‘Nala’ the asistance dog found to constitute therapeutic treatment

State Of NSW Central Coast LHD v Bunce [2020] NSWWCCPD 48

The worker in this matter was a Registered Nurse. In March 2017, there was an incident in which a raging patient came toward the worker and put her in fear of being hurt.

The worker had a panic attack in April 2017 and she was advised to cease work. She received treatment for panic disorder and PTSD. Liability for the worker’s psychological injury was accepted.

In March 2018 the worker acquired an assistance dog, ‘Nala’, who was trained with the assistance of MindDogs Australia. The treating GP and psychologist had recommended that the worker obtain an assistance dog to help with relief of her anxiety and PTSD. The insurer denied liability for payment for Nala on the basis that an assistance dog was not ‘medical or related treatment’ within the definition of Section 59 of the Workers Compensation Act 1987 (‘the 1987 Act’). The insurer further asserted that an assistance dog did not constitute ‘reasonably necessary treatment’ pursuant to Section 60 of the 1987 Act.

In the first instance the matter came before Arbitrator Wynyard, who observed that it was unanimously considered by treating practitioners that the worker received therapeutic benefit in the treatment of her condition by the presence of her dog. The Arbitrator accepted that the provision and maintenance of Nala the assistance dog constituted reasonably necessary medical treatment.

The State of NSW appealed the decision on the basis that the Arbitrator had erred in finding that an assistance dog constituted therapeutic treatment pursuant to Section 59 of the 1987 Act.

Relevant law

Section 59 of the 1987 Act provides the following:

“medical or related treatment” includes-

• 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,
• therapeutic treatment given by direction of a medical practitioner,
• the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
• any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
• 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,
• 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
  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.

Proceedings in the Presidential Division

The matter came before Deputy President Snell. The only issue at this stage was whether an assistance dog constituted therapeutic treatment under Section 59(b) of the 1987 Act.

DP Snell considered that in order for the provision of an assistance dog to constitute ‘treatment’, 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” (citing Rose v Health Commission (NSW) [1986] NSWCC 2). Additionally, he noted that it must be at the direction of a medical practitioner.

DP Snell went on to note that the Nala had been trained with the help of MindDogs Australia and that the provision of an assistance dog had been supported by the worker’s GP and psychologist. DP Snell considered that the term ‘therapeutic treatment’ is broad and general, and he found it to be sufficiently broad to encompass the provision of an assistance dog in an appropriate case.

In confirming the Arbitrator’s decision, DP Snell commented that the Arbitrator had engaged in a thorough analysis of the medical evidence and that his finding that the provision of an assistance dog constituted therapeutic treatment was justified.

Implications

It is now clear that the provision and maintenance of an assistance dog can constitute therapeutic treatment under Section 59(b) of the 1987 Act. In order to establish that the provision of a dog constitutes treatment in a particular case, it will need to be proven that provision of the dog is “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”. Additionally, provision of the dog must be at the direction of a medical practitioner. Decision makers will consider evidence from treating practitioners in order to determine whether the provision of the dog has the appropriate therapeutic effect. The training which has been received by the dog is also likely to be an important consideration.

Should you have any questions about a particular workers compensation matter, please telephone our workers compensation team on either 4929 9333 or 8297 5900.