The Workers Compensation Commission of New South Wales on 20 September 2018 issued a decision in the matter of Damien Parsons -v- Corrective Services NSW.

The Applicant was represented by Mr Gerard Morson, Senior Associate, of Turner Freeman Penrith Office.

The decision

Arbitrator Young decided that the provision of an assistance dog to the Applicant represented a reasonably necessary medical treatment within the meaning of s60 of the Workers Compensation Act 1987 (“the 1987 Act”).

The Applicant, presently 39 years old, was employed by the Respondent as an emergency response officer. During the course of his employment, he was repeatedly exposed to traumatic and violent situations, as a consequence of which he developed severe post-traumatic stress disorder (“PTSD”).

The Applicant relied on the opinions of a consultant psychiatrist, and also his treating doctors, that the provision of the assistance dog would alleviate the symptoms of his mental illness. In the opinion of Dr Rastogi, expressed in her report of 17 May 2018,

The dog will help him provide companionship and help him with social anxiety. There have been studies to suggest that therapy dogs can help with soothing and relaxation during panic attacks and are very protective and can sense dangers that a person with PTSD cannot sense due to extreme arousal and vigilance. It will help Mr Parsons build confidence and set social goals and exposure given he is significantly impaired socially and highly avoidant due to PTSD. It will help him get out of bed and get some exercise given his poor motivation and drive.

The Respondent relied on evidence from Dr Ng, consultant psychiatrist, who had not had the benefit of examining the Applicant, and who formed his opinion only on the review of a seemingly incomplete brief of evidence. The substance of Dr Ng’s opinion was that studies he had reviewed concerning the effectiveness of assistance dogs were inconclusive regarding their effectiveness in the treatment of mental illness, including PTSD.

Arbitrator Young concluded at paragraph 41 and 42,

  1. It is not the task of the Commission to be satisfied that scientific evidence warrants or dispels the need for provision of medical treatment, because scientific tests require significant statistical certainty and are not tests on the balance of probabilities. The task is to consider the individual applicant, in this case Mr Parsons, and the extent of his injuries and disabilities, and come to a view, comfortably and on the balance of probabilities, as to whether the provision and maintenance of the dog is “reasonably necessary”. To the extent that both Ms Brownlee and Dr Ng rely on research literature (not all of which, incidentally, is unfavourable to the applicant) I read their opinions as having very much a scientific flavour and addressed to scientific analysis, which is not the test in this matter. The flavour is more apt to deal with an issue as to whether provision of a dog for the applicant is “absolutely necessary” and this is not the relevant test (see Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 (Moorebank)).
  2. Adopting the criteria in Rose, I am comfortably satisfied that provision of a dog for the applicant, who is significantly ill, is an appropriate treatment because I accept the evidence of Dr Pusic and Dr Rastogi, both who have seen the applicant, that the dog will be of benefit to the applicant’s mental state. I accept that there are other forms of treatment available which could also be of benefit, but I take the view that these forms of treatment are additional, not alternatives. The cost of $21,400 over a 15 year period is not in my view significant to advance for a man who is clearly critically ill. The potential effectiveness is present because even if, as I expect, the dog will bring some happiness to the applicant, his symptoms are on the balance of probabilities likely to be ameliorated to some beneficial extent. In terms of acceptance by the medical profession, Drs Pusic, Rastogi and Fong support the proposed acquisition and the first two doctors give reasons for this support. Neither Dr Ng nor Ms Brownlee interviewed the applicant and had they done so in my view their scientific views would have been better informed.

While the result represents an excellent outcome for the Applicant in this case, unfortunately there remains a live issue as to whether an assistance dog per se constitutes medical or related treatment within the definition of s59 of the 1987 Act. However, the Arbitrator did not consider that he was required to consider the matter on that basis because it had not been pleaded in the insurer’s dispute notice. That is perhaps very fortunate for the Applicant in this case, as the Arbitrator seemed skeptical that an assistance dog could in fact fall within that meaning, as to which see paragraphs 32 and 33 of his decision. However submissions were not made on the issue by the parties and the author anticipates there will be further litigation concerning the issue, given the high incidence of mental illness arising in an employment context.

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