was afraid to leave the house.
The applicant had lost all motivation to do anything he used to love. He tried to cook once and burnt his right elbow, so was afraid to cook again.
The applicant’s wife rarely left him alone for longer than a few hours because she was afraid of what would happen to him. He refused to attend a friend’s birthday party, although his wife offered him the option of staying in the car.
The applicant could no longer take part in hobbies such as swimming and running. He used to enjoy picnics with friends, but no longer saw or spoke with them.
The applicant’s second statement is dated 2 July 2024.
On 24 July 2023, the applicant discussed with his psychiatrist, Dr Assad Saboor, acquiring a therapy dog to enhance and improve his psychological state and wellbeing, due to his sense of loneliness and need for companionship.
The applicant felt as though the provision of a therapy dog would provide him with companionship and support, which he needed to reduce his anxiety, depression and stress bouts.
The applicant felt in a low mood, soul, uncertain with life and where it would be in years to come. He sought to claim a therapy dog as he hoped this would improve his day to day symptoms.
The applicant’s psychological health was fragile. He had done his best to control his mental health, through management with his treating specialists. His feelings of loss and lack over his life significantly increased when he was alone. He hoped a therapy dog would help give him the companionship he desperately needed to restore some quality in his life.

Medical evidence

Dr John Baker – psychiatrist and Medical Assessor

Dr Baker assessed the applicant on 27 October 2021 and issued a Medical Assessment Certificate (MAC) dated 23 November 2021.
Dr Baker recorded a history of numerous symptoms, including, but not limited to:
·        depressed mood;
·        anhedonia;
·        recurrent intrusive suicidal thoughts without intent to self-harm;
·        depressive distressed ruminations of being unfairly bullied, harassed and targeted;
·        increased social isolation and avoidance of caring for his children and wife;
·        loss of interest in socialising;
·        poor concentration, with inability to perform essential banking or reading;
·        stopping involvement in all family celebrations, and
·        loss of his friendship circle.
Dr Baker diagnosed the applicant with major depressive disorder (MDD) with mood incongruent psychotic features.
Dr Baker assessed the applicant with reference to the psychiatric impairment rating scale (PIRS).
The applicant was placed in PIRS Category 3 for self-care and personal hygiene; Category 3 for social and recreational activities; Category 2 for travel; Category 2 for social functioning; Category 3 for concentration, persistence and pace; and Category 5 for employability.
It is not my intention to refer to all of Dr Baker’s findings.
Dr Baker recorded that the applicant was unable to live independently. The applicant was no longer actively involved in his children’s care or lives. He was not interested in his children. He did not attend temple, being fearful of other attendees spying on him and putting thoughts in his head and had ceased his daily prayer. He no longer socialised in public with his wife, family, or friends.
The applicant was able to leave his home alone. He was preoccupied with being spied on. He reported increased anxiety and fearfulness if asked to leave the house for extended periods and preferred to remain at home.
The applicant’s relationship with his wife was “on the edge” but there had been no separation or domestic violence.
The applicant suffered from intrusive distressing “voices” that impaired his concentration and interfered with his capacity to persist with complex tasks. He could not complete any long documents, and his wife managed the family finances.
The applicant could not work at all, due to his persistent psychotic symptoms.
Dr Baker assessed Mr Singh as having 22% whole person impairment.

Dr Assad Saboor – psychiatrist

On 24 July 2023, Dr Saboor wrote in “strong support” of the applicant acquiring a therapy dog to enhance his wellbeing and quality of life. Dr Saboor “firmly believe[d]” that a therapy dog could be of immense benefit to Mr Singh.
Dr Saboor opined that having a therapy dog would provide the applicant with companionship, and also serve as an invaluable emotional support system. Therapy dogs are trained to provide affection, comfort, and a sense of security to individuals facing emotional and psychological difficulties. They can have a profound effect on mental health, fostering a sense of calm and reducing anxiety and stress.
A therapy dog could also assist the applicant in engaging more actively in social interactions and daily activities, potentially leading to increased confidence and improved overall mood. The routine of caring for a dog could also promote a structured and fulfilling daily life.
Dr Saboor reported that the applicant was responsible and caring. The applicant understood the commitment and responsibilities that came with owning and caring for a therapy dog. He had done research and sought advice on the appropriate breed and temperament that best suited him.
Considering all the benefits a therapy dog could bring, Dr Saboor recommended that the applicant be granted the opportunity to acquire one.
On 29 January 2024, Dr Saboor reported to the applicant’s solicitors.
Dr Saboor opined that therapy dogs, often prescribed as part of animal-assisted therapy (AAT), have been shown to provide emotional support and comfort for those suffering from depression and anxiety. They are not a replacement for traditional therapy or medication. They can complement existing treatment plans and offer unique benefits, such as reducing stress, improving mood, and increasing social interaction.
Dr Saboor was of the opinion that a therapy dog was reasonably necessary treatment. A therapy dog would assist the applicant with the management of his depression and anxiety.
The use of therapy dogs as part of AAT was considered a form of therapeutic treatment by many medical professionals and mental health practitioners. Therapy dogs could provide benefits including emotional support, stress reduction, increased social interaction, and improved mood.
Dr Saboor referred to “numerous studies” that have demonstrated the positive effects of therapy dogs on individuals with conditions including depression, anxiety, post-traumatic stress disorder, autism spectrum disorder, and other mental health challenges. Interacting with a therapy dog can trigger the release of “feel-good hormones” like oxytocin and dopamine, which can help alleviate depression and anxiety symptoms.
Therapy dogs are often included as part of comprehensive treatment plans, alongside interventions such as counselling, medication, and lifestyle modifications. Dr Saboor opined that while therapy dogs are not a standalone treatment, they can complement existing therapies. They are recognised as a valuable and therapeutic treatment for many people struggling with mental health issues.
Dr Saboor again reported to the applicant’s solicitors on 13 September 2024.
Dr Saboor agreed with Dr Bisht that therapy dogs were not part of the RANZCP (Royal Australian and New Zealand College of Psychiatrists) guidelines. However, they were accepted and commonly used to provide emotional support and help patients to participate in daily and social activities, such as going for walks or to the shops.
Dr Saboor provided references to several systematic reviews and meta-analyses that have explored the effect of therapy dogs and other AAT on depression. The findings suggested that while there is moderate evidence supporting the use of therapy dogs for treating depression, further high-quality, large-scale studies were needed to strengthen the evidence base.
Dr Saboor also agreed with Dr Bisht that the evidence regarding the benefits of therapy dogs was limited and not conclusive. However, there is evidence to support therapy dogs as an adjunct therapy.
Dr Saboor opined that whether the treatment was reasonably necessary was subject to interpretation. The treatment had been accepted by some experts and there were patients who had benefited from therapy dogs. Dr Saboor was of the opinion that a therapy dog could be considered as reasonably necessary treatment.
Dr Saboor noted that the proposed treatment was for emotional support. The applicant had been treated with a high dosage of antidepressants, one mood stabiliser, and two antipsychotics. He remained very unwell, and the dog would provide some emotional support. Therefore, Dr Saboor considered it reasonably necessary.
Even if the applicant had reached maximum medical improvement (MMI), Dr Saboor opined that the therapy dog would assist him in providing emotional support and help him with social activities.
Dr Saboor agreed with Dr Bisht that the therapy dog would not arrest or abate the progress of Mr Singh’s condition. The dog was to provide emotional support and help Mr Singh participate in some social activities.

Dr Yajuvendra Bisht – psychiatrist

Dr Bisht reported to GIO on 12 February 2024.
Dr Bisht referred to previous reports that are not in evidence.
The applicant told Dr Bisht that there had not been significant change in his symptoms. They included:
·        frequent recollections of traumatic workplace experiences and preoccupation with physical injury;
·        hypervigilance about similar experiences;
·        feeling anxious/sad while having these recollections/preoccupations;
·        lack of enjoyment in previously pleasurable activities;
·        difficulty sustaining concentration;
·        initial and middle insomnia
·        lack of motivation towards socialising, self-care and hobbies;
·        feeling anxious in day to day situations and being easily startled;
·        persistent flat mood;
·        irritability, and
·        increase in symptoms with reminders of the traumatic workplace experiences.
The applicant went for short walks in his neighbourhood. He did not travel further because he got paranoid about people wanting to harm him. He still heard a woman’s voice, but not every day. When he saw trucks, it reminded him of stressful experiences at the workplace.
The applicant did not communicate with anyone other than his wife, his son, his parents, and his brother, who was in India. He was unable to read more than a few lines or watch a whole episode of a TV series.
When the applicant had tried to cook, he left the gas open, and his wife came to him “fuming.” His parents had been coming from India to support him with house chores and caring for the children.
The applicant required repeated prompting for his grooming and diet and did not manage the finances or shopping. He had been able to travel to familiar places on his own.
The applicant had not had an animal companion since coming to Australia. He said that a dog might help him feel less intimidated in public places. There had been incidents when he heard strangers say derogatory things to him. When he challenged one such person, he was threatened with physical harm.
Dr Bisht recorded the applicant’s treatment. He diagnosed MDD. The applicant’s prognosis was unfavourable, considering the duration of his condition, despite treatment. He had reached MMI and therefore did not require additional treatment. No treatment was likely to bring about significant improvement.
Dr Bisht did not consider a therapy dog was reasonably necessary to assist, manage, or prevent the deterioration of the applicant’s ongoing symptoms.
Dr Bisht opined that there was no evidence of an animal companion being of assistance in managing the symptoms of the applicant’s condition. Somewhat contradictorily, he also opined that although there was some evidence in research studies in favour of a therapy dog in managing the symptoms of MDD, the evidence was not considered to be to the level where a therapy dog would be routinely recommended as treatment for MDD.

Dr Bisht provided a supplementary report on 2 September 2024, having been requested to review the applicant’s medical evidence.
Dr Bisht opined that the fact that a therapy dog was not recommended by the RANZCP guidelines demonstrated that the treatment did not have acceptance by medical experts as likely to be effective.
Dr Bisht noted that Dr Saboor had not provided any reference for his conclusion that the use of therapy dogs as part of AAT was considered therapeutic treatment by many medical professionals and mental health practitioners.
Dr Bisht again indicated his agreement that there was some evidence in favour of the benefit of a therapy dog in managing the symptoms of MDD. However, the evidence was not considered to be to the level where a therapy dog would be recommended as treatment for MDD. Hence, it did not meet the criterion of “reasonably necessary”, that the worker would be better off than not, for having undergone the treatment. The treatment was not recommended as treatment for MDD, as the evidence for efficacy was not considered robust enough, and its potential for effectiveness was not [sic] low.
In addition, Dr Bisht noted that there were several other alternatives, with greater evidence of efficacy than a therapy dog. There was no evidence of an animal companion being of help in the applicant’s case. Dr Bisht did not find evidence that the applicant had previously had a dog as a companion. He reiterated that the applicant had reached MMI, and therefore no treatment was likely to bring about significant improvement.
Dr Bisht did not consider that a therapy dog would “assist to arrest or abate the progress of the condition or alleviate, cure, or remedy the condition limiting the deleterious effects of a condition and restoring health.”
Dr Bisht opined that Dr (Richa) Rastogi had not addressed the “reasonably necessary” criterion.

Mr Carl Nielsen – psychologist

Mr Nielsen reported to the applicant’s solicitors on 20 February 2024.
The applicant had been undergoing psychological therapy since December 2019. His diagnosis was MDD with psychotic features.
“Taking into consideration” Dr Saboor’s recommendation for a therapy dog, Mr Nielsen opined that the treatment was reasonably necessary, in that therapy dogs assist with the alleviation of psychological conditions, “and with the Psychological condition Mr Singh has sustained from his place of employment.”
Mr Nielsen opined that a therapy dog would assist with management of the applicant’s MDD, and it constituted therapeutic treatment, as it would assist with the alleviation of the applicant’s symptoms.
Mr Nielsen opined that a therapy dog would enhance the applicant’s overall quality of life, allowing for increased functioning, including socialisation and exercise. As therapy dogs provide comfort and support, they would assist with the management of the applicant’s symptoms. They help lessen loneliness and assist with mood.

Dr Richa Rastogi – psychiatrist

Dr Rastogi was qualified by the applicant and reported first on 8 April 2024.
Dr Rastogi recorded a consistent history of the applicant’s injury. The applicant ceased work after an incident on 29 July 2019.
The applicant was acutely distressed, felt socially scrutinised, and could not cope at work. He was having suicidal thoughts, feeling trapped, hopeless and worthless. His mental health spiralled down, culminating in a three week admission to Northside West Clinic and treatment by Dr Saboor.
Dr Rastogi noted that the applicant had been diagnosed with MDD with anxiety and remained unfit for work.
The applicant reported being emotionally detached and disconnected. He had become socially withdrawn. He had poor energy levels and amotivation. He had lost desire to do things and felt trapped by anxiety and ruminations. He had no hope, had lost confidence, and struggled to find existence and identity. His life was very mundane and unproductive. He had poor emotional regulation and was very frustrated.
Dr Rastogi recorded that the applicant had tried several medications and CBT (cognitive behavioural therapy) under psychiatric supervision. His depression had been progressive and was entrenched. There was marked anhedonia with poor adaptation. The applicant’s back pain was chronic and reinforcing depression and re-living the trauma.
Dr Rastogi noted Dr Baker’s assessment and diagnosis.
Dr Rastogi recorded that the applicant struggled with self-care and hygiene. His driving was restricted, and he needed frequent breaks. He had stopped sports, was reclusive and isolated, and had lost friendships.
The applicant lacked intimacy, and his relationship was strained, with persistent arguments with his wife and anger at his children. He had poor ability to comprehend and retain information, and his wife managed the finances.
Dr Rastogi diagnosed the applicant with persistent MDD with anxiety. His prognosis was guarded, in a setting of persistent, treatment refractory depression and anxiety, physical deconditioning, and poor vocational prognosis. He was likely to deteriorate psychologically, and relapses were inevitable.
Dr Rastogi opined that a therapy dog, as recommended by Dr Saboor, was reasonably necessary as a result of the applicant’s psychiatric injury.
Dr Rastogi referred to the study “Paws for Thought: A Controlled Study Investigating the Benefits of Interacting with a House-Trained Dog on University Students’ Mood and Anxiety”, which was published online in 2019.
The “results indicated that participants in both conditions experienced a reduction in their anxiety and an improvement in their mood across time, however those who directly interacted with a dog experienced a greater decline in anxiety and improved mood scores.”
Dr Rastogi opined that a therapy dog was considered reasonably necessary to help with social goals, physical activity, a sense of security and purpose, and to foster unconditional love. It would help with companionship and engagement in social goals. Therapy dogs are very intuitive and trained to help with anxiety.
Dr Rastogi further opined that a therapy dog would assist with and enhance the applicant’s quality of life and lifestyle, with the management of his depression, anxiety, and psychotic symptoms. It would give him a purpose, [to] go for walks and engage socially, improve his motivation, and help with companionship. This would give the applicant some structure and provide an invaluable emotional tool.
Dr Rastogi was of the opinion that a therapy dog was considered to be “therapeutic treatment”, for the reasons she had provided. It could assist in preventing further deterioration, as it would give structure, emotional support, push the applicant to do physical exercise and social goals, with interaction, as well as give companionship and a sense of responsibility with purpose.
Therapy dogs could provide comfort in times of acute anxiety and help calm the applicant down. That would help prevent relapse and improve his quality of life.
Dr Rastogi was asked to comment on Dr Bisht’s opinion that the evidence in favour of the benefit of a therapy dog was not considered to be to the level where a therapy dog would be routinely recommended as treatment for MDD.
Dr Rastogi agreed there was no robust evidence but opined that there were enough research studies to indicate therapy dogs could help with severe depression and anxiety. Interacting with therapy dogs can lead to positive emotions and improve overall wellbeing. They provide emotional support and comfort in depressive/anxiety disorder. They are trained to provide physical contact and comfort and interrupt self-harming behaviours. The companionship and unconditional love can be extremely uplifting.
Dr Rastogi also agreed that a therapy dog is not routinely recommended. However, in Mr Singh’s case, he had refractory severe depression and anxiety, with being isolated, and suicidal ideation. A therapy dog could alleviate some of the symptoms and prevent deterioration.
Dr Rastogi did not agree with Dr Bisht’s reasoning, given that the applicant’s treating psychiatrist and psychologist had also recommended and provided a rationale for a therapy dog. She strongly supported a therapy dog for depression in clinical practice.
Dr Rastogi provided a supplementary report dated 22 September 2024.
Dr Rastogi agreed with Dr Bisht that dog therapy was not recommended by RANZCP guidelines. It was “important to note that they are only guidelines.” In clinical practice, as specialists, they had to modify treatments to suit clients’ conditions, as each condition was unique in terms of causation and pathogenesis. A biopsychosocial approach was implemented, and there were literature and systemic reviews supporting that a support dog can provide not only companionship, but a sense of responsibility and emotional comfort, and social interaction.
Dr Rastogi reported that there was also literature to support that dogs especially can be trained to help during periods of anxiety, panic attacks and dissociation in post-traumatic stress disorder/mood disorder; and a companion dog helped with emotional security and grounding. She therefore disagreed with Dr Bisht.
Dr Rastogi referred to several studies. She opined that there was enough literature and meta-analysis supporting the use of therapy dogs for treating depression, although further studies were warranted.
Although there were no conclusive guidelines, Dr Rastogi opined that there is a dearth [sic] of literature and studies in moderate scale that provide reasonable evidence and recommendation to support that therapy dogs can be an inevitable [sic] tool to help depression as part of a biopsychosocial approach.
Dr Rastogi did not agree with Dr Bisht’s “concrete” statements, and needed clarification as to what level of evidence he was seeking for a therapy dog to be recommended.
Dr Rastogi has worked in clinical practice for over two decades, with experience treating patients with depression and complexities. Having observed different modalities of treatment, and the challenges of implementing treatment, she opined, based on clinical interpretation and observations, that therapy dogs could provide an invaluable asset for comfort and relearning attachment with an object, and soothing, which is the core basis for therapy whilst treating depression.
Dr Rastogi noted that depression causes emotional detachment and numbness, affecting interrelatedness. This way of rebuilding those networks, through no threatening relationship with a pet dog, is extremely invaluable. It leads to a better prognosis and outcomes and decreases the risk of impairments.
Dr Rastogi opined that the proposed treatment was neither the alternative nor the only treatment. Dog therapy for depression was complemented with other pharmacological and psychosocial treatment to enhance functioning, improve emotional resilience, and foster a sense of wellbeing. It was important to use a holistic approach. The applicant was on adequate pharmacotherapy and received counselling. There were no alternative treatments available. Dr Rastogi disagreed with Dr Bisht.
Dr Rastogi opined that the fact that the applicant had not previously had a dog did not provide a rationale or make any correlation for not having the benefit of a therapeutic dog for his condition. It would benefit Mr Singh to have a therapy dog for emotional support.
The definition of MMI did not imply that the applicant did not need treatment. His condition had stabilised to a stage that his functioning would not improve by 3%, but he remained at risk of relapse and deterioration if treatment was not offered. He was not in remission. Given he had been on conventional treatment with ongoing impairments and remained at risk of relapse, Dr Rastogi opined that a therapy dog would aid his social stimulation and provide avenues to comfort him.
Dr Rastogi agreed with Dr Bisht that a therapy dog would not abate or arrest the applicant’s condition, or restore his health to remission, as his condition is treatment resistant. It would help him develop social skills, interaction to help with his isolation, give him a purpose and companionship, and prevent deterioration.
The goal of treatment with presentation of chronic depressive disorder is to help maintain remainder functioning, prevent deterioration, and offer avenues to help maintain social links and comfort, rather than have a pessimistic approach to treatment. Dr Rastogi disagreed with Dr Bisht in long term management of chronic depressive disorder.

Dr Eric Lim – general practitioner

Dr Lim reported to the applicant’s solicitors on 2 May 2024.
Dr Lim recorded the applicant’s diagnosis as MDD with psychotic symptoms.
The applicant experienced sleep disturbance and reduced social activities and travel capacity. He had stopped going to temple and attending his children’s social events.
Dr Lim recorded the applicant’s symptoms as being depressed, stressed, anxious, having trouble sleeping, nightmares, helplessness, hallucinations, impaired concentration, forgetfulness, fatigue, lack of motivation, irritability, frustration, social withdrawal, panic attacks, and shortness of breath.
Dr Lim opined that the proposed treatment was reasonably necessary for the following reasons:
·        appropriateness – it sought to alleviate the consequences of the applicant’s condition. It would encourage him to leave the house and walk the dog. It would give him company, as he avoided socialising;
·        alternative treatment – “not to have one”;
·        cost – “not my expertise”;
·        effectiveness – therapy dogs have been shown to improve health and wellbeing, and
·        acceptable – it had been recommended by two psychiatrists.

SUBMISSIONS

The submissions have been recorded. I will therefore summarise the main points.

Applicant

The applicant relied on the decision in Diab v NRMA Ltd[1] and the decisions discussed therein. He submitted that the treatment sought to mollify, ameliorate, or provide relief from, his symptoms, as opposed to being curative. The doctors contemplated management of his condition, and the matter should be looked at through that lens. That was where Dr Bisht’s opinion “falls over”.
[1] [2014] NSWWCCPD 72 (Diab).
The applicant referred to his evidence about his symptoms, the nature of his treatment from 2019, and the consequences for his home and daily life. This is very much what the treatment seeks to address.
The applicant submitted that Dr Baker found that he had a significant psychological condition, with psychotic symptoms. There had been a partial response to treatment, but the applicant still had symptoms.
The applicant relied on the evidence of Dr Saboor. He described Dr Bisht’s evidence of 12 February 2024 as less than helpful, and perhaps not rising to the level of expert opinion on which I could rely. Dr Bisht conceded there was a role for a therapy dog, but it should not be routine. This concession and Dr Saboor’s evidence made the provision of the dog appropriate.
The applicant also relied on Dr Rastogi’s evidence, which he submitted was well-reasoned and made a substantial argument, unlike the “bare bones dismissal” of Dr Bisht.
The applicant submitted that Dr Bisht “falls into the trap” of believing that scientific proof of a fact is needed before it could be found that the treatment was needed.[2] The doctors all conceded there was no robust evidence, but there was enough evidence to suggest the dog would provide assistance. Dr Rastogi properly drew the distinction between absolute scientific proof and enough evidence. Her evidence was that the guidelines were only guidelines.
[2] EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (Bes).
The applicant urged that I accept the opinion of Dr Saboor and relied also on the evidence of Dr Lim and Mr Nielsen.
The applicant finally submitted that I would have little difficulty in finding in his favour, given the detailed analysis of the treating doctors and Dr Rastogi, and the grudging concession by Dr Bisht. An award in his favour would follow.
In reply to the respondent, the applicant submitted that, in essence, there was a medical question, to which I would need to apply the law regarding s 60 of the 1987 Act. The applicant’s long term psychiatrist, independent medical examiner, general practitioner, and psychologist all spoke with one voice.

Respondent

The respondent submitted there was conflict in the evidence regarding whether the applicant had psychotic symptoms, which was important in determining the matter.
The respondent submitted that the details of the proposed purchase did not refer to any specific training, or what the dog was trained to do. Diab and the decisions discussed therein set out the criteria.
The respondent submitted that the definition of “therapeutic” was discussed in State of New South Wales (Central Coast Local Health District) v Bunce.[3] The training of the dog was likely to be an important consideration. The training was not set out in any way that would assist.
[3] [2020] NSWWCCPD 48 (Bunce).
The respondent submitted that Dr Bisht had addressed the test in Bunce, which Dr Saboor, Dr Rastogi, Dr Lim and Mr Nielsen had not. I would not be persuaded by their evidence.
Dr Lim’s evidence was not persuasive and should be given no weight. Mr Nielsen’s report contained no reasoned analysis, and offended the principle in South Western Sydney Area Health Service v Edmonds[4] and the decisions discussed therein. Dr Rastogi opined that, with some unidentified training, dogs could help with anxiety. There was no evidence about training.
[4] [2007] NSWCA 16.
The respondent submitted that the concept of AAT was not defined and there was no evidence about it. There was an absence of evidence that the treatment in this case would be therapeutic. Dr Saboor’s evidence could not provide weight.
The respondent submitted that Dr Lim had diagnosed the applicant with MDD with psychotic symptoms, which was at odds with Dr Saboor’s evidence that the applicant’s psychotic symptoms had resolved. Dr Bisht had recorded that the applicant did not go far from the house because of psychotic symptoms.
The respondent submitted that Dr Rastogi cited studies but provided no detail. There were major reservations about how the studies applied. The dog may provide emotional support and comfort, but the respondent again referred to the findings about “therapeutic” in Bunce.
The respondent submitted that the psychotic aspects of the applicant’s condition were significant social limiters. Dr Bisht’s history that the applicant could travel locally without psychotic issues was significant, as the social aspect was identified as important.
The respondent submitted that social interaction “etc” was not identified as therapeutic. How the treatment would prevent the applicant’s condition from deteriorating was not identified. It was a bare assertion that should be given limited weight.
The respondent submitted that the studies referred to the treatment of depression, cognitive disorder, and the elderly, which did not apply here. Therapy dogs “showed promise”, but more studies were needed.
The respondent submitted that a key plank in the applicant’s case was that there was no need for scientific proof. What was needed was the proper identification of the treatment needed and that it has therapeutic effect, and the test in Bunce was important. The evidence was lacking about training “etc.”
The respondent submitted that the applicant, lacking evidence, relied on scientific studies. There needed to be a restorative aspect, rather than the dog simply keeping the applicant company. His family, which was not distanced from him, could do this.
The respondent finally submitted that the applicant had failed to establish the therapeutic aspect of the treatment, so as to meet the requirements of ss 59 and 60 of the 1987 Act and Bunce. There should therefore be an award for the respondent.

SUMMARY

Section 59 of the 1987 Act defines “medical or related treatment” as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an 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 a 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.”

Section 60 of the 1987 Act 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).
Note: Compensation for domestic assistance is provided for by section 60AA.
(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are-
(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and
(b) if the worker is not reasonably able to travel unescorted-the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.
(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if-
(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or
(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or
(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.
(2B) The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
(2C) The Workers Compensation Guidelines may make provision for or with respect to the following-
(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,
(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,
(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,
(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,
(e) specifying the qualifications or experience that a person requires to be
‘appropriately qualified’ for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).
(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.
(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

The respondent relied on what Deputy President Snell said in Bunce, where Snell DP referred to the decision of Burke CCJ in Rose v Health Commission (NSW).[5]
[5] [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose).
Snell DP quoted this part of Burke CCJ’s decision in Rose:
“…treatment must be reasonable if it is to fall within the purview of the subsection. But that is not solely because of the words ‘reasonably necessary’ but is rather inherent in the concept of ‘treatment’ itself. Treatment is necessarily purposive. Treatment, in the medical or therapeutic context, relates 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. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all…” (Emphasis added).
The respondent referred to the use of the words “…and restoring health” by Burke CCJ in Rose. It submitted that Dr Bisht had addressed the “test” in Bunce, whilst the medical experts on whose evidence the applicant relied had not.
In Rose, following the passage quoted above, Burke CCJ said:
“In that sense, an employer can only be liable for the cost of reasonable treatment. Assuming that a particular treatment has some capacity to alleviate the consequences of injury, is the employer thereby liable to indemnify its cost? He is, if it be reasonably necessary that such treatment be afforded. What is connoted to be ‘reasonably necessary’?” (Emphasis added).
When what Burke CCJ said is taken as a whole, he was referring to the capacity of the proposed treatment to arrest, abate, alleviate, cure or remedy the condition from which the worker suffers.
I do not believe that for treatment to be considered reasonably necessary, it must have the capacity to restore a worker’s health. It is enough that the purpose of the treatment is, for example, to alleviate the symptoms of the condition and improve the patient’s function, or “limit the deleterious effects” of the condition, in the words of Burke CCJ.
The respondent relied largely on the evidence of Dr Bisht, including that the provision of a therapy dog was not recommended by the RANZCP guidelines.
However, a guideline is just that. It does not prescribe the only treatment that may be considered for a particular patient. As Dr Rastogi said, and I accept to be the case, specialists have to modify treatments to suit patients’ conditions, as each condition is unique.
It may be the case that there is not “robust” evidence as to the efficacy of therapy dogs in the treatment of psychological conditions, and Dr Rastogi fairly conceded as much. However, she pointed out there is evidence to support the treatment, and she “strongly supported” a therapy dog for depression in clinical practice.
In Bes, Herron CJ said (at [242]):
“Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me, that no medical witness states with certainty the very issue which the judge himself has to try.”
In this case, there is medical science that is prepared to say it is possible that the provision of a therapy dog will assist in the applicant’s treatment.
I have found little assistance in the evidence of Dr Lim and Mr Nielsen, who have largely adopted the evidence of Dr Saboor and/or Dr Rastogi. However, I do not accept that Drs Saboor and Rastogi failed to address the “test” in Bunce.
I have set out in some detail above the evidence of Drs Saboor, Rastogi, and Bisht.
Dr Saboor has had the advantage of treating the applicant for several years. He is strongly supportive of the proposed treatment. He has referred in his reports to its potential benefits. He was clear that a therapy dog is not a standalone treatment but can complement existing therapies. Dr Rastogi also opined that the treatment would be complemented by other treatment.
Dr Saboor also fairly conceded that the evidence regarding the benefits of therapy dogs is limited and not conclusive. However, the treatment was accepted by some experts, and there were patients who had benefited from it.
I have referred to Dr Rastogi’s response to Dr Bisht’s evidence. She, also, referred in her reports to the potential benefits of the treatment.
The respondent was critical of the lack of detail about the training of the animal, and also submitted that the psychotic aspects of the applicant’s condition were significant social limiters. The respondent also submitted that the applicant’s family could fulfil the position of keeping him company.
I do not regard the lack of evidence about the training of the animal as being determinative. Dr Saboor referred to a dog providing companionship and encouraging engagement in activities. Dr Rastogi provided similar evidence, referring to a companion dog. She opined that a therapy dog could alleviate some of the applicant’s symptoms and prevent deterioration of his condition.
Dr Rastogi, at least, referred to the applicant’s psychotic symptoms and opined that a therapy dog would assist in managing them. Dr Bisht recorded the applicant as saying a dog may help him feel less intimidated in public places, where he had heard strangers say derogatory things about him. I do not regard the fact that the applicant may have psychotic symptoms as militating against the provision of a therapy dog.
While the applicant has a family, there is evidence of friction between him and his wife as a result of his condition. He has lost interest in, and is angry towards, his children. Dr Rastogi referred to the “unconditional love” of a dog.
Dr Bisht referred to the fact that the applicant had not previously had a dog. I do not regard that as evidence that the applicant should not be provided with a dog. If the fact that a patient had not previously had a particular form of treatment was an argument for not providing it, many forms of treatment would not be provided.
It is also in my view not relevant that the applicant has reached MMI. Dr Rastogi has explained what is meant by that term. The applicant had reached MMI when he was assessed by Dr Baker in 2021. It is not suggested that the treatment he has had since then has not been reasonably necessary. I refer again to what Burke CCJ said in Rose about the meaning of treatment.
The applicant relied on the decision of Roche DP in Diab.
Roche DP said in Diab (at [86]):
“Reasonably necessary does not mean ‘absolutely necessary’…If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonable necessity is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment claimed is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply.”
Roche DP referred to the decision of Burke CCJ in Rose, and said (at [88]-[90]):
“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…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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [6]). Thus, it is not simply a matter of asking, as was suggested in Bartolo[7], is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[8] , when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
[6] [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C.
[7] Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233.
[8] [2010] HCA 28.
In my view, Drs Saboor and Rastogi have adequately addressed the matters referred to by Burke CCJ in Rose.
Both Drs Saboor and Rastogi regard the provision of a therapy dog as appropriate in the applicant’s case, and they have provided their reasoning and discussed the possible benefits of the treatment.
The applicant has had considerable alternative treatment, with limited results. His prognosis has been described as “unfavourable “(Dr Bisht) and “guarded” (Dr Rastogi).
The cost of the treatment has been claimed at just under $5,000. There would obviously be further costs of maintaining and probably training the animal, but the respondent has not relied on cost as a reason to dispute liability for its provision.
Both Dr Saboor and Dr Rastogi opine that the treatment has the potential to be effective, and I note Roche DP’s comments in this regard.
Dr Bisht appears to have based his opinion partly on the fact that the applicant has reached MMI and that a therapy dog is not routinely recommended as treatment for MDD or by RANZCP guidelines.
Even Dr Bisht accepted that there was some evidence of the benefit of a therapy dog in managing the symptoms of MDD. However, he opined that it did not meet the criterion of “reasonably necessary”, that is that the applicant would be better off for having undergone the treatment. Roche DP said in Diab that it was not simply a matter of asking this question.
There is acceptance by medical experts Drs Saboor and Rastogi that the treatment is appropriate and likely to be effective.
I prefer the evidence of Drs Saboor and Rastogi to that of Dr Bisht. Each has, in my view, provided well-reasoned evidence and made appropriate concessions. Dr Saboor has the advantage of being the applicant’s long-term treating specialist.
The applicant has established that the treatment is reasonably necessary medical treatment as a result of the injury.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 560

9 October 2024