1. The appeal is dismissed.
2. The Member's Certificate of Determination dated 26 April 2024 is confirmed.

WORKERS COMPENSATION - Section 60 of the Workers Compensation Act 1987 - claim for cost of physiotherapy treatment; gym membership; personal training, and exercise physiology - the Member made orders for payment of treatment for a particular time period - appeal by worker seeking orders for those treatment expenses to be paid for the duration of the worker's lifetime - consideration of treating doctor's reports - section 59A of the Workers Compensation Act 1987

Hallmann v Southern Cross University [2024] NSWPIC 209

1. The appeal is from a decision of the Personal Injury Commission (Commission) made on 26 April 2024.
2. The Commission determined and issued a Certificate of Determination which provided relevantly as follows:

"1. Physiotherapy treatment is reasonably necessary medical treatment for the [appellant] as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. He is to be afforded eight weeks of physiotherapy treatment three times per week in accordance with Emile du Plessis' request dated 6 April 2023. The Commission only has evidence before it to allow it to order this period of physiotherapy treatment. If the [appellant] requires physiotherapy treatment for a longer period, he will need to make an appropriate claim upon the respondent in this regard. The Commission currently makes no determination regarding the [appellant's] entitlements following the period referred to in Emile du Plessis' request.

1. Gym membership is reasonably necessary medical treatment for the [appellant] as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. He is to be afforded gym membership for three months in accordance with the tax invoice from Byron Gym dated 11 April 2023. The Commission only has evidence before it to allow it to order this period of gym membership. If the [appellant] requires gym membership for a longer period, he will need to make an appropriate claim upon the respondent in this regard. The Commission currently makes no determination regarding the [appellant's] entitlements following the period referred to in the tax invoice from Byron Gym.
2. Personal training is reasonably necessary medical treatment for the [appellant] as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. He is to be afforded 13 weeks of personal training twice per week in accordance with Jason Mickan's request dated 30 August 2023. The Commission only has evidence before it to allow it to order this period of personal training. If the [appellant] requires personal training for a longer period, he will need to make an appropriate claim upon the respondent in this regard. The Commission currently makes no determination regarding the [appellant's] entitlements following the period referred to in Jason Mickan's request.
3. Exercise physiology is reasonably necessary medical treatment for the [appellant] as a result of his accepted injuries on 1 July 2020 as well as his accepted injuries on 15 October 2022. He is to be afforded eight weeks of exercise physiology once per week in accordance with Tim Boyd's request dated 9 March 2023. The Commission only has evidence before it to allow it to order this period of exercise physiology. If the [appellant] requires exercise physiology for a longer period, he will need to make an appropriate claim upon the respondent in this regard. The Commission currently makes no determination regarding the [appellant's] entitlements following the period referred to in Tim Boyd's request.

1. The respondent is to pay for the costs of and incidental to the [appellant] undergoing the following treatment, pursuant to s 60 of the Workers Compensation Act 1987:

(a) eight weeks of physiotherapy treatment three times per week;

(b) gym membership for three months;

(c) 13 weeks of personal training twice per week, and

(d) eight weeks of exercise physiology once per week."

1. The appeal challenges the Commission's determination with respect to the specificity of the proposed services. In addition, the appellant appeals from the Member's decision with respect to his complaints concerning the s 78 notices issued by the insurer and the alleged failure by the respondent to comply with the requirements of the model litigant protocol.
2. For the reasons that follow, the appeal is dismissed and the Member's Certificate of Determination is confirmed.

1. The facts, including the background facts, are not in dispute. The following summary is taken largely from the Member's Statement of Reasons.[1]
2. The appellant was employed by Southern Cross University (SCU) from 2008 as a tutor (study assist officer).
3. The appellant suffers from myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS) with fibromyalgia (FM) (hereafter referred to as ME/CFS with FM[2]).
4. The appellant worked from his home from 27 March 2020 until around September 2022. He sustained an injury to the back. The injury was due to sitting for long periods of time in an unsuitable chair. Further and as a result of the injury to the spine, he also exacerbated his ME/CFS with FM.
5. Having initially accepted that the appellant had sustained the injuries, the respondent subsequently disputed liability. The Commission made a determination in favour of the appellant on 15 June 2022.
6. The appellant suffered a further aggravation of the cervical, thoracic and lumbar spines in a motor vehicle accident on 15 October 2022. He also sustained injuries to the right hip and right elbow in that accident.
7. On 15 June 2022 the Commission made a determination which, though varied slightly on appeal, provided as follows:

(a) the appellant sustained injury in the course of employment with the respondent by way of a disease injury - pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act);

(b) the deemed date of injury pursuant to s 16(1) of the 1987 Act is 1 July 2020, and

(c) the appellant has had a partial incapacity for work since 1 December 2021.

1. The appellant has received weekly payments of compensation since the determination of the Commission and some medical and treatment expenses pursuant to s 60 of the 1987 Act.
2. In these proceedings the parties contested disputed claims for expenses by the appellant relating to physiotherapy treatment, gym membership, personal training and exercise physiology.
3. The respondent denied liability for the expenses required by the appellant for physiotherapy treatment, gym membership and personal training by way of a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 4 May 2023.
4. It was not apparent to the Member whether a s 78 notice had been issued with respect to exercise physiology expenses. The Member said:

"... there is a request that the respondent pay such expenses completed by the [appellant's] exercise physiologist, Tim Boyd, ... dated 9 March 2023 ... In the circumstances, should the respondent not have issued the necessary notice pursuant to s 78, the [appellant] would still nevertheless be entitled to proceed before the Commission to claim exercise physiology expenses, pursuant to s 289(2) of the 1998 Act as the respondent would have then failed to determine that claim within the 21 days required by s 279 of the 1998 Act."[3]

1. At the conciliation phase of the hearing, the respondent conceded that the injuries which the appellant received in his motor vehicle accident on 15 October 2022 to the right hip, right elbow, cervical, thoracic and lumbar spines were consequential injuries resulting from his accepted work related injuries. The respondent continued to maintain, however, that the appellant's allegations of receiving injuries to his styloid and sacrum in the motor vehicle accident were disputed.
2. The parties agreed that the issues in dispute in the proceedings were:

(a) whether physiotherapy treatment was reasonably necessary medical treatment as a result of the appellant's accepted injuries on 1 July 2020 and 15 October 2022 - if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required;

(b) whether gym membership is reasonably necessary medical treatment as a result of the appellant's accepted injuries on 1 July 2020 as well as the appellant's accepted injuries on 15 October 2022 - if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required;

(c) whether personal training is reasonably necessary medical treatment as a result of the appellant's accepted injuries on 1 July 2020 as well as the appellant's accepted injuries on 15 October 2020 - if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required, and

(d) whether exercise physiology is reasonably necessary medical treatment as a result of the appellant's accepted injuries on 1 July 2020 as well as the appellant's accepted injuries on 15 October 2020 - if so, what is the extent to which the treatment is required and what is the frequency in relation to which the treatment is required.

1. After observing that there was no oral evidence given by either party, the Member proceeded to review the extensive evidence.
2. It is unnecessary for the purpose of this decision to repeat the Member's comprehensive review of the evidence and the parties' submissions as it appears that, whilst there is disputation by the appellant as to the conclusions to be drawn from the evidence, there is no real dispute as to the accuracy of the Member's review.
3. Of importance, however, are the Member's comments with respect to a report from the treating Dr Bird dated 13 August 2023.[4]
4. The Member said:

"Importantly, the doctor's 13 August 2023 report also contains (as its fifth annexure) a summary plan in relation to the [appellant's] overall treatment for his accepted injuries, which describes 20 goals for the treatment, some of which are described however as only possible or even remote. The date for the achieving of the goals is stated to be 31 May 2025. The plan however specifically refers to how often each treatment modality requires review, which includes:

(a) physiotherapy being reviewed every eight sessions;

(b) exercise physiology being reviewed every eight sessions, and

(c) personal training being reviewed every 24 sessions."[5]

1. The respondent's evidence before the Member comprised essentially a report from a Mr Silcock, an independent physiotherapy consultant, dated 6 April 2023. The respondent did not rely on any opinion from doctors with medical qualifications. Mr Silcock's report was a "stage II independent review" of the appellant's physiotherapy and exercise physiology treatment. It did not involve any physical examination.
2. The Member summarised the parties' submissions in detail. For the purpose of this decision, however, it is only necessary to address, so far as the substantive part of the appeal is concerned, particular submissions.
3. The appellant sought an order that the orders be made for an indefinite period into the future.
4. The Member recorded the appellant's submissions as follows:

"(a) the ARD is clear as to the orders sought in this regard;

(b) such orders would prevent the respondent's insurer from delaying his treatment in the future, thus meeting the objective outlined in s 3 of the 1998 Act in allowing for the prompt, effective, and proactive management of his injuries to assist in securing his health, safety and welfare - it would allow for the efficient and effective operation of the workers compensation scheme in his circumstances;

(c) such orders would prevent the deterioration of his condition which occurred in the past (according to both his statement evidence and Dr Bird's evidence) when the respondent's insurer did not approve his treatment needs;

(d) such orders would prevent the respondent's insurer from again breaching its model litigant obligations;

(e) such orders would 'secure the health of the worker';

(f) such orders would promote his vocational rehabilitation, in order to assist a return to work;

(g) such orders would be fair;

(h) such orders would not be contrary to s 59A of the 1987 Act which 'puts in place limitations on the duration of a worker's entitlements to treatment, however none of those situations are relevant to the [appellant's] claim';

(i) there is no bar to [the Member] making such orders - s 60(5) of the 1987 Act makes this clear;

(j) Dr Bird has made it clear in multiple references that his ME/CFS with F is a lifelong condition from which there is no recovery, and the treatment for which is likely to be lifelong - similarly Dr Bird has made it clear in multiple references that the treatment of his spinal injuries is likely to be lifelong and will necessitate physiotherapy and chiropractic treatment - he specifically relies upon Dr Bird's 13 August 2023 report and, inter alia, the extract from that report produced at paragraph 73 above (in relation to the [appellant's] treatment program being slow, the achievement of the goals of the program taking years, and the management of his spinal injuries likely to be lifelong), and

(k) Dr Bird's 'references to lifelong treatment and lifelong injuries, need to be read in their context and not merely considered in their 'cut and paste' extraction'."[6]

1. The Member noted the respondent's response to the submission as, inter alia:

"... that there was no evidence to support any submission by the [appellant] for him to be awarded lifetime coverage for physiotherapy treatment, exercise physiology, personal training and gym membership - it was also questionable as to whether [the Member] possessed the jurisdictional power to make such an award."[7]

1. The respondent made an additional submission in reply, recorded by the Member as follows:

"In relation to the [appellant's] request for 'lifelong treatment', the respondent submits that Dr Bird's opinions are not sufficient to support such an order, and that in any case, the Commission does not have the power to make such an order. The respondent refers to s 59A of the 1987 Act as being incongruous with the ability of the Commission to make such an order in this regard."[8]

1. The appellant made two additional submissions with respect to the respondent's obligation as a model litigant and the s 78 notice, recorded by the Member as follows:

"Finally, the [appellant] alleges breaches by the respondent of its model litigant obligations. The respondent has a history of delayed decisions regarding the [appellant's] claims for approval of treatment expenses, and not complying with previous determinations of the Commission. The respondent did not properly instruct [Mr] Silcock and its 4 May 2023 notice pursuant so s 78 of the 1998 Act is defective. The respondent has not acted honestly or in accordance with its ethical obligations, which has actively caused the [appellant's] deterioration in his treatment progress."[9]

1. The appellant sought an order from the Member that the papers be referred to the Registrar to determine what action, if any, should be taken against the respondent, its insurer and/or its previous and current legal representatives.
2. The respondent submitted:

"... the respondent disputes that it has breached its model litigant obligations. It submits that issues in relation to prior proceedings before the Commission 'are not relevant to determination required by the Member in these proceedings'

'The Member has been privy to the conduct of the parties in these proceedings. The conduct of the insurer and the insurer's legal representative in these proceedings has at all times clearly complied with the standard required under the model litigant policy. The conduct of the insurer and the insurer's legal representative in these proceedings in no way gives rise to any consideration of the model litigant policy.'"[10]

"The Respondent opposes the [appellant's] submission that the section 78 notice dated 4 May 2023 is defective. The Respondent submits the matters in dispute were clearly outlined in the body of the notice and appropriately pleaded in the notice. The Respondent submits the notice clearly stated why it disputed liability and the matters relevant to its decision. It is evident the [appellant] understood the contents of that notice in bringing these proceedings and in his submissions."[11]

1. The appellant was permitted to advance additional submissions by leave which are summarised by the Member at [107] of the reasons but need not be noticed for the purpose of this decision.
2. The Member set out ss 60(1) and 59 of the 1987 Act. He referred to Rose v Health Commission (NSW)[12] and Diab v NRMA Limited.[13]
3. He said:

"113. Despite the voluminous evidence before me, it seems to me that the resolution of the issues in dispute essentially involves a determination as to whether I accept the [appellant's] statement evidence and Dr Bird's opinions, or whether I accept [Mr] Silcock's opinions. The [appellant] has accepted work-related injuries to his whole spine, which have aggravated his ME/CFS with F, and also caused various other consequential injuries. The dispute involves how those injuries are to be treated.

1. The [appellant's] credit has not been placed in issue by the respondent, and there is no reason why I would not accept him as a witness of truth. His statement evidence is consistent in describing the deterioration in his condition when he did not have physiotherapy treatment and exercise physiology between October 2021 and July 2022 ..., then the improvement in his condition when those treatment modalities were re-instated between July 2022 [and] April 2023 ... and then the significant deterioration in his condition again after April 2023 when those treatment modalities were again removed ... His statement evidence in this regard is corroborated by his partner ...
2. His statement evidence ... also explains how physiotherapy treatment was the sole treatment that alleviated the effects upon him of normal activities and exercise, and how exercise physiology was the sole treatment that assisted in maintaining weight, maintaining glucose resistance, preventing deterioration, as well as improving strength, flexibility, and function. Medication had not been effective in this regard and had produced side-effects.
3. Dr Bird has provided thorough, reasoned, and consistent reports in relation to the [appellant's] treatment needs. Very rarely do I see such detailed reports from a treating general practitioner."
4. Later the Member says:

"120. The doctor's final report dated 13 August 2023 is his most detailed. I have quoted from it extensively ... above. In my opinion, these extracts in particular reveal the purposes behind the physiotherapy treatment and exercise physiology recommended for the [appellant], what those treatments are to address, why the treatments are necessary, and how the treatments fit in with the overall treatment plan for the [appellant's] accepted injuries. The extracts also reveal the complexity of the [appellant's] condition and the patience that must therefore be afforded in assessing the effectiveness of its treatment.

1. Having analysed Dr Bird's reports in some detail, I am impressed by their reasoning and explanations, as well as their consistency. I intend to place significant weight upon the opinions in the reports."
2. After discussing at some length the "many difficulties" in the respondent relying upon Mr Silcock's opinion[14] the Member said this:

"124. I find [Mr] Silcock's report to be therefore unreliable in many respects, and I do not intend to afford it much weight. I accept the submissions of the [appellant] ... above. I will be accepting the opinions of Dr Bird regarding the [appellant's] treatment needs. These opinions are consistent with the [appellant's] and his partner's description as to the deterioration and improvement in his condition depending upon the availability of physiotherapy treatment and exercise physiology. The opinions are also consistent with the reports (albeit somewhat aged and brief) from Drs Cleaver, Lee, and Kim ..., as well as the various treatment requests made by Plessis, Boyd and Mickan ...

1. Dr Bird considers the [appellant's] current treatment needs in respect to his accepted injuries as including one session with an exercise physiologist per week and two sessions with a personal trainer per week ... Gym membership is of course necessary with this exercise regime. Dr Bird also considers the current treatment needs to include three physiotherapy sessions per week ..., and he explains that while that requirement may seem 'unusual', it is necessary due to the complexity of the [appellant's] conditions.
2. I find the treatment needs recommended by Dr Bird in this regard to be reasonably necessary for the treatment of the [appellant's] spinal injuries and ME/CFS with F."
3. The Member then considers whether the appellant's work-related injuries and his reasonable need for physiotherapy treatment, gym membership, personal training and exercise physiology are the result of the accepted injuries, and concludes in favour of the appellant,[15] being findings that are not subject to appeal.
4. The Member posed for determination the following:

"... Specifically, do I order that the treatment be afforded to the [appellant] for life (as submitted by him), do I order that the treatment be afforded to him for a specific period into the future, or do I make an order without any time frame attached to it."[16]

"I do not intend to make an order without any time frame attached to it. Such an order does not provide any certainty to the parties and theoretically could result in the [appellant's] treatment needs being reviewed within a very short period of time. Further, I have evidence before me of specific requests for treatment (which I have now found to be reasonably necessary as a result of the [appellant's] accepted injuries), that include time frames for the treatment. Those requests were denied by the respondent, and it is my opinion that orders should now be made regarding the requests. The requests were referred to and referenced in the respondent's submissions ... There have been no other specific requests for treatment made to the respondent, it only otherwise being provided with the opinions outlined in Dr Bird's 13 August 2023 report."[17]

1. The Member said that he did not intend to make an order that the treatment recommended by Dr Bird be afforded to the appellant for life. The Member's reasons for this conclusion were:

(a) Firstly, that it would be incongruous with s 59A of the 1987 Act to do so. Having acknowledged the appellant's submission that s 59A did not apply to him, the Member observed that that was correct "at the current time" but "unless he is eventually assessed as 'a worker with high needs', the section will eventually apply to him (and lead to his entitlement to claim treatment expenses from the respondent being extinguished) after a period has elapsed following the cessation of his weekly benefits compensation."[18]

(b) Secondly, the Member said that in his view the clear intention of the 1987 Act was to allow regular review by an insurer of an injured worker's treatment requests. The Member referred to s 60(5) of the 1987 Act and said that in his view the subsection "solely provides me with the necessary jurisdiction to order the respondent to pay for proposed treatment in a general fashion. It does not allow me to act contrary to ss 59A or 60(2A) of the 1987 Act."[19]

1. Having accepted the appellant's submission that Dr Bird considered that the appellant's spinal injuries and ME/CFS with FM are lifelong conditions that will likely require lifelong treatment, he said:

"143. ... I have not been able to find (and I have received no submissions pointing me to) a reference within Dr Bird's reports stating that the [appellant] will specifically require lifelong physiotherapy treatment, gym membership, personal training, and exercise physiology. He may require lifelong treatment but I cannot infer from Dr Bird's reports that the treatment will involve those specific treatment modalities.

1. ... However, having determined that I will be ordering that treatment be afforded to the [appellant] for a specific period into the future (rather than an uncertain general order in this regard), I find that I currently possess no accurate evidence as to a specific time frame for those treatment modalities other than the requests referred to in the paragraph above, being:

(a) eight weeks of physiotherapy treatment three times per week - see Plessis' request referenced at paragraph 36(k) above;

(b) eight weeks of exercise physiology once per week - see Boyd's request referenced at paragraph 37(d) above;

(c) 13 weeks of personal training twice per week - see Mickan's quotation referenced at paragraph 38(b) above,; and

(d) gym membership for three months - see request referenced at paragraph 39 above."

"If, as expected, the [appellant] then requires the treatment modalities to be further approved following the expiry of the time frames in my order, he will need to make an appropriate claim upon the respondent in this regard. I currently make no findings regarding the [appellant's] entitlements following the periods referred to in my order."[20]

1. The Member dealt with the appellant's additional submissions:

"(a) the submission referred to at paragraph 90 above as to the defective nature of the respondent's 4 May 2023 notice pursuant to s 78 of the 1998 Act - I do not intend to determine whether the notice was defective as, considering the findings I have made regarding the reasonably necessary treatment required by the [appellant] for his accepted injuries, the notice has been effectively overturned whether it was defective or not, and

(b) the submissions referred to at paragraphs 97, 98 and 106 above regarding alleged breaches by the respondent of its model litigant obligations - I do not intend to make any orders in this regard - while I acknowledge the history provided by the [appellant] as to his dealings with the respondent's insurer, I do not consider it to be my role to investigate those dealings further, or indeed prompt further investigations of those dealings - in my opinion, there are authorities that the [appellant] can directly complain to in relation to his dealings with the respondent, and he does not need me to refer the respondent's insurer to those authorities - further, my personal knowledge of the dealings between the [appellant] and the respondent's insurer is limited to my involvement in these proceedings, during which the respondent has acted courteously and in accordance with the guiding principle of the Commission (pursuant to s 42 of the Personal Injury Commission Act 2000 [sic, 2020]) in assisting me to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings - the respondent did not delay the resolution of the proceedings, making its submissions in a timely manner."[21]

1. The Member then made the orders the subject of the Certificate of Determination.

1. The appellant relies on eight grounds of appeal:

Ground 1 - The Member erred in fact in finding that he 'received no submission pointing me to ... a reference within Dr Bird's reports stating that the [appellant] will specifically require lifelong physiotherapy treatment, gym membership, personal training, and exercise physiology'.

Ground 2 - The Member erred in fact in finding that he was not able to find a reference within Dr Bird's reports stating that the appellant will specifically require lifelong physiotherapy treatment, gym membership, personal training and exercise physiology.

Ground 3 - The Member erred in fact in finding that the SMART plan specifically refers to how often each treatment modality requires review.

Ground 4 - The Member erred in law and fact in concluding that he could not infer from Dr Bird's reports that the treatment that is required to be lifelong, would be the specific treatment modalities of physiotherapy, gym membership, personal training and exercise physiology.

Ground 5 - The Member erred in law in finding that an award of lifelong treatment would be 'incongruous with s 59A of the 1987 Act'.

Ground 6 - The Member erred in his discretion to award eight weeks of treatment for physiotherapy, exercise physiology and personal training, and three months for access to a gym membership.

Ground 7 - The Member erred in law and/or discretion in not making considering (sic) and/or making a finding and/or make orders with respect to the appellant's submissions on the invalidity of the s 78 notices.

Ground 8 - The Member erred in law and/or discretion in not making considering (sic) and/or making a finding and/or making orders with respect to the appellant's submissions on the respondent's breaches of their model litigant obligations.

1. The appellant lodged the appeal on 24 May 2024 which is within 28 days of the Certificate of Determination which issued on 26 April 2024. The respondent advances no contrary argument.
2. The appellant asserts that the amount in issue is greater than $5,000. The respondent does not dispute that the threshold requirements of s 352(3) of the 1998 Act are satisfied.

1. The parties agree that the appeal can be determined on the papers.
2. Section 52(3) of the Personal Injury Commission Act 2020, together with Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied in this matter and propose to determine the matter on the papers without holding any conference or formal hearing.

1. The appellate jurisdiction conferred by s 352 of the 1998 Act relevantly provides:

"(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion and to the correction of any such error. The appeal is not a review or new hearing."

GROUND 1: The Member erred in fact in finding that he 'received no submission pointing me to ... a reference within Dr Bird's reports stating that the [appellant] will specifically require lifelong physiotherapy treatment, gym membership, personal training, and exercise physiology'

1. The appellant quotes paragraphs [142] and [143] of the reasons. He then refers to his submissions dated 23 February 2024 and 24 March 2024. He says that in those submissions the Member was specifically directed to "lifelong treatment" at pages 133 to 149; "submissions on future treatment" at page 142; and pages 142 to 146 which he submits expressly directed the Member's attention to the opinions of the treating medical practitioner that addressed the need for lifelong treatment under each of the treatments recommended.
2. The appellant directs attention to his response submission at pages 21 to 24 to the following effect:

(a) he has expressly responded to the respondent's assertion that there was no evidence to support such an order;

(b) he relied on his prior submission and the response submission at page 21;

(c) the respondent gave no reasons for its assertion that there is no evidence;

(d) the respondent is a model litigant and therefore is required to assist the Member by articulating the reasons for its assertion (of which there were none), and

(e) if there were reasons for the assertion then the appellant was denied procedural fairness by preventing his ability to respond to the submissions by failing to provide those reasons.

"... the facts being at odds with the finding of the Member, the Appellant respectfully submits that the Member erred in fact - the fact is that the Appellant expressly directed the Member to the evidence by way of quotation and by way of pin-point reference.

... that quotations come with context and the context was the position of the quote, juxtaposed against the surrounding context of the opinion of Dr Bird."[22]

GROUND 2: The Member erred in fact in finding that he was not able to find a reference within Dr Bird's reports stating that the appellant will specifically require lifelong physiotherapy treatment, gym membership, personal training and exercise physiology

1. The appellant quotes paragraphs [141], [143] and [145] of the Member's reasons.
2. He refers to his submissions with respect to lifelong treatment and future treatment at pages 142 to 146, referred to above.
3. The appellant submits that the Member was:

"(a) provided the evidence in support of the Appellant's case by way of well-organised, date ordered, page numbered documents;

(b) directed to the findings of Member Isaksen in Hallmann v Southern Cross University [2022] NSWPIC 292 who found:

(i) The Respondent caused the aggravation of the Appellant's pre-existing ME/CFS (at [92] [104]) on 18 May 2020; and

(ii) The Respondent caused the aggravation of the Appellant's pre-existing spinal injuries (cervical, thoracic and lumbosacral) on 18 May 2020 (at [103]-[104]);

(c) directed to the Respondent's admission that the 15 October 2022 motor vehicle accident on 15 October 2022 was their responsibility and further aggravated the already aggravated pre-existing ME/CFS and caused further aggravation (Submission pp 102, 104);

(d) directed to the Respondent's admission that the 15 October 2022 motor vehicle on 15 October 2022 was their responsibility and further aggravated the already aggravated pre-existing spinal injuries and caused new ones (submission, pp 102-104);

(e) directed to the pinpoint location of each occasion that the medical evidence demonstrated that Dr Bird's opinion that the compensable conditions were lifelong and required lifelong medical treatment as set out below.

(i) Lifelong Conditions:

1. ME/CFS and FM are lifelong conditions (Submission p 144; ARD ... pp 1,298, 1,327-1,328, 1,342-1,343);

2. ME/CFS has no recovery (Submission p 144; ARD ... p 1,298);

   1. The ME/CFS was aggravated by the employer and by the terminations of treatment by the insurer (Submission p 144; ARD ... pp 1,342-1,343, 1,456);

   2. The spinal injuries (which involves a number of injuries along the spine from cervical [to] the lumbosacral regions) are likely to be lifelong (Submission p 144; ARD ... pp 1,327-1,328, 1,342-1,343);

(ii) Both lifelong conditions require lifelong treatment/management (identified as physiotherapy, chiropractic, exercise physiology, personal trainer and gym) and that expressed as:

1. The Physiotherapy for the aggravation of the ME/CFS and FM is lifelong (Submission p 144; ARD ... page 1,298, 1,344, 1,456);

2. The Chiropractic for the aggravation of the ME/CFS and FM is lifelong (Submission p 144; ARD ... pp 1,344, 1,336-1,337, 1,456);

   1. The Exercise Physiology for the aggravation of the spinal injuries is lifelong (Submission p 145; ARD ... pp 1,349-1,351; 1,456)

   2. The Physiotherapy for the aggravation of the spinal injuries is lifelong (Submission p 145; ARD ... pp 1,344, 1,456);

   3. The Chiropractic for the aggravation of the spinal injuries is lifelong (Submission p 145; ARD ... pp 1,344, 1,456);

   4. The Exercise Physiology for the aggravation of the spinal injuries is lifelong (Submission p 145; ARD ... pp 1,349-1,351, 1,456);

(f) For absolute clarity - the Personal Trainer carries out the Exercise Physiology program in a gym setting up under the supervision of the exercise physiologist (ARD ... p 1,348) - ergo, the PT and Gym Membership are lifelong requirements because they are inherent to the exercise program. Dr Bird was explicitly clear that the Appellant 'will require life-long maintenance by way of ongoing exercise' (Submission p 145; ARD ... p 1,456);

(g) The Appellant submits that the above statements and extracts MUST be read in the context of Dr Bird's complete report of 13 August 2023 (ARD ... pp 1,248-1,520) and particularly the SMART plan (ARD ... p 1,456-1,523). Dr Bird makes remarks about the treatment/management (ie physiotherapy, chiropractic, exercise physiology, personal training and gym membership) throughout the report - which are of relevance. He specifically addresses the reasonable necessity of the treatments as follows:

(i) Physiotherapy (ARD ... p 1,307-1,329);

(ii) Chiropractic (ARD ... p 1,330-1,338);

(iii) Exercise Physiology, Personal Trainer and Gym Program (ARD ... p 1,338-1353."[23]

1. Having regard to those materials the appellant submits:

"(a) The Member correctly accepted that Dr Bird 'considers the Appellant's spinal injuries and his ME/CFS with F to be lifelong conditions that will likely require lifelong treatment' (at [142]);

(b) The Member's factual finding that there was nothing in Dr Bird's report that specifically stated that the Appellant required physiotherapy for life, is factually incorrect - it is specifically stated;

(c) The Member should have correctly found:

(i) Dr Bird expressly stated that the physiotherapy, chiropractic and exercise physiology (which includes the Personal Trainer and Gym membership) were more than likely required for life to manage the ME/CFS with FM and the spinal injuries;

(ii) That an order of lifelong treatment was, in fact, the time period that the Member should have found was given."[24]

1. The essence of the submission being in paragraph [7(c)] as follows:

(i) the physiotherapy will be required as a lifelong treatment;

(ii) the chiropractic will be required as a lifelong treatment;

(iii) the Exercise Physiology will be required as a lifelong treatment (and this encompasses the personal training and the gym membership requirements)."

GROUND 3 (incorrectly numbered 4 in the appellant's submissions): The Member erred in fact in finding that the SMART plan specifically refers to how often each treatment modality requires review

1. The appellant refers to paragraphs [74] and [144]-[145] of the reasons.
2. He refers to Dr Bird's report at pages 1,484 to 1,513 of the ARD.
3. The appellant quotes an email from the respondent to the appellant's physiotherapist referencing the SIRA Guideline and a communication between the respondent and the personal trainer setting out the principles of clinical framework for delivery of health services. He quotes the SIRA Guideline for allied health practitioners.
4. The appellant submits:

"14. There is nothing in the information surrounding the SMART goals that points to a review of the ongoing necessity of a provider or the necessity of the treatment;

1. The purpose of the 'Specific Goal' section is to set goals for the treatments, allocate responsibility for the goals to one or more practitioners/allied health personnel, the frequency of the review of the goal (not the treatment), the date for the goal to be achieved, and the period of the review. At no point does it [relate] to 'how often each treatment modality requires review' as the Member asserts. The Member correctly states that the plan 'describes 20 goals for the treatment' (at [74]);
2. The Member has expressly relied upon his finding that Dr Bird supported a review of the treatment every 8 sessions (and 24 for the Personal Trainer) (at [143]-[145]."
3. The appellant submits that Dr Bird and the providers did not intend each treatment modality to be reviewed and that the SMART plan clearly sets out:

"(i) that the Physiotherapist is to review progress of the Appellant towards Goals 1, 13 and 15 only, every 8 sessions;

(ii) that the Physiotherapist is to review progress of the Appellant towards Goals 1 to 12 only, every 8 sessions;

(iii) that the Personal Trainer is to review progress of the Appellant towards Goals 1 to 4, 6 to 12 and 18 to 20 only, every 24 sessions;

(iv) that there are Specialist Physicians who are also involved in reviews pertaining to each of the goals based on similar sessions."

"(c) the fact that the SMART plan also references the GP and specialist physicians by sessions makes it very clear that there is no intention and has never been an intention to review the necessity of any provider in the plan, on the basis of sessions."

1. The appellant submits that Dr Bird has absolutely not, as the Member finds at reasons [144], expressed an opinion that is broadly consistent with the respondent's submission set out at paragraph [86(c)] of the reasons and that is consistent with the specific requests for treatment which were made to the respondent's insurer. Dr Bird was adamant, as submitted in Ground 2, that the treatment be lifelong. The appellant then quotes the Member at [145] of the reasons.

GROUND 4 (secondly appearing): The Member erred in law and fact in concluding that he could not infer from Dr Bird's reports that the treatment that is required to be lifelong would be the specific treatment modalities of physiotherapy, gym membership, personal training and exercise physiology

1. The appellant refers to paragraph [143] of the reasons. He then relies on the submissions made with respect to Grounds 2 and 3. He does not appear to provide any additional substantive submissions in support of this ground.

GROUND 5: The Member erred in law in finding that an award of lifelong treatment would be incongruous with s 59A of the 1987 Act

1. The appellant refers to paragraphs [135] to [147] of the reasons.
2. He submits in part:

(a) An assessment as to whether a worker is a 'worker with high needs' is a separate and distinct assessment from the Workers Compensation Act 1987 removed from the assessment of whether a particular treatment is reasonably necessary or required for life;

(b) Some impairments are not, in fact, covered by the AMA 5 Guides to the Assessment of Permanent Impairment or the New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment - hence treatment can still be required at the time of the expiry of the entitlement to section 60 expenses;

(c) The Act removes all treatment after a certain point in accordance with section 59A of the Act - unless a worker is a worker with a Whole Person Impairment of greater than 20 percent - hence section 60 is subordinate to section 59A at all times, regardless of any award by the Personal Injury Commission;

(d) The orders as proposed do not offend the intent or the effect of section 59A;

(e) ...

(f) ...

1. The Appellant submits that the Member is wrong at law to conclude that an award for lifetime treatment cannot be awarded due to the operation of section 59A.
2. The Appellant submits that as a matter of law, it was open to the Member to make the award (as the Appellant submitted in the Submissions and the Response Submission, for the reasons submitted) for lifelong treatments because at all times, awards under section 60 are subject to the limitation that section 59A places upon all medical expenses."

GROUND 6: The Member erred in his discretion to award eight weeks of treatment for physiotherapy, exercise physiology and personal training, and three months for access to a gym membership

1. The appellant refers to paragraph [154] of the reasons. He relies upon his submissions in Grounds 1, 2, 3, 4 and 5. He says that the orders of the Member were wrong and that the Member's discretion was exercised on the basis of errors of fact and errors of law.
2. The appellant submits that his proposed orders are more in accord with the objectives of the scheme which he sets out at length.

GROUND 7: The Member erred in law and/or discretion in considering and/or making a finding and/or making orders with respect to the appellant's submissions on the invalidity of the respondent's s 78 notices

1. The appellant refers to paragraph [149] of the reasons. He refers to the objectives of the scheme submitting that:

"The Member was required at law to consider the Appellant's submissions with respect to the validity of the section 78 Notice."

1. He says that the failure to address the validity of the s 78 notice is contrary to the objectives of the workers compensation scheme because:

"(i) The termination was not valid from the outset, which offends the objective of fairness under the scheme because:

1. an improper termination is unfair to the Appellant and to all workers on the scheme;
2. the improper termination is contrary to securing of the health, safety and welfare of the worker, when the worker's injuries were in need of treatment;

1. the improper termination is contrary to ensuring prompt treatment of injuries and the provision of necessary medical rehabilitation;

1. the improper termination denies payment of reasonable treatment to the worker;
2. the improper termination caused deterioration and as such will cost the system more money over a longer period by increasing impairment, dependence on wages, increased treatment and increased aids - hence impairs the financial viability of the scheme and delays or prevents a return to work;

(ii) Enforcing the integrity of the issuing of a section 78 Notice is integral to the objectives of the scheme, and the Respondent should have been held to account."[25]

1. The appellant refers to Gharibeh v Secretary, Ministry of Health (NSW Health Pathology)[26] as authority for the proposition that the notice is required to identify specific parts and documents relied upon.
2. The appellant submits:

"The Respondent relied upon thousands of pages of documents, including documents it held but had not provided, documents relating to pay wages claims and thousands of documents that were irrelevant to the issues in dispute - then left it to the Appellant (an unrepresented litigant) to guess which ones were relevant, and cited sections of the legislation without pinpointing which sub-sections or sub-sub-sections which were of relevance. This [is] just not acceptable and is an abuse of their position and a negation of many of their model litigant obligations."[27]

1. The appellant submits that the approach of the respondent was not an oversight or a one-off mistake. The respondent provided four s 78 notices (inclusive of the 6 December 2023 notice) and they all failed to comply with the most basic requirements of s 78.
2. The appellant submits that "regardless of the ultimate outcome of the matter, the Respondent should have been held to account so that they do not continue to issue defective section 78 notices that harm access to the system unnecessarily and improperly, as it has, repeatedly in the case of the Appellant."[28]

GROUND 8: The Member erred in law and/or discretion in not considering and/or making findings and/or making orders with respect to the appellant's submissions on the respondent's breaches of the model litigant obligation

1. The appellant refers to paragraph [149] of the reasons.
2. He refers to Lee v O'Donnell Griffin Pty Limited[29] and Roads and Maritime Services v Moy.[30]
3. He submits that the Member was obliged to review the conduct of the respondent at the very least in the context of current proceedings, even if he felt there were issues outside the scope of the current proceedings.
4. The appellant submits that:

"(a) The failure of the Respondent to comply with Practice Directions relating to the Independent Consultant was a gross breach of the Respondent's Model Litigant Obligation by failing to act fairly and honestly in providing the vast majority of relevant documents - thereby impacting the accuracy and validity of the report and causing 12 months of loss treatment and denial of a valid claim;

(b) The failure of the Respondent to instruct the Independent Consultant of the most basic of facts (ie the fact the ME/CFS with FM was being treated (ie body wide), the fact that the lumbosacral spine, sacrum, hip, elbow was being treated, and the fact that the Appellant had a further accident on 15 October 2022 that was work related) about the extent of the injuries being treated, was a gross breach of the Respondent's Model Litigant Obligation by failing to act fairly and honestly in providing the vast majority of relevant documents - thereby impacting the accuracy and validity of the report and causing 12 months of loss treatment and denial of a valid claim;

(c) The failure of the Respondent to abide by the Consent Orders of 19 October 2022 with respect to the gastroenterological investigations for 12 months, and in fact issuing a section 78 denial (contrary to the consent orders) on 4 May 2023 (which was part of the current ARD), then walking into the current proceedings on 29 November 2023 and finally admitting it should have complied with the Consent Orders - a breach of its model litigant obligation to act fairly and truthfully, as well as pay legitimate claims and not litigate matters it knows to be a valid claim or one that has no prospects of success;

(d) Issuing four section 78 notices in March, May (twice) and December 2023, that obviously do not comply with the requirements of section 78 of the Act and even arguing with spurious submissions defending what it [knew] to be defects - a breach of its model litigant obligation to act fairly and truthfully, as well as not litigate matters it knows to be a valid claim or one that has no prospects of success."[31]

1. The appellant submits that the Member had an obligation to expose the conduct and ensure that it was subject to external scrutiny and, where appropriate, admonishment.
2. The appellant submits that it is imperative to uphold the integrity of this system and the model litigant obligations such that it would be utterly inappropriate to simply allow the respondent to continue on without consequence. The Personal Injury Commission is the correct forum and the only forum that can enforce the obligation and refer it for misconduct proceedings. It should do so now.

"Despite there being a vast amount of medical and other evidence in this matter, the issues to which this appeal relate are relatively limited, being whether the Appellant is entitled (as he submits) to the expenses claimed for life or whether the Member was correct in ordering the payment of the expenses for treatment to be limited to a specific request for treatment with a time frame attached."[32]

1. The respondent says the appellant's submissions in support of Ground 1 are confusing. The appellant submits that he specifically directed the Member to evidence by way of quotation and pinpoint referencing where the evidence that he would require this treatment on a lifelong basis is found. However, he does not provide in his submissions where the reference is to be found and perhaps provide a quotation from a doctor's report. The argument seems to be that because Dr Bird provides evidence that the appellant will require lifelong treatment, that the treatment must be treatment modalities claimed here, presumably delivered at the same frequency as presently claimed. Obviously over the course of his lifetime, the appellant's condition is likely to change either for the better or for the worse which will require review of the treatment prescribed, which may or may not mean that the treatment modalities the subject of this claim are, with time, likely to change and perhaps be eliminated altogether.
2. The respondent submits that it is not sufficient for the doctor to be of the opinion that the appellant will require exercise for life and that this will require him to have treatment by way of physiotherapy, because how that treatment will evolve in terms of how much treatment and over what timeframes is not clear from the appellant's submissions. It is submitted the appeal on this ground must fail because there is no demonstrable error of fact in the appellant's submissions.
3. Further, having found the primary fact that there is no evidence of the lifelong requirement for the specific treatment modalities claimed, the Member appropriately drew the inference against the doctor recommending the specific modalities of treatment. It is not sufficient that the appellant submits that a different inference might be drawn from the found facts, but rather it is incumbent on the appellant to demonstrate that the Member was wrong.[33]

1. In this ground the appellant submits that the Member erred in finding that he was not able to find a reference within Dr Bird's report stating that the appellant will specifically require the modalities herein claimed. It is submitted this ground in essence raises the same argument as appears in Ground 1 and therefore in response the respondent repeats its submissions made to that ground.

1. The respondent notes the misnumbering of the grounds of appeal and addresses this ground under Ground 4.

1. The respondent notes the appellant appears to have repeated the Ground 4 numbering in his appeal. In the first Ground 4 the appellant submits that the Member erred in finding that the SMART plan specifically referred to how often each modality of treatment requires review. The Member at reasons [144]-[145] makes reference to the contents of the plan and that it refers to how often each treatment modality requires review. The appellant seems to accept that it is intended that a review of his treatment will occur from time to time but submits that it should not be inferred that this would be extended to changing the modalities of treatment that he receives.
2. The respondent quotes from the "Oxford Languages" definition of "review" as "a formal assessment of something with the intention of instituting change if necessary". It is submitted that this would clearly extend in this claim to the changing of various modalities of treatment that the appellant receives and/or the frequency of the delivery of that treatment which of course might relate to forms of treatment claimed here.
3. In the second Ground 4 the appellant asserts an error of law and fact in the Member's conclusion that he could not infer from Dr Bird's reports that the treatment required to be lifelong would be the specific treatment modalities of physiotherapy, gym membership, personal training and exercise physiology.
4. The respondent submits this ground raises the same argument as appears in Grounds 1, 2 and the first Ground numbered 4. It therefore relies on its previously made submissions in response to each of those grounds.

1. In this ground the appellant submits that the Member erred in law in finding that the making of an award providing for lifelong treatment would be incongruous with the operation of s 59A of the 1987 Act.
2. The respondent submits at the present time the appellant is not a worker of high needs and therefore the operation of s 59A of the 1987 Act may well apply to him in due course. Clearly s 59A limits the payment of compensation such as the appellant claims and that limitation is incongruous with ordering that he receive the benefits claimed for life.
3. It is further submitted that the Member was correct at reasons [137] that for him to make the order that the treatment recommended by Dr Bird be afforded to the appellant for life would be speculative.
4. The appellant makes no submissions in regard to the Member's comments relating to the operation of s 60(2A) of the 1987 Act, in particular reasons [139] where the Member says that "'it is clearly the intention of the 1987 Act to allow a regular review by an insurer of an injured worker's treatment request' and that therefore to make an order as requested by the appellant for life would be incongruous with the operation of this section as well." It is submitted with respect that the Member is clearly correct.

1. The appellant submits that the Member erred in the exercise of discretion by awarding limited compensation be payable as he did. The appellant again is repeating some of the arguments raised in the grounds above and to that extent the respondent repeats the submissions that it has made in relation to those grounds.
2. Further, the appellant submits that there was sufficient evidence in the submissions sourced from the 13 August 2023 report of Dr Bird to infer that he recommends that lifelong management or treatment was the modality here claimed. The Member drew a different inference. If the appellant is correct that the inference is available (which the respondent submits it is not), "it is not enough that the President would draw a different inference. It must be shown that the Arbitrator (Member) is wrong (see Raulston)."[34]

1. At the commencement of the hearing the parties agreed what the issues to be decided were and this was not an agreed issue.[35] This ground is said to raise an issue of law or discretion but it is not clear how this is relevant to the outcome of the appeal. The appeal based on the submissions under this ground must in any event fail.

1. The complaint in this ground is that the Member erred in law or discretion in not considering and making findings or orders relating to the respondent's insurer being, as alleged by the appellant, in breach of its model litigant obligations.
2. The appellant quotes from reasons [149] from which it is clear that the Member did consider the appellant's submissions in that regard, but given that his dealings with the matter were limited to those particular proceedings he was not prepared to deal with the submission further but indicated there were appropriate authorities that the appellant might take his complaint to if he was so inclined. This is not an error of law or discretion on the part of the Member.

1. It is convenient to address these four grounds together. I commence with Grounds 1 and 2 which cover the same ground, albeit there is a slight linguistic difference in the formulation of the appeal ground.
2. It is important to appreciate at the outset that the appellant succeeded in having the issues in dispute (see [17] above) determined in his favour. The Certificate of Determination provides for the treatment disputed by the respondent in the s 78 notice dated 4 May 2023 and for the exercise physiologist. The appeal seeks a variation in the orders made by the Member, essentially to provide that the services continue indefinitely.
3. Section 352(1) does not require the appellant to be "aggrieved" by the decision subject to the appeal. There may be some issue as to whether the jurisdiction conferred by s 352(1) extends to the circumstance of this matter, but as neither party has addressed this issue I have proceeded to determine the appeal notwithstanding some reservation as to jurisdiction.
4. Grounds 1 and 2 raise a semantic difference of opinion between the appellant and the Member as to the meaning of the word "lifelong treatment" in Dr Bird's reports.
5. The Member plainly contemplated that the appellant may require in the future further treatment in the modalities the subject of the present claim.[36] However, the Member did not regard Dr Bird as indicating that the specific treatment modalities or the particular frequencies at which the treatments were afforded to the appellant should continue for the balance of the appellant's life.
6. The appellant has referred to specific parts of his submissions to the Member which directed attention to Dr Bird's reports. However, those references do no more than emphasise that the appellant's medical conditions are likely to be "lifelong".
7. Dr Bird's report of 13 August 2023 at various points says that the conditions from which the appellant suffers are lifelong conditions.
8. For example, by reference to the pagination in the report, at p 45 he says: "ME/CFS is a lifelong condition. There is no recovery." At p 75 he says: "The achievement of these goals will likely take years. The treatment of the spinal injury is likely to be life-long. The ME/CFS with FM is life-long." At pp 86-87 Dr Bird says this:

"The NICE Guidelines provide very specific advice with respect to the issue of a flare-up of a deterioration in the ME/CFS:

1.11.15 Agree with the person how to adjust their physical activity during a flare up or relapse. This should include:

• providing access to review and support from a physiotherapist in an ME/CFS specialist team
• stabilising their symptoms by reducing physical activity to within their current energy limits.
• only once symptoms stabilise and the person feels able to resume physical activity, establishing a new physical activity baseline.

1.11.16 Advise people with ME/CFS after a flare-up that the time it takes to return to the level of physical activity they had before varies from person to person.

It is within these bounds that Mr Hallmann's physiotherapy and exercise program operates - noting the risks and limitations that EML and their Independent Physiotherapist have not accounted for."

1. The point of course is that there will be a variability in the type of activity and treatment required to respond to the variability in the condition.
2. Later, at p 89, Dr Bird says: "Mr Hallmann's injuries are life-long."
3. At p 91 he says:

"Mr Hallmann will likely require life-long management of the spinal injuries and this will necessitate participant [sic] in physiotherapy and chiropractic to arrest deterioration and alleviate exacerbations."

"In my view, treatment levels for physiotherapy would decline in line with the reduction in exercise. Given the extent of the injuries and the fact it has been so aggravated by the obstructive behaviour of the insurer and the occurrence of the October 2022 car accident, it is highly probable that Mr Hallmann will require life-long maintenance by way of ongoing exercise. As such he will require physiotherapy to arrest deterioration and alleviate the exacerbation of day-to-day life and the effects of the exercise (noting it aggravates his ME/CFS with FM)."

1. What Dr Bird's report establishes is that the conditions from which the appellant suffers are lifelong and will require doubtless lifelong medical treatment. But that is not the same as saying the appellant should receive precisely the same treatments for the same frequency for the rest of his life.
2. What the Member declined to do was make an order that the specific treatment modalities should be provided to the appellant at the same frequency identified in the requests for treatment for "life".
3. Rather the Member made an award in favour of the appellant in accordance with the specific requests for treatment for which the respondent had refused liability. These were discrete claims for benefits which the Member determined should be provided. The Member determined the claims denied in the s 78 notice and the exercise physiologist.
4. The Member expressly contemplated that there may be occasions when further treatment is required. He said:

"If, as expected, the [appellant] then requires the treatment modalities to be further approved following the expiry of the time frames in my order, he will need to make an appropriate claim upon the respondent in this regard. I currently make no findings regarding the [appellant's] entitlements following the periods referred to in my order."[37]

1. The Member acted upon the specific requests made by the treatment providers in accordance with the directions given by Dr Bird to them. There is no error on the part of the Member in making an order in accordance with the specific requests which were disputed by the respondent.
2. Furthermore, the Member was correct in directing attention to the absence of a statement by Dr Bird with specificity beyond that contained in the treatment provider's request. The thrust of Dr Bird's opinion is that the conditions from which the appellant suffers are "lifelong" and that at different times, treatment in the form of physiotherapy, chiropractic treatment, exercise physiologist and gym treatment will be required; on those occasions a request for such treatment supported by appropriate evidence should be dealt with by the insurer on its merits.
3. In relation to Ground 3, the Member said this at reasons [74]:

"Importantly, the doctor's 13 August 2023 report also contains (as its fifth annexure) a summary plan in relation to the [appellant's] overall treatment for his accepted injuries, which describes 20 goals for the treatment, some of which are described however as only possible or even remote. The date for the achieving of the goals is stated to be 31 May 2025. The plan however specifically refers to how often each treatment modality requires review, which includes:

(a) physiotherapy being reviewed every eight sessions;

(b) exercise physiology being reviewed every eight sessions, and

(c) personal training being reviewed every 24 sessions."

1. The Member correctly noted[38] that Dr Bird outlined how often the appellant's treatment modalities would require review and that those review requests were consistent with the specific requests for treatment made to the respondent's insurer.
2. The Member concluded from that material that he should make orders in accordance with the specifics and that he "currently" possessed no accurate evidence as to a specific timeframe for those treatment modalities other than the requests referred to.[39]
3. The SMART plan[40] and the treatment requests from the service providers identified by the Member at reasons [37] led to the conclusions drawn by the Member which provide an appropriate basis for the inference drawn by the Member as to the end date of the services that he was concerned to determine.
4. Contrary to the appellant's submission, the inference from the SMART plan is that the treatment modality will be reviewed as to whether it should be continued and, if so, for what further period.
5. The SMART plan does not limit the review. The respondent is correct in its submission that "review" is used in the SMART plan to connote an assessment of something with an intention of instigating change if necessary. There is nothing in the SMART plan limiting the word "review". The inference from the SMART plan is that on review by the treating doctors the plan in all aspects would be subject to further consideration as to its efficacy and continued appropriateness. A particular treatment modality under consideration might be confirmed, varied or discontinued.
6. Ground 4 does not provide any separate ground of appeal.
7. Grounds 1 to 4 inclusive of the appeal are rejected.

1. The Macquarie Concise Dictionary definition of "incongruous" includes "out of keeping or place; inappropriate; ... not harmonious in character; inconsonant ...".
2. The Member's point at reasons [136] was that at some point, s 59A was likely to apply to the appellant and the clear intention of s 59A is to terminate compensation payments with respect to s 60 expenses.
3. The Member did not conclude that an award for lifetime treatment cannot be awarded due to the operation of s 59A. The Member concluded that without an assessment as to whether the appellant was a worker with high needs, to make an award for the treatment identified by Dr Bird for the balance of the appellant's lifetime would be "speculative". That conclusion was plainly open and in accordance with the context of s 60.
4. In Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski[41] Leeming JA in a decision agreed to by Beazley P and Tobias AJA provided insight as to the operation of the payment provision s 60. His Honour said:

"Section 60(1) is an indemnity provision, imposing an obligation on the employer to pay the costs of the treatment or service or related travel expenses: New South Wales Sugar Milling Co-operative v Manning [1998] NSWCC 33; (1998) 44 NSWLR 442. Subsections (2), (2A), (2B), (2C), (3) and (4) qualify and amplify the statutory indemnity in subsection (1). Subsection (5) is of a different character. The reason for its first sentence, which expands the authority of the Commission to decide disputes about prospective treatment, was that it had been held in Widdup v Hamilton [2006] NSWWCCPD 258; (2006) 5 DDCR 85 that there was no power to determine a dispute about paying for treatment which had not been undertaken."

1. The point is that while subsection (5) authorises the Commission to decide disputes about prospective treatment, that is in the context of an indemnity provision in which costs are to be incurred for prospective treatment.
2. This is apparent from subsection (5) itself which provides:

"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." (emphasis added)

1. It is to be remembered that s 60(3) provides as follows:

"Payments under this section are to be made as the costs are incurred, but only if properly verified." (emphasis added)

1. For those reasons Ground 5 of the appeal is rejected.

1. The appellant relies on his submissions in support of Grounds 1, 2, 3, 4 and 5 in support of Ground 6. For the reasons indicated above, those grounds of appeal are rejected. It follows Ground 6 is rejected.

1. Section 78 of the 1998 Act requires notice to be given in accordance with Division 3 of any decision of the insurer "to dispute liability in respect of a claim or any aspect of a claim". The contents of the notice are provided for in s 79(2) and (3).
2. The appellant complained to the Member that the 4 May 2023 notice was defective.
3. The Member, having found in favour of the appellant, found it unnecessary to determine whether the notice was defective or not.
4. There was before the Member no issue as to the adequacy of the s 78 notice. The Member was accordingly not required to determine whether the notice was defective. The parties' dispute was determined by the Member on its merits.
5. I accept the respondent's submission with respect to this ground of appeal which is dismissed.

1. The appellant complains that the Member did not consider the appellant's complaint that the respondent was in breach of the model litigant obligations.
2. However, that is simply not correct. The Member said that he did not consider it his role to investigate the dealings further or prompt further investigation, but that so far as the matter before him was concerned "the respondent has acted courteously and in accordance with the guiding principle of the Commission (pursuant to s 42 of the Personal Injury Commission Act 2000 [sic, 2020] in assisting [him] to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings - the respondent did not delay the resolution of the proceedings, making its submissions in a timely manner."[42]
3. The Member's function and jurisdiction was limited to the material before him and the resolution of the parties' dispute as defined by the issues. The issues did not extend to a general excursus into the respondent's conduct at large.
4. The respondent submits that the Member did in fact consider the issue notwithstanding his statement that he did not regard it as his role to investigate the dealings between the parties beyond that with which he was concerned. I accept this submission which is patently correct. The Member did not commit the error of which the appellant complains. The Member did consider the issue and he did make a dispositive finding.
5. Ground 8 of the appeal is dismissed.

1. For these reasons the appeal is dismissed and the Member's Certificate of Determination dated 26 April 2024 is confirmed.

[1] Hallmann v Southern Cross University [2024] NSWPIC 209 (reasons).

[2] In some quotes this is also referred to as ME/CFS with F.

[4] Commencing at Application to Resolve a Dispute (ARD), p 1,249.

[12] (1986) 2 NSWCCR 2.

[13] [2014] NSWWCCPD 72, [86]-[89].

[22] Appellant's submissions, [5]-[6].

[25] Appellant's submissions, [36(c)].

[26] [2021] NSWPIC 343.

[27] Appellant's submissions, [36(e)].

[30] [2013] NSWWCCPD 12.

[32] Respondent's submissions, [8], citing reasons, [134].

[33] Citing Raulston v Toll Pty Limited [2011] NSWWCCPD 25 (Raulston).

[36] See reasons [134], [143]-[147].

[41] [2013] NSWCA 449; 12 DDCR 515, [12]