State of New South Wales (Central Coast Local Health District) v Bunce
[2020] NSWWCCPD 48
•30 July 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | State of New South Wales (Central Coast Local Health District) v Bunce [2020] NSWWCCPD 48 |
| APPELLANT: | State of New South Wales (Central Coast Local Health District) |
| RESPONDENT: | Karen Bunce |
| INSURER: | QBE Treasury Managed Fund |
| FILE NUMBER: | A1-5941/19 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 4 March 2020, amended 20 March 2020 |
| DATE OF APPEAL DECISION: | 30 July 2020 |
| SUBJECT MATTER OF DECISION: | Paragraph (b) of section 59 of the Workers Compensation Act 1987: ‘therapeutic treatment given by direction of a medical practitioner’; an arbitrator’s duty to give adequate reasons |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr E O’Neill, counsel | |
| Bartier Perry | |
| Respondent: | |
| Mr B McManamey, counsel | |
| Law Partners Personal Injury Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s identity is amended to ‘State of New South Wales (Central Coast Local Health District)’. 2. The Arbitrator’s decision dated 20 March 2020 is confirmed. |
INTRODUCTION AND BACKGROUND
Karen Bunce (the respondent) was a registered nurse of many years standing, who worked for the Central Coast Local Health District in the Emergency Department of Gosford Hospital (the hospital).[1] The correct legal identity of her employer for the purposes of these proceedings is the “State of New South Wales (Central Coast Local Health District)” (the appellant). The appellant’s identity is amended accordingly.
[1] Respondent’s statement 16/4/19, [10], Application to Resolve a Dispute (ARD), p 12.
At work on 21 March 2017 there was an incident in which a patient who was in a rage, loud and abusive, came towards the respondent in a corridor of the hospital. The patient was tackled by another staff member and detained by security. The respondent thought she was going to be hurt. The incident triggered reminders of an occasion at work at the hospital in 1999, in which the respondent witnessed a patient beating another to death.[2] The respondent did not initially seek treatment or take time off from work following the incident on 21 March 2017. The respondent suffered a panic attack on 7 April 2017. She saw Dr McDowell, a general practitioner on 10 April 2017. She suffered a severe panic attack on 11 April 2017 while driving with her family to the Easter Show. She was taken to hospital, given medication and advised to cease work.[3]
[2] Associate Professor Robertson’s report 25/1/19, ARD, p 35.
[3] Respondent’s statement, [12]–[20], ARD, pp 12–13.
The respondent was off work for about eight weeks, after which she resumed on restricted hours and duties.[4] She was under the care of Dr Cordowiner, a general practitioner, and Ms Patton, a psychologist. Ms Patton treated the respondent for panic disorder and post-traumatic stress.[5] The appellant’s insurer (the insurer) voluntarily accepted liability for payment of the respondent’s entitlements to weekly compensation, and medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
[4] Transcript of arbitration hearing 7/2/20 (T), T 50.16–27.
[5] Ms Patton’s report 29/4/18, ARD, p 60.
The respondent acquired a dog, “Nala”, in March 2018. The respondent gave it some training from August 2018, with the help of a representative from “mindDogs Australia”, the purpose of which was to train Nala to become an assistance dog.[6] Dr Cordowiner and Ms Patton recommended that the respondent obtain an ‘assistance dog’ to assist with “relief of [her] anxiety and PTSD”.[7] The respondent denied liability to pay for an assistance dog in a s 74 notice dated 8 August 2018 and a s 287A review notice dated 8 October 2018. It denied that an assistance dog was ‘medical or related treatment’ within the definition in s 59 of the 1987 Act. It denied that an assistance dog was “reasonably necessary treatment” pursuant to s 60 of the 1987 Act.[8]
[6] T 56.20–57.34.
[7] Respondent’s statement, [43]–[44], ARD, p 16.
[8] ARD, pp 18–22.
These proceedings were commenced by way of an ARD dated 13 November 2019. The matter was listed for an arbitration hearing on 7 February 2020. Mr McManamey appeared for the respondent and Mr Baker appeared for the appellant. The matter proceeded largely on the papers, although the respondent also gave some relatively short evidence.[9] Counsel addressed and the Arbitrator reserved his decision.
[9] T 50.16–58.28.
The Commission issued a Certificate of Determination dated 4 March 2020 and an Amended Certificate of Determination dated 20 March 2020.[10] The amendment was to correct an error in the paragraph numbering. The Arbitrator found that the supply of an assistance dog was ‘therapeutic treatment’ within the meaning of para (b) of s 59 of the 1987 Act, and that this was reasonably necessary medical treatment. It was ordered that the appellant pay the “cost of and reasonably associated with the provision and maintenance of an assistance dog”.
[10] Bunce v State of New South Wales – Central Coast Local Health District t/as Gosford Hospital [2020] NSWWCC 62 (Reasons).
ON THE PAPERS
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.”
The appellant submits the appeal can be determined on the papers. The respondent submits the appeal can be determined on the papers, although additionally submits the issue is “novel” and an oral hearing may assist. Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. Quantification of the sum at issue on the appeal is not straightforward. The amount sought was described in the ARD as $15,000. The claim was described at the hearing as involving the “training … upkeep and maintenance and all the costs of having a dog”. Counsel at the arbitration hearing agreed the amount at stake “exceeds $5,000”.[11] The appellant’s submissions refer to this consensus.[12] The respondent’s submissions on this appeal state “[t]here is no dispute that the Appeal satisfies the monetary thresholds”. I am satisfied the requirements of s 352(3) of the 1998 Act are satisfied.
[11] T 3.2–13.
[12] Appellant’s submissions, [4]–[5].
THE ARBITRATOR’S REASONS
The Arbitrator stated:
“The parties agree that the following issues remain in dispute:
(a) is the provision of an assistance dog medical treatment within the definition provided by s 59 of the Workers Compensation Act1987 (the 1987 Act), and
(b) if so, is such provision reasonably necessary.”[13]
[13] Reasons, [3].
These questions were both answered in the affirmative. It is only the answer to the first of these questions which is challenged on this appeal.
The Arbitrator summarised both the statement[14] and the oral evidence[15] of the respondent. He summarised the reports of Ms Bell (an occupational therapist).[16] The Arbitrator referred to the opinion of Dr Cordowiner (the respondent’s general practitioner) that the doctor strongly supported the respondent’s need for an assistance dog in her treatment; the doctor described the assistance dog as “a medical treatment tool”.[17] The Arbitrator summarised the reports of Ms Patton (the respondent’s treating psychologist). Ms Patton recommended “that a service dog be included as treatment, to address [the respondent’s] workplace injury”.[18] The Arbitrator summarised the report of Associate Professor Robertson, a consultant psychiatrist qualified by the respondent’s solicitors.[19] The Associate Professor referred to varying views in studies of the efficacy of companion animals as therapy. He noted “other studies which demonstrated that there was some support for the proposition that companion animals were a beneficial form of therapy”. He said that he had “taken a pragmatic view that provision of a[n] assistance dog appears to have enabled this patient to re-engage with employment and improve on her clinical progress”.
[14] Reasons, [10]–[13].
[15] Reasons, [14]–17].
[16] Reasons, [19]–[24].
[17] Reasons, [25].
[18] Reasons, [26].
[19] Reasons, [27]–[38].
The Arbitrator referred to the report of Dr Ng, a consultant psychiatrist qualified by the appellant. Dr Ng had not examined the respondent. Dr Ng referred to various studies on the topic of using service dogs in the treatment of psychological disorders. He described it as “a very attractive idea”, but “not mainstream accepted medical practice”. He said there was “no solid evidence base to suggest that service or companion dogs are markedly effective”. Dr Ng also said that the presence of an assistance dog in an emergency department would be “just not practical”.[20]
[20] Reasons, [39]–[52].
The Arbitrator briefly summarised a report of Recare Services, a firm of occupational therapists. The Arbitrator referred to a quote from Ms Eve McKenzie, who was certified in dog training and was a behaviour consultant with “Dogaholics”. The Arbitrator referred to an estimate of the costs of training a dog, which he described as $4,625 for one year and $7,875 for two years.[21]
[21] Reasons, [53]–[57]. See also ARD, pp 283–287.
The Arbitrator summarised the submissions of counsel. These mainly related to the issue of whether the treatment was reasonably necessary, the findings in relation to which are not challenged on this appeal. The Arbitrator referred to an arbitral decision of Parsons v Corrective Services,[22] in which an award was made for the provision of an assistance dog as reasonably necessary medical treatment. Mr Baker, the appellant’s counsel, submitted to the Arbitrator that Parsons was distinguishable, as whether an assistance dog was ‘therapeutic treatment’ within the meaning of para (b) of s 59 of the 1987 Act had not been raised as an issue in the earlier decision. The Arbitrator noted the appellant’s reliance on Western Suburbs Leagues Club v Everill,[23] as supporting an argument that the respondent’s claim did not relate to ‘medical treatment’.[24]
[22] [2018] NSWWCC 227 (Parsons).
[23] [2001] NSWCA 56 (Everill).
[24] Reasons, [72]–[73].
The Arbitrator referred to the submissions of the respondent’s counsel. He said Mr McManamey accepted that the definition of ‘medical or related treatment’ in paras (a) to (g) of s 59 of the 1987 Act were “exhaustive and determinative”. The Arbitrator said that the respondent accepted the relevant paragraph of s 59 governing provision of an assistance dog was ‘therapeutic treatment’ in para (b). The respondent submitted a psychologist was a ‘medical practitioner’ as required by para (b). Ms Patton had a provider number, described in her report dated 26 August 2018.[25] The respondent submitted the provider number related to the provisions of the Commonwealth Income Tax Assessment Act 1970 which included the current Medicare provisions, in respect of which the provider number was issued. The Arbitrator also noted Ms Bell’s report supplied a definition of an assistance dog from the Commonwealth Disability Discrimination Act 1992, and such a dog can be taken to the workplace much like a seeing eye dog.[26]
[25] ARD, p 32.
[26] Reasons, [76]–[79].
The Arbitrator set out relevant provisions of s 60 of the 1987 Act. He quoted from the decision of Roche DP in Diab v NRMA Ltd[27] dealing with the issue of whether medical or related treatment is ‘reasonably necessary’. He discussed, at some length, the evidence and submissions dealing with whether provision of the assistance dog was reasonably necessary.[28] The Arbitrator concluded:
“Seen in that context, the evidence of the medical experts is unanimous that the proposed treatment was appropriate, and likely to be effective – indeed was actually effective.
Accordingly I would find that the proposed treatment was reasonably necessary.”[29]
[27] [2014] NSWWCCPD 72.
[28] Reasons, [82]–[96].
[29] Reasons, [97]–[98].
The Arbitrator then dealt with whether provision of the assistance dog fell within s 59 of the 1987 Act, which section he quoted in part. He said it was agreed that the only part of the definition within which provision of the assistance dog could fall was para (b), “therapeutic treatment given by direction of a medical practitioner”. The appellant submitted that Ms Patton, a psychologist, gave the direction and she was not a ‘medical practitioner’. The Arbitrator said that Mr Baker had submitted that Ms Patton was not authorised to give prescriptive medication, although no authority was given for that proposition. The Arbitrator said that ‘medical practitioner’ was not defined in either the 1987 or the 1998 Act.
The Arbitrator referred to the definition of ‘medical practitioner’ referred to by Burke CCJ in Bartolo v Western Sydney Area Health Service:[30]
“‘Medical practitioner’ is defined to mean a medical practitioner registered under the law of a State or Territory of the Commonwealth.”
[30] [1997] NSWCC 1 (Bartolo).
The Arbitrator said his Honour had not referred to authority for the proposition, and “it may be that such a definition is no longer apposite”. He referred to the discussion in Bartolo of the term ‘direction’. He said that it was the letter of Ms Patton dated 7 March 2018 with which the respondent made her claim, and therefore it was Ms Patton who gave the direction.[31] He said:
“I accept that the provider number supplied by Ms Patton is an indication that she was duly registered pursuant to the Commonwealth Income Tax Assessment Act 1970 for the purposes of psychological treatment under the Medicare system, and that I can infer that she was a medical practitioner for the purposes of s 59(b).”[32]
[31] Reasons, [103].
[32] Reasons, [104].
The Arbitrator said he was satisfied the treatment involving an assistance dog was ‘therapeutic’, “all the medical professionals agreed”.[33] The Arbitrator noted that, in the arbitral decision of Parsons, the only issue was whether the provision of an assistance dog was ‘reasonably necessary’. The Arbitrator, in that matter, expressed the view that, had it been in issue, he would not have been satisfied that provision of a dog was ‘medical or related treatment’ within the meaning of s 59 of the 1987 Act.[34] The Arbitrator in the current matter stated that he disagreed with this, as para (b) defines ‘therapeutic treatment’ as a form of medical treatment, subject to the proviso regarding direction.[35]
[33] Reasons, [105].
[34] Parsons, [32]–[33].
[35] Reasons, [106]–[107].
The Arbitrator made the findings and order described at [6] above.
LEGISLATION
The definition of ‘medical or related treatment’ in s 59 of the 1987 Act provides:
“medical or related treatment includes—
(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(1) 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.”
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Arbitrator erred at law in finding that an assistance dog constituted therapeutic treatment for the purpose of satisfying the definition of medical or related treatment pursuant to s 59 of the 1987 Act. (Ground No. 1)
(b) The Arbitrator erred at law in failing to give adequate and/or sufficient reasons for the finding that the provision and maintenance of an assistance dog was therapeutic treatment for the purpose of s 59(b) of the 1987 Act. (Ground No. 2)
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[36] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[37] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[38]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[39]
[36] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[37] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[38] [1996] HCA 140; 140 ALR 227.
[39] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[40] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[41]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[42]
[40] [2017] NSWWCCPD 5, [67].
[41] [2001] FCA 1833, [28].
[42] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[43] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[44]
[43] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[44] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[45] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[46]
GROUND NO. 1
[45] [2020] NSWCA 54 (Hill).
[46] Hill, [20].
Appellant’s submissions
It was common ground at the arbitration hearing that if the assistance dog was to fall within the definition of ‘medical or related treatment’ in s 59 of the 1987 Act, it would only be on the basis of para (b), “therapeutic treatment given by direction of a medical practitioner”.[47]
[47] Reasons, [100], appellant’s submissions, [16].
The appellant refers to the respondent’s submissions before the Arbitrator: s 59 of the 1987 Act relevantly refers to “therapeutic treatment by direction, and not medical treatment by direction”. The respondent submitted that anything “designed to ameliorate a condition fell within the parameters of therapeutic treatment”. The Arbitrator reasoned that there was “no requirement for therapeutic treatment to be medically based, provided that it performed a therapeutic role”. The appellant argues the Arbitrator fell into error when interpreting s 59(b) in this fashion.[48]
[48] Appellant’s submissions, [19]–[21], referring to Reasons, [105].
The appellant refers to the decision of Neilsen CCJ in Woollahra Council v Beck,[49] a claim by a worker, whose injury resulted in amputation of the legs, for the cost of taxi travel to a hotel for social purposes. The worker succeeded on the basis that the taxi travel fell within s 59(e) (curative apparatus). His Honour, dealing with an alternative argument that this claim fell within s 59(b), said that he could not categorise transportation by taxi as “‘treatment given’ to the worker”. That phrase indicated the worker was to be “the (mainly) passive recipient of some other person’s ministrations”.[50] The appellant submits the taxi travel, like the provision of an assistance dog, was a means to a therapeutic end. This does not mean it constitutes ‘therapeutic treatment’. It is better described as an ‘external aid’ as opposed to ‘treatment’.[51]
[49] [1996] NSWCC 43; 14 NSWCCR 179 (Beck).
[50] Appellant’s submissions, [22]–[23].
[51] Appellant’s submissions, [24]–[27].
The appellant quotes the following passage from Rose v Health Commission (NSW) in which Burke CCJ said:
“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.”[52]
[52] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
The appellant, relying on Beck and Rose, submits that to satisfy the definition of ‘therapeutic treatment given’, “it must involve the provision of a service pertaining to medication, surgery or other medical service”.[53]
[53] Appellant’s submissions, [29].
The appellant refers to Everill, a case involving a claim for the cost of domestic assistance. The definition of ‘medical or related treatment’ did not, at that time, include ‘domestic assistance services’. The worker in that case sought to come within para (f) of the definition in s 59, which covered “care of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity”. The appellant refers to the judgment of Handley JA. His Honour said that the definition of ‘medical or related treatment’ in s 59 of the 1987 Act was “exhaustive”, and that the various paragraphs in s 59 were to be “understood in the context of the phrase ‘medical or related treatment’ which is being defined”.[54] His Honour said that a need for the services was not, on its own, sufficient to lead to an allowance of their cost, it was also necessary that the services involve “care of a worker”. His Honour said that Parliament could have conferred a right to recover the cost of domestic assistance had that been its intention. Paragraph (f) should not be understood as conferring such a right, unless the domestic assistance can be characterised as “care of a worker”.[55]
[54] Everill, [6].
[55] Everill, [23]–[25].
The appellant submits that, consistent with Everill, the therapeutic treatment must be “of a medical or related nature”. The provision of the assistance dog was not medical in nature, it could not come within the definition of ‘medical or related treatment’. The appellant submits the fact that the Arbitrator’s award provides for the maintenance of the assistance dog is a “clear indicator that it is not treatment for the purpose of s 59(b)” (reference is made to Beck).
Respondent’s submissions
The respondent submits the challenge to the decision is restricted to the issue of whether the provision of an assistance dog was ‘therapeutic treatment’. It states its submissions are limited to this issue.[56]
[56] Respondent’s submissions, [3].
The respondent says the appellant, on appeal, argues that the term ‘therapeutic treatment’ should be limited to the provision of a service, relying on Beck and Rose. The respondent notes the appellant’s then counsel referred to the arbitral decision of Parsons. The respondent submits the appellant, at the arbitration hearing, did not refer to the decisions in Beck or Rose, and did not submit on the meaning of the term ‘treatment’. The Arbitrator did not err in failing to consider matters that were not raised before him.[57]
[57] Respondent’s submissions, [1]–[3].
The respondent submits the provision of an assistance dog can be ‘therapeutic treatment’ in any event. The appellant’s submissions at [24] concede provision of the assistance dog “facilitated the [r]espondent increasing her functionality, including driving further and generally allowing her to continue her day to day life to the greatest capacity”. Provision of the dog “played an active role in reducing the symptomatology and has progressed any recovery”. It is submitted the “dog was not merely therapeutic, it is curative”. The respondent submits that, on that basis, “the only question is whether the provision of the assistance dog was treatment”.[58]
[58] Respondent’s submissions, [4]–[7].
The respondent refers to the definition of treatment in the Shorter Oxford Dictionary (3rd ed) on which Neilson CCJ relied in Beck:
“Management in the application of the remedies; medical or surgical application or service[s].”
The respondent refers also to the definitions of ‘treatment’ in the Cambridge Dictionary and the Collins Dictionary. The respondent submits the common feature of the definitions is that they “can involve a wide range of modalities, so long as it is directed to the management of the consequences of injury or disease”. The respondent submits:
“There is no warrant limiting the meaning of ‘treatment’ to the provision of a service. It can include the provision of goods such as medicines, prostheses, surgical implants in the form of joint replacement, artificial valves or stents.” [59]
[59] Respondent’s submissions, [12].
The respondent submits the decision of Burke CCJ in Rose does not support the proposition that treatment is limited to services. Matters accepted as ‘treatment’ included the supply of medicines or medical supplies. His Honour rejected some aspects of the claim in that matter, but on the basis that they were not reasonably necessary or did not result from injury, not that they did not fall within the definition of ‘treatment’. The respondent submits that when Rose is read in its totality it does not support the contention made by the appellant.[60]
[60] Respondent’s submissions, [21]–[22].
The respondent submits the definition of ‘medical or related treatment’ in s 59 should be read as a whole. It is apparent that the definition includes a number of items that cannot be described as services. Paragraph (d) provides for crutches, artificial members, eyes or teeth, and other artificial aids or spectacles. Paragraph (e) provides for nursing, medical or surgical supplies or curative apparatus. These are goods, not services. Paragraph (g) provides that medical or related treatment also includes the modification of a worker’s home or vehicle directed by a medical practitioner. It would be inconsistent to read down the term ‘treatment’ to mean only services. Paragraph (b) refers to ‘therapeutic treatment’, not ‘therapeutic services’.[61]
[61] Respondent’s submissions, [13]–[14].
The respondent in its submission to the Arbitrator, submitted that para (b) was inserted by the Workers Compensation Amendment Act 1970, an amending Act that was beneficial in nature and provided for “a wide raft of additional benefits”. The respondent submits the usual meaning of the word ‘treatment’ covers a wide range of goods and services. If there is any ambiguity, the definition should be given its widest and most beneficial meaning.[62]
[62] Respondent’s submissions, [14]–[15].
The respondent submits Beck is distinguishable. That case involved the provision of taxi services to an amputee who had lost his legs, to assist him to attend social activities. The purpose of the taxi service was not to treat the injury, unlike the current matter. The two are “fundamentally different”.[63] The respondent described the logic in Beck as “hard to follow”. She refers to Rose. It is submitted Burke CCJ, in Rose, referred to the legislation and applicable authorities. The respondent says that his Honour did not consider that ‘treatment’ was limited to services, as it relevantly included the supply of medicines or surgical supplies. The respondent quotes the following passage from Rose:
“… broadly then, treatment that is given by the direction of a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.”[64]
[63] Respondent’s submissions, [17]–[18].
[64] Rose at 47E, referred to in respondent’s submissions, [20]–[21].
The respondent submits provision of the assistance dog was intended to reduce the symptoms and incapacitating effects of injury. This proved successful. Provision of the dog falls within the ordinary meaning of the word ‘treatment’, and its meaning within s 59.[65]
Consideration
[65] Respondent’s submissions, [23].
Whether the argument based on the definition in paragraph (b) of section 59 was raised
The appellant submits the provision of an assistance dog did not fall within the definition of ‘therapeutic treatment’ and refers to Beck and Rose in support of this. The respondent argues the appellant did not raise this at first instance and should not be allowed to do so on appeal. It is appropriate to deal with this at the outset.
At the arbitration hearing the appellant noted there was an issue regarding whether provision of an assistance dog fell within the definition of ‘medical and related treatment’ in s 59 of the 1987 Act.[66] It suggested the “only possible definition of assistance could be 59(b)”.[67] It submitted the assistance dog was “not medical treatment at all” under para (b).[68] After referring to what he identified as deficiencies in the respondent’s medical case on the topic, the appellant’s counsel submitted, dealing with the provision of an assistance dog:
“…does it represent the medical treatment definition, or does it fit it, and that’s the point I’m trying to make, it does not.”[69]
[66] T 4.4–9.
[67] T 8.10–15.
[68] T 11.23–24.
[69] T 23.25–28.
A copy of the arbitral decision in Parsons was attached to the ARD.[70] The appellant’s counsel addressed the Arbitrator on that decision.[71] This included reference to the decision of the Court of Appeal in Everill, which was raised in Parsons. The appellant’s counsel at the arbitration hearing quoted the following passage from Everill:
“Section 59 contains in terms an inclusive definition of medical or related treatment, but its settled interpretation and that of its predecessor in s 10(2) of the 1926 Act is that the definition is exhaustive. See Our Lady of Loretto Nursing Home v Olsen [2000] NSWCA 12; (2000) 19 NSWCCR 465 CA, and the cases there cited. Moreover authority in the Compensation Court establishes that the various paragraphs, including para (f), are themselves to be understood in the context of the phrase ‘medical or related treatment’ which is being defined.”[72]
[70] ARD, pp 1–9.
[71] T 31.24–36.11.
[72] Everill (per Handley JA, Priestley and Meagher JJA agreeing), [6].
The Arbitrator in Parsons indicated that he would not allow the employer to contest whether an assistance dog fell within the definition of ‘medical or related treatment’, as it had not raised that issue in its dispute notices. The issue in that case was accordingly restricted to whether the provision of the assistance dog was reasonably necessary,[73] which was decided in the worker’s favour. The Arbitrator in Parsons also said:
“In my view, because of Everill ‘medical or related treatment’ is treatment of a medical or related nature so that the therapeutic treatment must be treatment of a medical or related nature. In the absence of prior case authority confirming the view that provision of a dog was medical or related treatment, I think that I could not be satisfied that it is medical or related treatment within the context of the wider definition referred to by Everill.”
[73] Parsons, [22]–[25].
The appellant’s counsel addressed the Arbitrator saying:
“… consistent with Mr Justice Handley in the matter of Everill and the determination or the adoption of that by Mr Young in the matter of Parsons, you would not be satisfied on the balance of probabilities that the [respondent] has established that this is reasonable – sorry, is related medical treatment.”[74]
[74] T 36.5–11.
It is apparent from the above that the appellant addressed the issue of whether the provision of an assistance dog fell within the definition of ‘medical or related treatment’ in s 59 and did so by reference to Everill. The appellant did not raise, at the arbitration hearing, any argument based on Beck, that ‘treatment’ involved a worker being “the (mainly) passive recipient of some other person’s ministrations”. It did not raise an argument based on Beck and Rose that ‘therapeutic treatment’ must involve “the provision of a service pertaining to medication, surgery or other medical service”.
In Mamo v Surace it was said:
“A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (at 7 - 8) per Gibbs CJ, Wilson, Brennan and Dawson JJ; approving University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 (at 483); Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598.”[75]
[75] [2014] NSWCA 58 (per McColl JA, Ward JA and Tobias AJA agreeing), [75].
In Super Retail Group Services Pty Ltd v Uelese Roche DP said:
“As the Commission has attempted to explain in dozens of decisions, and as s 352(5) makes express, appeals against a decision by an Arbitrator are not a ‘review or new hearing’. Nor are they a rehearing. They are restricted to the identification and correction of error. Arbitrations are not a trial run where the parties can await the outcome and then decide to run new issues on appeal.”[76]
[76] [2016] NSWWCCPD 4, [92].
The appellant is not, in the circumstances, permitted to raise these fresh arguments on appeal.
I note that Ground No. 1 involves an issue of statutory interpretation.[77] I note that the respondent has had an opportunity to respond to the arguments on appeal, including those not raised at first instance.[78] In case I am in error in the approach I have taken to whether these fresh arguments can be raised on appeal, I will deal with the arguments (to the extent to which they are raised on the submissions) on their merits, in the context of the broader issue regarding whether provision of an assistance dog falls within para (b) of s 59.
[77] Coleman v Power [2004] HCA 39; 220 CLR 1; 209 ALR 182; 78 ALJR 1166, [243].
[78] Piras v Egan [2008] NSWCA 59, [174].
Therapeutic treatment
The respondent states there is no dispute that provision of the dog was therapeutic; the appellant’s submission at [24] conceded provision of the dog “facilitated the [r]espondent increasing her functionality”. I accept this is an available and appropriate interpretation of the concession inherent in the appellant’s submission at [24].
The appellant argues provision of the assistance dog does not constitute ‘treatment’, referring particularly to Beck and Rose.
In Rose Burke CCJ, dealing with the term ‘treatment’, said:
“… 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.”
The respondent’s submission that the decision in Rose extended to an award for the provision of medicines or medical supplies is correct. The treatment the subject of the award in that case was not restricted solely to services.
The respondent submits it is inappropriate to confine ‘medical or related treatment’ to the provision of a service. Section 59 provides that “medical or related treatment includes …” and then sets out the various paragraphs (a) to (h). The content of those paragraphs necessarily falls within the broad definition of ‘medical or related treatment’. The respondent submits there are a number of items “which are goods not services”. Paragraph (d) provides for the provision of “crutches, artificial members, eyes or teeth and other artificial aids or spectacles”. Paragraph (e) provides for “nursing, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment”. Paragraph (g) provides for modification of a worker’s home or vehicle. The respondent submits the section should be read as a whole. It would be inconsistent to read down the term ‘treatment’ to mean only services. The respondent submits the legislature has not confined the term in that way.[79] This submission is consistent with the structure of the section.
[79] Respondent’s submissions, [13]–[14].
A number of the paragraphs in s 59 clearly relate to matters that are not services, yet by the terms of the definition they constitute ‘medical or related treatment’. In Craig Williamson Pty Ltd v Barrowcliff Hodges J stated:
“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”[80]
[80] [1915] VLR 450 at 452. See also Registrar of Titles (WA) v Franzon [1975] HCA 41; 132 CLR 611, [11], Pearce and Geddes, Statutory Interpretation in Australia, 8th ed., p 151.
In Beck it was accepted that providing the worker with social activities was ‘therapeutic’. His Honour then identified a dictionary meaning of the word ‘treatment’: “management in the application of remedies; medical or surgical application or service”. The respondent makes the point that this definition “covers a range of modalities”. The respondent refers to two other dictionary definitions:
“The use of drugs, exercises et cetera to improve the condition of an ill or injured person, or to cure a disease.” (Cambridge Dictionary)
“Treatment is medical attention given to a sick or injured person or animal.” (Collins Dictionary)
The respondent submits these definitions, as a common feature, can involve a wide range of modalities, directed to the management of the consequences of injury or disease. The definition from the Collins Dictionary restricts itself to “medical attention”. This is plainly too restrictive in the context of the section and would not catch a number of the matters specifically referred to in s 59. The definition from the Cambridge Dictionary describes the purpose of ‘treatment’ (“to improve the condition of an ill or injured person, or to cure a disease”). Given its use of the term “et cetera” it does not much assist in identifying matters that constitute ‘treatment’.
There have been many recent instances of appellate courts doubting the utility of dictionary definitions in the task of statutory interpretation. In State of New South Wales v Chapman-Davis[81] Gleeson JA (McColl JA agreeing) said:
“… there are limitations on the use of dictionary definitions in statutory construction. Dictionary definitions specify a range of meanings, rather than the particular meaning of the word in its context in a statute. The unhelpfulness of relying on dictionary definitions for statutory meaning has been reiterated recently in this Court: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409 at [81] (Leeming JA); TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 at [80] (Leeming JA, Beazley P and Emmett AJA agreeing).”[82]
[81] [2016] NSWCA 237 (Chapman-Davis).
[82] Chapman-Davis, [62].
Little assistance is to be gained from the various dictionary definitions on which the parties have relied in the current case. This includes the dictionary definition referred to in Beck, on which the appellant relies.
The word ‘treatment’ is not, in the opening words of s 59, restricted to the provision of services. I cannot see any valid reason why the word should be given a narrower meaning in para (b) than that which it has in the opening words of s 59. I accept that the phrase ‘medical or related treatment’ in s 59 should not be restricted to the provision of a service. There is no reason why the word, where it forms part of the phrase ‘therapeutic treatment’, should be constrained in the way for which the appellant argues. Treatment can extend to the provision of things in an appropriate case. This is consistent with the structure of s 59 and with the decision in Rose. This remains subject to the proviso in Everill, that the meaning of the matters described in the various paragraphs in s 59 is to be understood in the context of the phrase ‘medical or related treatment’ which is being defined (see the passage quoted at [50] above).
The nature of the treatment the subject of this claim is unusual, in that it relates to the provision of an assistance dog. It must, however, be for the purpose of treatment, that is, it must be “designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition limiting the deleterious effects of a condition and restoring health” (see the passage of Rose quoted at [60] above). Additionally, it must be by direction of a medical practitioner.
The current matter proceeded on the basis the relevant dog was a trained assistance dog,[83] trained with the help of a representative from Minddogs Australia.[84] Provision of the dog was supported by the respondent’s treating general practitioner and by her treating psychologist. It was supported by Associate Professor Robertson, the psychiatrist qualified in the respondent’s case.[85] Dr Ng, the psychiatrist qualified in the appellant’s case, was more ambivalent. He said it was not unusual for war veterans with Post Traumatic Stress Disorder and other mental illness “to be accompanied by such a dog”. He said there was “face validity to such an idea and indeed it is a very attractive idea”. He referred to clinical trials and said “the literature would not indicate that service or companion dogs are a mainstream treatment”.[86] The Arbitrator concluded, on the medical evidence overall, that provision of the assistance dog was “appropriate, and likely to be effective” (see [17] above). His finding that provision of the assistance dog was reasonably necessary[87] was available on the evidence and is not challenged on this appeal.
[83] T 49.17–20.
[84] T 57.12–13.
[85] ARD, p 44.
[86] Reply, pp 2–7.
[87] Reasons, [97]–[98].
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue the plurality, in a frequently quoted passage, stated:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[88] (footnotes omitted)
[88] [2009] HCA 41, 239 CLR 27; 260 ALR 1, [47].
The term ‘therapeutic treatment’ is broad and general. The Arbitrator found that “all the medical professionals agreed that having an assistance dog was therapeutic to [the respondent’s] psychological condition”.[89] This finding is not challenged on this appeal. Provision of the assistance dog, on the evidence overall, comfortably falls within the description of treatment in Rose, as being “designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition limiting the deleterious effects of a condition and restoring health”.
[89] Reasons, [105].
The respondent submits s 59 is beneficial in nature and in the event of ambiguity “the definition should be given its widest and most beneficial meaning”.[90] It is made clear in ADCO Constructions Pty Ltd v Goudappel that whether a provision in workers compensation legislation should be construed beneficially depends on identifying the purpose of the particular provision being construed.[91] Section 59 is a provision that goes to the conferring of benefits and I accept that, in the event of ambiguity, a construction that is favourable to the worker should be preferred.[92] In a general sense, this is supportive of the view that I have reached.
[90] Respondent’s submissions, [15]–[16].
[91] [2014] HCA 18; 254 CLR 1, [29].
[92] Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328, per Fullagar J, [6], Bird v Commonwealth [1988] HCA 23; 165 CLR 1, per Deane and Gaudron JJ, [5].
Without seeking to set the outer limits of the phrase, the term ‘therapeutic treatment’ in para (b) of s 59 is, in my view, sufficiently broad to encompass the provision of an assistance dog in an appropriate case.
It follows from the above that Ground No. 1 fails. This is so taking account of the arguments raised by the appellant, including those raised for the first time on this appeal.
GROUND NO. 2
Appellant’s submissions
The appellant quotes from Mitchell v Cullingral Pty Ltd:
“Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another.”[93] (excluding references)
[93] [2012] NSWCA 389 (per Campbell JA, Allsop P and McColl JA agreeing), [116].
The appellant refers also to Port Stephens Shire Council v Pearsall,[94] in which Wood DP summarised aspects of the judgment of Meagher JA, dealing with the duty to give reasons, in Beale v Government Insurance Office of NSW.[95] The appellant refers to St George Leagues Club Ltd v Wretowska in which Roche DP said:
“Further, as Kirby J observed in Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 at [64], courts should avoid an ‘overly pernickety examination of the reasons’. The focus of attention ‘is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties’.”[96]
[94] [2019] NSWWCCPD 8, [238].
[95] (1997) 48 NSWLR 430, 443–444 (Beale).
[96] [2013] NSWWCCPD 64, [195].
The appellant describes the Arbitrator’s reasons, for his conclusion that the assistance dog fell within the definition of ‘therapeutic treatment’, as being found in the Reasons at [105] to [107]. The appellant submits that at [105] the Arbitrator held that the treatment was ‘therapeutic’, and that it did not need to be medical treatment by virtue of the word ‘therapeutic’ having been utilised.[97]
[97] Appellant’s submissions, [39]–[44].
The appellant submits the Arbitrator concluded that provision of the assistance dog was ‘therapeutic treatment’ without engaging in any analysis as to whether it satisfied the definition. It submits this was “neither understandable or logical”.[98]
[98] Appellant’s submissions, [45]–[46].
The appellant says that its counsel, at first instance, referred to Dr Cordowiner’s description of the assistance dog as a “medical treatment tool”, and submitted this supported a proposition that it did not amount to medical treatment at all. The appellant refers to a submission by the respondent’s counsel at first instance that, if a worker was blinded, the provision of a seeing eye dog would fall within the phrase ‘therapeutic treatment’. The appellant submits a seeing eye dog is not to treat blindness but to serve as an aid. The appellant submits that, consistent with Beck, a seeing eye dog would not constitute ‘therapeutic treatment’. The appellant submits the Arbitrator did not explain how this argument was evaluated. It submits that, although the Arbitrator was not directed to the passages from Beck and Rose on which it has relied on appeal, the Arbitrator’s conclusion that the assistance dog could constitute treatment was not accompanied by adequate reasons on this issue.[99]
[99] Appellant’s submissions, [47]–[50].
Respondent’s submissions
The respondent describes this ground of appeal as “hard to follow”. The respondent submits that the appellant, before the Arbitrator, did not submit that “the provision of the assistance dog was not treatment. The issue was whether it was medical or related”.[100] The respondent states this was dealt with in the reasons at [105]: if the treatment was ‘therapeutic’ it fell within the terms of the definition in para (b) of s 59. This was a straightforward application of the words of the section. The reasons were clear.[101]
[100] Respondent’s submissions, [25]–[27].
[101] Respondent’s submissions, [28].
The respondent submits the appellant otherwise complains the Arbitrator did not give adequate reasons for not following the arbitral decision in Parsons. The Arbitrator dealt with this at [106] to [107] of the reasons. The comments of the arbitrator in Parsons were made on different facts, and additionally were obiter. The respondent submits that the appellant does not argue the Arbitrator was wrong on this issue.[102]
[102] Respondent’s submissions, [29]–[31].
The respondent describes the complaint, about the Arbitrator’s failure to deal with the submission about the seeing eye dog, as “strange”. The Arbitrator was not obliged to deal with every submission put, but rather to explain how he reached the conclusion which he did. The respondent submits the appellant’s counsel at the arbitration hearing had an opportunity to address in reply, which he did not do. There was no issue regarding the submission about the seeing eye dog. The respondent submits the appellant’s example of the seeing eye dog discloses the “fundamental absurdity” of the appellant’s position, that therapeutic treatment is limited to the provision of services.[103]
[103] Respondent’s submissions, [32]–[35].
Consideration
There is a helpful and extensive summary of the authorities relating to the duty to give reasons in Pollard v RRR Corporation Pty Ltd.[104] This review includes the following:
“58. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59. The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted. It is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another.”[105] (excluding references)
[104] [2009] NSWCA 110 (per McColl JA, Ipp JA and Bryson AJA agreeing), (Pollard), [56]–[67].
[105] Pollard, [58]–[59].
Reasons do not have to be “lengthy or elaborate”; it is necessary that an arbitrator’s reasons be read as a whole.[106]
[106] Beale, 444.
The appellant’s argument that ‘treatment’ was restricted to the provision of services was not made to the Arbitrator, nor did the appellant place reliance on the decisions of Rose and Beck at first instance. It is not error to fail to consider an issue not argued.[107] It is not an error of law to fail to refer to a matter not raised.[108]
[107] Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68, [68], Boele v Rinbac Pty Ltd [2014] NSWCA 451 [14], [90], [100].
[108] Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111, [22] and [30].
There is some force to the respondent’s submission that the appellant’s submissions on this ground are hard to follow.[109]
[109] See for example, appellant’s submissions at [46].
At first instance, the respondent submitted that a seeing eye dog would fall within the definition of ‘therapeutic treatment’, so provision of a dog could constitute ‘therapeutic treatment’.[110] The appellant argues that the Arbitrator erred in failing to deal with this submission at first instance by the respondent. The appellant submits that this submission by the respondent was inconsistent with the decision in Beck (to which the Arbitrator was not referred).[111] The respondent correctly submits that the Arbitrator was not obliged to deal with every submission.[112] Error is not demonstrated by the Arbitrator failing to refer to one submission put by the respondent, who succeeded before the Arbitrator in any event.
[110] T 42.14–26.
[111] Appellant’s submissions, [48]–[51].
[112] Respondent’s submissions, [32]–[35].
The appellant’s submissions refer to the arbitral decision in Parsons. I am unable to clearly understand the point that is made in this regard.[113] The appellant does acknowledge that the Arbitrator was under no obligation to follow the decision in Parsons. The Arbitrator noted that Parsons could be distinguished on its facts, and also that the comments made in Parsons regarding s 59 were obiter. The Arbitrator also said that he did not agree with those comments.[114] This would appear to amply explain why the Arbitrator did not apply the reasoning in Parsons.
[113] Appellant’s submissions, [46].
[114] Reasons, [106]–[107].
The appellant is otherwise critical of the reasons for failing to adequately explain the Arbitrator’s conclusion that provision of the assistance dog constituted ‘therapeutic treatment’.
It is necessary that the reasons be read as a whole. The Arbitrator, dealing with whether the treatment was reasonably necessary, summarised the medical evidence overall. This included multiple references in the Arbitrator’s reasons to the efficacy of an assistance dog in the treatment of the respondent’s psychological condition. There was reference to a report from Ms Bell (an occupational therapist) which stated “assistant dogs are medical aids”.[115] The reasons referred to Dr Cordowiner (the respondent’s general practitioner) saying the respondent’s functioning “would significantly benefit from an assistance dog and is a form of therapy”.[116] The reasons refer to Ms Patton, the treating psychologist, saying “I do recommend that a service dog be included as treatment, to address [the respondent’s] workplace injury”.[117] Associate Professor Robertson said that an “assistance dog appears to have enabled this patient to re-engage with employment and improve on her clinical progress”.[118] Dr Ng (who did not examine the respondent) said that “the literature did not indicate that service or companion dogs were a mainstream treatment”.[119] In discussing the evidence relevant to whether provision of the assistance dog was ‘reasonably necessary’, the Arbitrator observed the respondent “said she obtains great benefit from her assistance dog”.[120]
[115] Reasons, [22].
[116] Reasons, [25].
[117] Reasons, [26].
[118] Reasons, [37].
[119] Reasons, [51].
[120] Reasons, [95].
The Arbitrator made the following findings:
“Notwithstanding such reservations as to the small evidence base for the effectiveness of treatment by the supply of an assistance dog, there was unanimity amongst all the medical professionals that in this case, there was a therapeutic benefit in the treatment of [the respondent’s] condition by the presence of her dog.”[121]
“… the evidence of the medical experts is unanimous that the proposed treatment was appropriate, and likely to be effective – indeed was actually effective.”[122]
[121] Reasons, [88].
[122] Reasons, [97].
Dealing with whether the assistance dog fell within the definition in para (b) of s 59, the Arbitrator noted a submission by the appellant’s counsel that the dog was not ‘medical treatment’. The Arbitrator said he was satisfied the treatment was ‘therapeutic’. He noted paragraph (b) refers to ‘therapeutic treatment’. On the clear words of the section ‘medical or related treatment’ includes “therapeutic treatment given by direction of a medical practitioner”. This is the point the Arbitrator made in the reasons at [107]. I note this is consistent with the decision in Bartolo where Burke CCJ said “[i]t therefore follows that Mrs Bartolo must establish that the particular treatment falls within one or more of the particular items in the definition”.[123]
[123] Bartolo, 236.
The Arbitrator’s thorough examination of the medical evidence in his reasons, referred to above, clearly described the evidence which justified his conclusion that provision of the assistance dog constituted ‘therapeutic treatment’. The Arbitrator found that the treatment was “given by direction of a medical practitioner”,[124] a finding which is not challenged on this appeal. I accept the respondent’s submission that the Arbitrator’s reasons at [105] involved a straightforward application of the words of the section.[125] The Arbitrator made the necessary findings to satisfy the requirements of para (b). It followed from those findings that the matter fell within the definition in para (b), and therefore provision of the assistance dog fell within the definition of ‘medical or related treatment’ in s 59.
[124] Reasons, [101]–[104].
[125] Respondent’s submissions, [28].
The Arbitrator’s reasons complied with his duty to provide reasons.
Ground No. 2 fails.
CONCLUSION
The appellant’s grounds of appeal have failed. It follows that the Arbitrator’s decision should be confirmed.
ANOTHER MATTER
The Arbitrator’s findings included one that the requirement in para (b) of s 59, that the relevant treatment be by direction of a medical practitioner, was satisfied on the basis of a direction of Ms Patton, a psychologist.[126] That finding was not challenged on appeal, there have been no submissions relating to it and I have not considered its correctness. These reasons should not be taken as an endorsement of the approach taken to that issue.
[126] Reasons, [101]–[104].
DECISION
The Arbitrator’s decision dated 20 March 2020 is confirmed.
Michael Snell
DEPUTY PRESIDENT
30 July 2020
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