Pelama Pty Ltd v Blake [1988] NSWCC 6; (1988) 4 NSWCCR 264 (15 December 1988)

[1988] NSWCC 6; (1988) 4 NSWCCR 264 (Matter No. 283-88)

PELAMA PTY LTD v. BLAKE

Compensation Court of New South Wales: Burke J

15 December 1988

ASSESSMENT AND AMOUNT OF COMPENSATION - SPECIAL PAYMENTS - MEDICAL AND HOSPITAL TREATMENT - REASONABLY NECESSARY - FACTORS TO BE CONSIDERED - TREATMENT NOT USUALLY ADOPTED BY MEDICAL PROFESSION - TREATMENT GIVING ONLY MARGINAL BUT SIGNIFICANT IMPROVEMENT - TREATMENT HAVING NO INDUSTRIAL UTILITY - TREATMENT COSTING SUBSTANTIALLY IN EXCESS OF STATUTORY PRIMA FACIE LIMITS - WORKERS COMPENSATION ACT 1987, SECTION 60 AND 61

WORDS, PHRASES AND MAXIMS - "REASONABLY NECESSARY ... MEDICAL AND RELATED TREATMENT" - WORKERS COMPENSATION ACT 1987, SECTION 60

W.H. Nicholas QC and C.R.R. Hoeben, for the appellant (employer)
B.J. Gross QC and W.G. Hodgekiss, for the respondent (worker)

Cur adv vult

BURKE J: This matter is an appeal from a decision of Commissioner Grayson wherein he decided that certain nursing costs incurred by the worker were reasonably necessary medical treatment as a result of injury. The appellant employer takes exception to that ultimate finding.

FACTS

Jon Blake is an actor, employed by the respondent. In December, 1986, in compensable circumstances, he had a motor accident. He sustained serious brain injury as a result. He was treated in a number of hospitals up to August 1987. A little prior thereto his situation was assessed by the Institute for Achievement of Human Potential. Presumably, on advice then received, the worker's mother removed him from the hospital environment, returned him to the family home and instituted the course of treatment at the centre of the present dispute. It is not the common treatment of a brain-damaged quadriplegic. It has been described, in the worker's case, as alternative medicine. It costs something over $3,000 per week.

The regime of treatment involves stimulation of the patient, physically and mentally. The physical "patterning" is carried out by a trained nurse and a number of volunteers. Essentially the worker's trunk and limbs are passively moved in a purposeful activity, such as crawling. Or the worker is placed on an inclined board and encouraged to propel himself down it by minimal active movement. A variety of other sensory stimuli are involved. Dr W.J. Burke examined the worker in February 1988. He described his general status as vegetative. He heard Nurse Buckingham's description of the worker in September 1988. The doctor thought there had been marginal but significant gains.

Nurse Buckingham described the improvement. Formerly fed by gastric intubation the worker was now spoon fed, he masticated moderately chunky food, swallowed, was putting on weight. Formerly inert he could now assist with control of head movement while pillows are repositioned and the like. Nurse Buckingham deposed to "conversing" with the worker on abstract topics; the worker could signify yes or no by blinking; he understood, he had different views. The only inference of Nurse Buckingham's evidence was, despite brain damage, despite epilepsy, there was an active intelligence confined within Jon Blake's useless body which precluded, almost, communication with the world.

The treatment is repeated throughout the day. The "patterning" requires the nurse and four or five volunteers. Something between 40 and 60 people assist in Jon Blake's rehabilitation. There is clear evidence this kind of treatment could not be made available within the hospital system. It would be completely disruptive of hospital routine.

COMMISSIONER'S DECISION

The Commissioner held that the nursing cost of this treatment was a cost of medical treatment and that it was reasonably necessary that such medical treatment be afforded to the worker as a result of the injury. Explicitly the Commissioner found that the treatment had produced demonstrable and significant gain to the worker. That finding of fact is not challenged. Superficially, he appears to have concluded that because of that fact the treatment was reasonably necessary medical treatment within section 60.

GROUNDS OF APPEAL

The employer alleges the Commissioner fell into error of law in that:

(a) he did not apply the appropriate legal test to determine whether the expenses claimed were for reasonably necessary medical treatment; and

(b) he misused a statutory discretion in ordering payment of the relevant expenses.

The latter ground requires leave of the Court. The discretion allegedly misused was never identified; no argument was directed to suggest how any discretion was misused and, accordingly, leave to rely on such ground is refused.

APPELLANT'S SUBMISSIONS

The submission was prefaced with a statement of the obligation of an inferior court to an appellate court. The former will find the relevant facts; state relevant principles of law and apply those principles to the facts found: e.g. KEFT V. BORG WARNER, Compensation Court, No. 7671/87, Burke J, 12 July 1988, unreported - a decision which merely enunciated the principle of a long line of Court of Appeal authority.

It was submitted, in that context, the only relevant fact found was that the treatment had produced demonstrable and significant gains. The implicit principle of law was that such gains brought the treatment within the ambit of section 60 as being reasonably necessary medical treatment. The appellant suggested such was not the determinative criterion of what constituted reasonably necessary medical treatment and that the Commissioner had held that such was all that was necessary and sufficient to bring the treatment within section 60.

It was not contested that the regime instituted in this case was medical treatment. Alternative medicine it may be, but, presumably before the Commissioner, and certainly before me, it was acknowledged or assumed there was no AD LIMINE question whether it was in fact medical treatment at all. The gravamen of the dispute was the reasonable necessity of such treatment.

The appellant suggested a particular treatment is necessary if it be required, indispensable, compulsory, essential - the Macquarie Dictionary being the source of these synonyms. "Reasonably" was submitted to suggest fairly, usually, ordinarily, appropriately, from the same source. This latter submission appears to regard "reasonably" in the statute as modifying (or qualifying) treatment, not necessity. It suggests the section requires consideration of whether the particular treatment is fair, usual, ordinary etc. whereas it is the necessity for the particular treatment which must be such, as the statute is framed.

The appellant submitted what might be termed a modified MIGGE V. WORMALD BROS INDUSTRIES PTY LTD [1972] 2 NSWLR 29 type argument. That decision was reversed in the High Court in Migge v. Wormald Bros Industries Pty Ltd (1973) 47 ALJR 236 by that Court introducing a finding of fact not made below rather than any disagreement in principle. Essentially, the Full Court held that operative treatment of the effects of injury is not reasonably necessary medical treatment where the worker suffered no incapacity in consequence of the injury. Elective surgery for some minor physical consequence of injury, itself producing no incapacity, does not fall within the ambit of the former section 10, present section 60 - it has no "industrial" purpose - it does not seek to relieve any industrial or economic consequence of the injury since there were none antecedently. The appellant was prepared to accept GARNERO V. AUSTRALIAN IRON & STEEL PTY LTD [1976] 50 WCR (NSW) 28 that it was appropriate to consider the effects of treatment both in a social context as well as a work context. However, it was suggested, the Workers Compensation Act 1987 was essentially concerned with the effects of injury in a work context and section 60 was no exception. The effects of treatment on working capacity was a factor to which regard should be had in assessing the reasonable necessity of medical treatment. The weight of such factor may vary widely from case to case but it was a factor to be taken into account and the Commissioner had not considered it at all.

Reference was made to the use of "customary" as an adjective in section 61 in aid of implying that "reasonably necessary medical treatment" in section 60 connoted customary medical treatment for the particular condition rather than some extraordinary, unusual regime.

While initially cast much wider, the appellant ultimately maintained a submission that cost PER SE was an element that hadto be evaluated in determining whether a particular form of treatment was reasonably necessary. In essence there had to be some form of cost/benefit analysis. Marginal gain at maximal cost was not sufficient per se to render the treatment reasonably necessary.

Also, it was submitted, that an order under section 60 purporting to order the employer to pay a specified weekly amount for an indefinite duration into the future was not a form of order open to the Commissioner. On its face, it would require payment to continue even though the treatment had ceased, at least until the Commissioner could be approached to terminate his order. The respondent worker did not cavil with that contention conceding the form of order was defective, though not the substance.

It was also submitted that the limitations of the total cost of medical and hospital treatments in section 61(3) and section 62(5) - albeit with a discretion to increase the limits - suggested that very expensive forms of treatment were either precluded from being, or unlikely to be, reasonably necessary.

THE TRIAL BEFORE THE COMMISSIONER

Perhaps ironically, both parties have been reluctant to define the appropriate criteria to be adopted in determining whether or not a particular modality of treatment is reasonably necessary medical treatment. Inquiry of the bar table suggested an equal reluctance before the Commissioner. The present appellant then clearly submitted that the expenses claimed were not those of reasonably necessary medical treatment. The notes of counsel then appearing for the worker suggested the present appellant suggested a cost/benefit analysis as a relevant criterion, that there needed to be some correlation between the degree of "gain" and the quantum of cost. There was canvassed before the Commissioner the availability of alternative treatments at lesser cost, clearly as a further criterion. Before me the appellant has suggested that treatment at Coorabel Rehabilitation Hospital would be regarded as "reasonable" by the employer. In that regard it was suggested from the bar table, by the appellant, that the cost would approach $2,500 per week. It appears that it was put to the Commissioner that the limitation (at least initially) of the total cost of all medical and hospital treatments respectively to $10,000 in sections 61(3) and 62(5) suggested that extraordinary costs were, at least PRIMA FACIE, not contemplated in respect of reasonably necessary medical treatment. Those suggestions apart it appears that the matter proceeded before the Commissioner with minimum emphasis on legal criteria and maximum emphasis on questions of fact.

The transcript of the evidence of Nurse Buckingham, Dr Burke and Dr Thomas was the subject of analysis by both parties before me. The major thrust of the totality of that evidence was that this treatment was working, it was producing results, it was improving the worker's state. The cross-examination was not devoted to eliciting ancillary matters that might be relevant but to suggesting the marginability of improvement, the subtlety of the INDICIA of such improvement, the potentiality of such improvement independently of the treatment. The worker's case indubitably appeared to be that the "gains" justified treatment. It was contested by the employer within such parameters. As is not infrequently the case the totality of the transcript and exhibits of the trial before the Commissioner were not available to the Court. Neither party regarded it as a matter of consequence. And this not withstanding that the unavailable portion was the entirety of the present appellant's case. Apparently both parties considered the matters raised on appeal as adequately resolvable without reference to the additional material. I tend to presume that such further material was probably directed to much the same factual matters as were canvassed in the worker's case, though probably expressing contrary conclusions. So, it appears to me, the factual issue litigated before the Commissioner was the degree of any benefit to the worker. At least it so appears from the available transcript.

PRINCIPLE

The criteria for determining whether treatment was reasonably necessary were considered in ROSE V. HEALTH COMMISSION OF NSW, Compensation Court, No. 9237/82, Burke J, 4 July 1986, unreported. During the appeal, counsel were referred to the judgment. There being no reports of decisions of this Court (or the Workers' Compensation Commission) after 1979 they were not aware of it. The only formal dissent expressed by Nicholas QC was to one of a series of tabulated conclusions which suggested:

"3. Any necessity for relevant treatment results from injury where its purpose and potential effect is to alleviate the consequences of injury."

Nicholas QC emphasised that the appellant did not concede that the capacity to alleviate meant the treatment was reasonably necessary. The gravamen of the statement was not intended to suggest such. It proposed merely that if it were granted that a particular treatment was reasonably necessary then the "results from" test would be satisfied if the treatment was directed to alleviating the effects of the work injury. The determination of reasonable necessity required consideration of a variety of other factors.

Those other factors were suggested to include consideration of:

•	APPROPRIATENESS
•	ALTERNATIVES
•	COST
•	EFFECTIVENESS
•	ACCEPTANCE.

There is a deal of overlapping and each factor is not separate and distinct. Briefly the scope of these criteria was suggested to be as follows:

APPROPRIATENESS

It was suggested that all medical treatment was purposive. It sought to mitigate the effects of injury; sometimes to cure; sometimes to alleviate; sometimes to merely sustain status quo; sometimes merely to retard accepted progressive deterioration. If a particular regime lacked the capacity to achieve these aims it was inappropriate.

ALTERNATIVES

Consideration of other avenues of treatment was required in determining whether the particular form undertaken was reasonably necessary. If the treatment in question merely retarded progression of the consequences of injury and other treatments would cure the condition or substantially alleviate the problem it was incumbent to make the value judgment concerning necessity with this in mind.

COST

If various alternatives existed for treatment the relative costs were a factor to be evaluated. There must be some cost/benefit analysis. If a high cost, minimally effective regime had been instituted where a low cost, maximally effective alternative existed the former may well be adjudged not reasonably necessary. Even where but one avenue of possible treatment existed it may be that its effectiveness was so minimal and its cost so great that it could not be considered reasonably necessary.

EFFECTIVENESS

Implicitly in what was just stated, the degree to which the treatment could alleviate the consequences of injury was a factor in assessing its necessity.

ACCEPTANCE

Acceptance of a particular regime of treatment by the medical profession was to be considered. Treatment regarded as routine by the medical profession was unlikely to be considered other than reasonably necessary. The probabilities were otherwise where what was being considered was not a medically accepted regimen. ROSE V. HEALTH COMMISSION OF NSW was such a case. Some substantial parts of the treatment undertaken there were rejected by a number of Royal Colleges, including those of Physicians, Psychiatrists and Pathologists, as having any sound medical bases. And, indeed, there had been minimal, if any, response by the patient apparent as a consequence of the treatment.

In general it was suggested that a particular form of treatment would be regarded as reasonably necessary where prudent consideration of the various factors lead to the conclusion that such treatment should be afforded to the worker.

ANALYSIS OF COMMISSIONER'S REASONS

The Commissioner certainly considered the effectiveness of this particular nursing treatment. Implicitly he considered its appropriateness. There can be little doubt that the Commissioner was impressed by the "significant and demonstrable gains" made by the patient while undergoing this treatment. Clearly he took account of the lack of response by the patient to serial hospitalisations previously. It was not contested at the hearing that the worker was essentially comatose or vegetative at the inception of this treatment and had exhibited a degree of improvement while undergoing this nursing regime. It was the marginality of the improvement, not its existence, that featured in the evidence before the Commissioner. It was not suggested that the treatment was incapable of effecting improvement.

There appears no reason to assume that the Commissioner was unaware of the alternative of hospitalisation in an institution such as Coorabel. A deal of evidence was directed to the nature of treatment likely to be administered there and to the impossibility of this particular regime being administered in the hospital environment. Before me that was the only alternative canvassed and the transcript suggests it was so before the Commissioner. While nothing explicit in the Commissioner's reasons refers to the choice between such alternatives such a choice was clearly proposed.

With regard to cost the Commissioner was certainly aware of the cost of this nursing treatment, marginally more than $3,000 per week. Presumably he was aware of the cost of alternative treatment at an institution such as Coorabel. Before me it was suggested from the bar table to approach $2,500 per week. If he was not made aware of such it seems fairly specious to now complain that he did not evaluate the relative costs of the different forms of treatment. The present appellant had the opportunity to put the Commissioner in the position to make such an evaluation. If it forsook such opportunity there appears no ground for complaint that it was not done. If the Commissioner was so aware then it would seem that he considered the relative appropriateness and effectiveness in terms of the margin of difference in cost of the two alternatives. Apropos of the claims under the "Table of Maims" the Commissioner clearly envisaged that the treatment may have some effect in mitigating those claims. He clearly considered that the duration for which the treatment continued might be limited. Essentially he said the treatment to date was reasonably necessary but that may not be so in the relatively immediate future. That betokens adverting to a cost/benefit analysis not merely in the future but also at the present time.

On the matter of the medical acceptability of this form of treatment there is no comment in the Commissioner's reasons.

However, the case adduced by the worker proceeded from the outset on the basis that this treatment was "alternative" medicine. It was not the usual or customary medical treatment for the worker's condition. Presumably the present appellant did not dissent from that proposition. Incontrovertibly the Commissioner was at all times aware that he was considering a novel and unusual form of treatment. There appears little reason why his reasons would advert to a matter that was never in issue.

APPELLANT'S SUBMISSIONS CONCERNING COMMISSIONER'S REASONS

The Commissioner exercising his judicial function, was constrained, to the same degree as any judicial officer, to find the relevant facts, state relevant principle and apply such principle to the facts found. However, the degree to which he must fulfil this obligation is conditioned by the manner in which issues are presented to him for resolution. He is not obliged to canvass every legal possibility potentially arising in a matter. He is resolving a dispute within the parameters presented by the parties. Generally the nature and extent of the duty to give reasons has been considered in this State in a long line of cases including CARLSON V. KING (1947) 64 WN (NSW) 65; PETTITT V. DUNKLEY [1971] 1 NSWLR 376; HOUSING COMMISSION OF NSW V. TATMAR PASTORAL CO PTY LTD [1983] 3 NSWLR 378 and SOULEMEZIS V. DUDLEY (HOLDINGS) PTY LTD (1987) 10 NSWLR 247.

In this matter it is not put forward as a ground of appeal that the Commissioner failed to give reasons or any adequate reasons for his decision. It is thereby accepted that the reasoning process of the Commissioner, disclosed in his reasons, was adequate in the circumstances.

What is suggested is that, having found the facts, it is implicit from such findings or lack thereof that the Commissioner must necessarily have misapprehended the correct legal basis for his ultimate finding of mixed law and fact that the particular treatment in this matter was reasonably necessary, and thereby fell into error of law.

On a fair reading of the totality of the Commissioner's reasons for judgment, in the context of the factual material adduced before him and the ambit of the submissions apparently made to him, this appears to me to be unduly harsh on the Commissioner.

The central focus of the evidence adduced before the Commissioner was on the nature and degree of any benefit of the treatment for the patient. The evidence was conflicting. There was adequate evidence, and such is unchallenged, that entitled the Commissioner to resolve that issue as he did. He was entitled to find that the worker had made gains while undergoing this particular treatment, they were demonstrable and they were significant. Having so decided he had resolved the principal issue of fact tendered for his determination.

It is then suggested that the Commissioner used these findings, and these alone, to spring to the ultimate conclusion that the treatment was reasonably necessary and that such a leap is unjustifiable in law. Again, it appears to me, that such a conclusion, in the context of the trial, is not sustainable.

Clearly the Commissioner was considering two alternatives: home nursing as was being provided or hospitalisation. The uncontradicted evidence was that the patient had been hospitalised for lengthy periods without discernible improvement. The Commissioner accepted that he had improved under the home nursing regime. He clearly accepted the evidence that such a regime of treatment could not be furnished in the hospital environment. There was clear evidence that such was the case and, within the available transcript, no suggestion to the contrary. It does not appear to have been a contested question of fact the resolution of which required any explicit reasons - if a question of fact, even when the evidence is contradictory, requires any more reasons than the choice of one alternative.

The Commissioner was aware of the cost of the treatment actually afforded the patient. His opening remarks suggested such cost between 16 August 1987 and 3 September 1988 amounted to $89,925 - over the approximate 55 week period, some $1,635 per week. He noted that the present appellant had paid, in respect of that period, some $57,400 or about $1,044 per week. It would seem that the only reasonable inference open to him was that the present appellant regarded the latter amounts as a cost of reasonably necessary medical treatment. He was thereby clearly aware of the incremental difference between the cost of the treatment contended for by the worker and that which the employer regarded as properly payable. The only alternative to the home nursing regime canvassed was full-time hospitalisation. The differential cost was around $600 per week. Figures suggested to me from the bar table suggested the base figures to be considerably higher now but the differential to be of the same order.

In the way in which the trial was conducted before the Commissioner where his recitation of fact clearly indicates an awareness of the cost differential of the alternative proposals it appears to me unwarranted to assume that, having raised the question quite clearly, the Commissioner thereafter dismissed it from consideration in forming his ultimate view.

As Mahoney JA said (at 272) in SOULEMEZIS' case commenting on the judgment of Lord Scarman in the Privy Council's decision in SELVANAYAGAM V. UNIVERSITY OF THE WEST INDIES [1983] 1 WLR 585 at 587, 588.

"... But their Lordships did make clear that there is no ground for reversal in the fact that, having made clear the facts on which he based himself, the learned judge did not detail the steps by which he proceeded from those facts to his final conclusion."

In reciting the facts referred to above the Commissioner presumably considered them germane. The question to be decided was whether particular treatment was reasonably necessary. He decided it was. He did not explain how he applied those facts in coming to that decision. That they were considered relevant seems clear. That they were in fact, or rather in law, relevant is equally clear. The lack of clarity in explaining the use of those facts does not, in the circumstances, suggest to me appellable error of law. Perhaps more so of circumstances developing where continuance of the treatment may be unwarranted.

SOULEMIZIS was itself a case where the pivotal fact that apparently influenced the Judge below appeared logically incapable of warranting the ultimate finding (vide per McHugh JA at 282). Here the Commissioner has recited facts which have a logical bearing on the question to be decided. Implicitly that suggests he weighed them in the balance in arriving at his ultimate conclusion.

It therefore appears to me that explicitly or implicitly, on consideration of the judgment as a whole and in the context of the contested factual matters before him, the Commissioner has taken account of the various elements that should be considered in evaluating the question of whether the particular treatment was reasonably necessary medical treatment. His judgment deals specifically with the matter of factual dispute most strenuously contested and only discursively with the peripheral matters. That is appropriate where the issues are so presented.

This is not a case where the appellant suggests there was no evidence on some material matter essential to the ultimate decision. It is rather that there is such evidence but the judgment leaves it uncertain as to the weight if any attached to various matters so as to raise doubt as to correct application of principles of law. As suggested above I do not believe it to be so.

APPELLANT'S OTHER SUBMISSIONS

For reasons stated above and more fully in ROSE V. HEALTH COMMISSION OF NSW I do not believe the Legislature did, or intended to, limit medical treatment to forms of treatment usually or ordinarily adopted by the medical profession generally for treatment of the particular injury.

The grounds of appeal raised no question of whether this particular form of treatment was in fact medical treatment. Apparently no such submission was made to the Commissioner. In so far as any such submission may have been imported on the appeal it appears to fall outside the grounds of appeal and no amendment of such was sought, and consequently not open to the appellant to so argue.

In so far as the appellant submitted that only usual and ordinary forms of treatment can be found to be reasonably necessary, I do not agree. As adverted to in ROSE'S case today's novelty may be tomorrow's orthodoxy. Pasteur's concept of antisepsis is now accepted whereas, when proposed, it was not universally or readily accepted. A highly unorthodox treatment may be found to be reasonably necessary though, probably, not so in most cases. In my view a quite impressive factor in evaluating such a form of treatment would be its effectiveness in alleviating the patient's problems. The more so where more conventional treatments had been essayed unsuccessfully. I do not feel that the Commissioner was precluded by the unorthodoxy of the form of treatment from finding it to be reasonably necessary. It was a matter for his judgment applying proper criteria in law. That he appears to have done.

In so far as the appellant submits the marginality of improvement and the lack of industrial utility of such improvement preclude the treatment from being reasonably necessary, again, I cannot agree. I do not regard the treatment of a quadriplegic as needing to restore some industrial utility. Such is inconsistent with a number of decisions including THOMAS V. FERGUSON TRANSFORMERS PTY LTD [1979] 1 NSWLR 216 AND MIGGE V. WORMALD BROS INDUSTRIES PTY LTD [1972] 2 NSWLR 29 is clearly distinguishable. It concerned "treatment" of a man who was fully and unrestrictedly fit with no diminution of capacity.

Again, while the Act imposes PRIMA FACIE limits on the total cost of medical or hospital treatment, there is a discretion to extend those limits which has been repeatedly exercised over a long period of time. I do not believe that such PRIMA FACIE limits suggest that very expensive forms of treatment cannot or should not be found to be reasonably necessary.

FORM OF ORDER

Having found the home nursing to be reasonably necessary medical treatment the Commissioner ordered the appellant to pay $89,925 in respect thereof in relation to the period 16 August 1987 to 3 September 1988. He then ordered the appellant to pay $3,048 per week. In respect of such treatment from 4 September 1988 to date and continuing. That implicitly suggests a finding that in future the cost will remain unaltered, either upwards or downwards. Such a finding is inappropriate. He also made a general order for medical expenses pursuant to section 60 from 16 August 1988. With such a general order the specific order becomes redundant. It is really no more than a decision that at the present time the Commissioner regards $3,048 per week as the proper charge for the particular nursing treatment.

The parties are agreed the order made is an error of form, not substance. The particular was included in the general. Section 110(6)(b) gives this Court power to substitute its own orders in an appropriate case. Where the order is erroneous in form not substance appears to be such an appropriate case. It hardly warrants referral back to the Commissioner to make a change in the form of orders which the parties agree should be made.

I merely note, in passing, that if the Commissioner rightly determined the nursing treatment to be reasonably necessary, no exception is taken to the order to pay $89,925 in respect of the stated period to 3 September 1988. It would appear possible that the sum of $57,400 referred to by the Commissioner may have been paid by the appellant in part discharge of such liability. Or it may be that it was paid as being the cost of hospitalisation which, in the appellant's submission, was the appropriate treatment though not, in fact, rendered to the worker. If the latter be the case it has not been argued before me, and presumably not before the Commissioner, that, if such be the case, that payment was mistakenly made, was not a payment in respect of actual treatment provided and therefore cannot be offset against the order made.

ORDERS

1. Leave to appeal based on misuse of a statutory discretion is refused.

2. The appeal, otherwise, is dismissed.

3. The order of the Commissioner that:

"The Respondent is further ordered to pay the Applicant's nursing costs at the rate of $3,048 per week from 4 September 1988 to date and continuing"

is deleted from his orders and award.

[His Honour then dealt with matters related to the issue of costs not calling for report - Ed]


Orders accordingly


Solicitors for the appellant: Dunhill Morgan
Solicitors for the respondent: T.D. Kelly & Co