Goode v Racing NSW (2022 NSWPIC)

Link to Decision

Key Takeaways

In a decision from earlier this year, Member Wynyard awarded a worker the costs of relocating back to the UK following a serious spinal injury in NSW.

The Member held that owing to the reported physical and psychological benefits of accessing his UK-based support network of family and friends, relocating was ‘therapeutic treatment’ of the worker.

The evidence also satisfied the Member that the treatment was reasonably necessary, permitting an order for reimbursement of travel (relocation) costs under s60(2).

Brief Facts

The Applicant was rendered a paraplegic after falling from a horse in the course of his employment with Racing NSW.

He was originally from the UK and post-injury, returned home to be closer to family and friends.

He had asked the insurer to reimburse relocation costs, including business class flights, furniture removal and storage.

The Applicant argued that the relocation had been beneficial and therapeutic, relying on the physical and psychological benefits of his support network in the UK.

The Respondent defended the claim, arguing that the claimed expenses fell outside the scope of medical or hospital treatment and rehabilitation as defined in s59 of the Workers Compensation Act 1987 (1987 Act).

It was also argued that the travelling expenses were not payable under s60(2) in that the need for travel was not connected with obtaining treatment.

Judgment

The Applicant argued that the relocation costs fell within s59(b): therapeutic treatment given by direction of a medical practitioner. 

Member Wynyard agreed, referring to the well-known judgment of Burke CCJ in Rose v Health Commission (NSW) (1986 NSWCCR) and the more recent decision of DP Michael Snell in State of New South Wales (Central Coast Local Health District) v Bunce (2020 NSWWCCPD) and noting that:

• Treatment, in the medical or therapeutic context relates to the management of a disease or injury, and is designed to alleviate, cure or remedy the condition
• Treatment is not restricted to the provision of services
• As a beneficial provision, any ambiguity in the operation of s59 should be given a construction favourable to the worker

It was held therefore, that the therapeutic effect of the relocation constituted ’medical and related treatment’ as provided by the opening words of s59.

Additionally, and upon finding that the relocation was reasonably necessary, the relocation costs were awarded noting that s60(2) requires an employer to pay ’the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment’.

Implications

It is well understood that the definitions in s59 of the 1987 Act are exhaustive (Thomas v Ferguson Transformers Pty Ltd (1979 1NSWLR)). Accordingly, expenses are only compensable if it can be shown that they fall within the ambit of that provision.

The Commission, and the Compensation Court before it, continue to demonstrate a willingness to apply a broad interpretation of the term ‘treatment’, requiring employers and insurers to keep an open mind about the ways in which the effects of an injury might be alleviated.