Date of Appeal Determination: 30 July 2020
Citation: State of New South Wales (Central Coast Local Health District) v Bunce [2020] NSWWCCPD 48 (30 July 2020)

FACTS

The respondent, Karen Bunce was a registered nurse employed by the State of New South Wales (Central Coast Local Health District) (the appellant). The respondent developed a panic disorder and post-traumatic stress after an enraged and abusive patient came towards her in a corridor of the hospital. This incident reminded of her when she witnessed a patient beating another to death.

After this incident, the respondent acquired a dog named ‘Nala’. Nala was trained to become an assistance dog with a representative from “mindDogs Australia”. This was based on the recommendation of Dr Cordowiner and Ms Patton, who believed that an assistance dog would help relieve the respondent’s anxiety and PTSD.

The appellant denied that the respondent’s claim for a therapy dog fell within one or more of the definitions of “medical or related treatment” pursuant to section 59 of Workers Compensation Act 1987 (the 1987 Act). It also denied that an assistance dog was “reasonably necessary treatment” pursuant to s 60 of the 1987 Act.

In the Personal Injury Commission, the Arbitrator found that the supply of an assistance dog was ‘therapeutic treatment’ within the meaning of s59(b) of the 1987 Act, and that this was reasonably necessary medical treatment.

GROUNDS OF APPEAL

The appellant argued that:

1. The Arbitrator had erred in his finding that an assistance dog is classified as therapeutic treatment pursuant to s59 of the 1987 Act.
2. The Arbitrator had erred by failing to give sufficient reasons for his finding that an assistance dog was therapeutic treatment within the meaning of s59(b) of the 1987 Act.

GROUND 1 DECISION:

The appellant, relying on Beck^[1] and Rose^[2], argued 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”.

Deputy President Michael Snell did not agree that the word ‘treatment’ in the opening of s59 was restricted to the provision of services. He could not see any valid reason as to why the same words in the opening of s59 should be given a narrower meaning than they are given in s59(b). Thus, he stated that that the phrase ‘medical or related treatment’ in s 59 should not be restricted to the provision of a service.

Furthermore, he stated that the term ‘therapeutic treatment’ is broad and general. For an assistance dog to be considered treatment, it must simply per Rose, “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”. Additionally, it must be by direction of a medical practitioner.

The evidence showed that all the all medical professionals agreed that having an assistance dog would be therapeutic to the respondent’s psychological condition, and the dog had been specifically trained for that purpose. Therefore, Deputy President Snell found the term “therapeutic treatment” to be sufficiently broad enough to encompass the provision and maintenance of an assistance dog.

GROUND 2 DECISION:

Deputy President Snell noted that an Arbitrator’s reasons do not have to be lengthy or elaborate, it is essential to read an arbitrator’s decision as a whole.[3] He ultimately held that the Arbitrator’s reasons complied with his duty to provide reasons.

LESSONS TO BE LEARNT:

1. It has now been established that an individual’s claim for an assistance dog can be considered “therapeutic treatment” pursuant to section 59 of the 1987 Act, albeit each matter will turn on its own facts. The factors to consider are the ones mentioned above in Rose, whether the dog was recommended by a medical practitioner and perhaps if the dog was trained for such purpose.
2. The decision is problematic in that it is not clear what exact costs are encompassed as attaching to the provision of a companion dog as therapeutic treatment. For example, does the cost of the provision of the treatment, being the dog, include food, shelter, pet insurance and veterinary bills as associated expenses in the provision of the therapeutic treatment.
3. Additionally, this decision leaves open the potential for other types of companion animals to be sought.
4. Having regard to the potential expansive cost, it would be appropriate where a companion dog is claimed to obtain expert evidence on the actual cost of such provision as a legitimate factor in the assessment of whether the claimed treatment is reasonably necessary, also having regard to the decision in Rose, in which one of the factors for consideration is the cost of the treatment as compared with its benefit.

[1] Woollahra Council v Beck [1996] NSWCC 43
[2] Rose v Health Commission [1986] NSWCC 2.
[3] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.

Contributor: Melissa Cuadros Lu

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.