Beatty v Johnston's Transport Industries Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Beatty v Johnston's Transport Industries Pty Ltd [2023] NSWPIC 349
APPLICANT:	Damien Beatty
RESPONDENT:	Johnston's Transport Industries Pty Limited
MEMBER:	John Wynyard
DATE OF DECISION:	14 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60(5) declaration that medicinal cannabis reasonably necessary; effect of applicant’s failure to mention earlier prescription when describing history of accepted back injury and accepted consequential neck injury; whether prescription effective when both spinal conditions resulted in fusion operations; Held – failure to mention earlier prescription not significant in context; proposed treatment needs to show alleviation of symptoms; not complete cure; applicant self-funded prescription with good result; award applicant for initial six month trial and then general order.
DETERMINATIONS MADE:	The Commission determines: 1. I find that the prescription of medicinal cannabis is reasonably necessary. 2. The respondent will pay for a six-month trial as recommended by Dr Hardy in order to titrate doses and formulation strength to determine treatment and effectiveness. 3. Thereafter the respondent will pay the costs of the provision of medicinal cannabis upon production of accounts, receipts and HIC documentation. 4. The respondent will pay the sum of $1,585 regarding past expenses.

STATEMENT OF REASONS

BACKGROUND

Damien Beatty, the applicant, brings an action against Johnston's Transport Industries Pty Limited, the respondent for a declaration that the prescription/supplied of medicinal cannabis is reasonably necessary.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the supply of medicinal cannabis reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard in person on 16 May 2023. Mr Jarryd Malouf appeared instructed by Mr Andrew Joy of Messrs Law Partners and the respondent was presented by Mr Tom Grimes instructed by Ms Tasha Tan. Ms Georgia O’Grady appeared at the beginning of the teleconference but when the matter did not resolve, she was excused.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 11 May 2023;
(c)    Reply and attached documents, and
(d)    ALD dated 4 May 2023.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS
Amendments

At the outset of the hearing, I granted leave after hearing submissions, for Mr Malouf to amend the claim firstly to seek an amount of $1,585 in the “amount sought” box regarding past expenses. Secondly, the “amount sought” box relating to future expenses was amended to delete the figure of $500. The details of the claim for future expenses were also amended to delete the claim for “cannabis oil” and substitute therefore a claim for ongoing administration of “medical cannabis”.
The insurer accepted liability for Mr Beatty’s lumbar spine injury and cervical spine condition. It paid the costs of fusion surgery to both areas of Mr Beatty’s spine. The L5/S1 anterior lumbar interbody fusion occurred on 29 October 2020 with Dr Johnny Wong, and the cervical surgery occurred on 21 April 2022 with Dr Raoul Pope.

Mr Beatty’s statements

Mr Beatty made three statements dated 19 July 2021, 17 January 2022 and 17 February 2023 respectively.[1]
[1] ARD pages 1, 12 and 24.

19 July 2021

In his first statement, Mr Beatty related that he had suffered a lower back injury in 1998, from which he had recovered, and a further injury to his lower back in around 2008, from which he also effected a complete recovery. He also suffered a further lower back injury in June 2016, from which he also completely recovered.
Mr Beatty commenced with the respondent in 2015 and he described the arduous nature of his duties as a Dogman. He said in 2017 he began to notice the onset of symptoms in his lower back but kept working until 22 June 2017 when his symptoms significantly worsened. They included pain in his left leg to the extent that he needed to use a walking stick. He attempted to return to work on light duties but had to take time off work.
He consulted his general practitioner (GP), Dr Divina Hiley, and was referred for X-rays and scans. An MRI scan on 11 August 2017 reveal pathology involving nerve root impingement. Mr Beatty was referred to a neurosurgeon, Dr Johnny Wong, who recommended surgery. An application to the insurer was refused and on 25 August 2017 Mr Beatty underwent a CT guided injection, which gave him relief for about three months, after which time the pain returned.
Mr Beatty consulted with Dr Hiley who referred him for pain management with pain specialist Dr Fitzgerald. He was also referred for physiotherapy, but found that it aggravated his pain.
Mr Beatty consulted Dr Fitzgerald on 17 November 2017 and continue to see him several times over the following weeks, but found them not to be of any benefit as the sessions were not helpful and the only treatment recommended was taking pain medication.
Mr Beatty saw Dr Hiley in January 2018, by which time the pain in his back was preventing him from standing up straight and he continued to use a walking stick on account of the radiating pain down his left leg. He was referred for another MRI on 31 January 2018 which confirmed the pathology in his back. In February 2018 he tried physiotherapy again but found that his sessions, of which there were several, did not assist.
He explained to Dr Hiley in May 2018 that physiotherapy was not helpful and Dr Hiley therefore recommended hydrotherapy. Mr Beatty found hydrotherapy to be of some assistance as the warm water provided him with relief which is one of the few treatments that alleviated his pain to some extent and he continued hydrotherapy sessions for a few weeks.
Mr Beatty continued to suffer from severe stiffness and discomfort in his lower back between 2018 and 2020, during which time he consulted with multiple physiotherapists, received numerous CT injections and self managed using heat packs, cold packs and basic pain medication. Notwithstanding, his back pain only worsened. He experienced sleep difficulties, if he sat for any extended period back pain would aggravate and his ability to bend was severely restricted to the extent that he had to use his knees to pick up and put down grocery bags.
He therefore decided to consult with Dr Wong again on 12 May 2020. Surgery was again recommended and on 29 October 2020 Mr Beatty underwent a spinal fusion at St Vincent’s Private Hospital. This failed to relieve his severe pain and restrictions.
Mr Beatty said that from 2020 to 2021 he continued to suffer severe symptoms in his lower back, which were aggravated when seated for an extended period of time, and which severely limited his activities of daily living. In this statement Mr Beatty said that his treatment consisted of GP visits and some consultations with Dr Wong. He continued to self manage his symptoms using heat packs, cold packs, basic pain medication and gentle exercise.

17 January 2022

Mr Beatty’s next statement essentially repeated the contents of his first statement, except that at [37] he added that following the surgery he developed severe pain in his neck, which he believed was sustained as a direct result of the lower back surgery. Mr Beatty spent some time in his statement explaining that he sought a second opinion after being dissatisfied with the explanations given by Dr Wong as to the origin of his neck pain, which Dr Wong had suggested was caused by his rehabilitation. He accordingly consulted Dr Pope.
Dr Pope confirmed that Mr Beatty’s neck injury was not work-related and recommended fusion surgery. Mr Beatty then said that, as he had “exhausted all other conservative measures as recommended by my treating doctors”, he thought that surgery was the last option to relieve him of the “severe pain I am in”. Mr Beatty then explained in different ways how he thought that the proposed neck surgery would be of benefit. He differentiated between the unsuccessful experience he had had with the back surgery by explaining that both Dr Wong and Dr Pope had told him there was “a really good chance” that it would eliminate his neck pain. He was told that whilst he only had a 50% chance of a good recovery from his back condition from the lumbar surgery, his treating doctors and his medicolegal expert, Dr Gehr, recommended it as being the best course of action.
Mr Beatty said from [44]:
“44. I have exhausted all other conservative measures as recommended by my treating doctors and believe very much that surgery is the last option left to relieve me of the severe pain I am in.
45. I have undertaken medication, physiotherapy and various nerve blocks/injections. These treatment options have all failed. I am still in a lot of pain.”
Mr Beatty said at [49]:
“I am in desperate need of the surgery as I am in severe pain every day.”
Mr Beatty said that his current treatment consisted of visiting his GP, consulting with Dr Pope regarding the pain and restrictions in his lower back and neck, and attempting to self-manage his symptoms through using heat packs, cold packs, basic pain medication and gentle exercise.
As he did in his first statement, Mr Beatty then described his disabilities and his restrictions in the activities of his daily living. He listed 30 disabilities, which included constant pain in his lower back, aggravation to pain in his neck and back in various activities, all of which being common every day activities such as twisting the head, nodding the head, sitting for extended periods, standing for extended periods, difficulties whilst driving motor vehicle. He also described various reactions to the weather, and emotional responses such as stress, frustration, depression, anger bouts, lethargy, loss of self-esteem and other disabilities. One of them was described as “reliance on medication”.
At [58] Mr Beatty said that he had difficulty managing self care activities such as washing himself in the shower because of the stiffness in his lower back, and of living in fear of aggravating his lower back.

17 February 2023

Mr Beatty’s third statement made the following request at [5]:
“This statement is supplementary to my previous statements taken on 19 July 2021 and 17 January 2022. To the best of my knowledge, the contents of my previous statement [sic] are true and accurate. To the extent of any inconsistencies between my previous statement and this statement, the veracity of the claims made in this statement is preferred.”
Mr Beatty summarised the objective facts stated in his prior two statements – namely that he had injured his lower back and suffered a condition in his neck as a result of the treatment he underwent for his back. He said at [6]:
“… This statement will aim to specifically address my ongoing need for treatment, in the form of medicinal cannabis.”
He stated that in 2018 he attended a medicinal cannabis clinic and there received a prescription for medical cannabis. He said at [27]:
“… I experienced almost total relief from the pain in my lower back when taking the prescribed medicinal cannabis. However, consultation alone cost over $300 and I was unable to sustain this form of treatment out-of-pocket.”
Mr Beatty said that on or about 17 January 2022 he attended his GP, who was no longer
Dr Hiley but was now Dr Sara Whimster. Mr Beatty outlined his complaints to her regarding his neck and lower back, explaining that the palexia tablets he was taking wore off and he had consequently ceased that medication.
On 3 February 2022 Mr Beatty said he consulted Dr Alan Nazha, pain specialist. He told
Dr Nazha that he tried to alleviate his back and neck symptoms by using marijuana when he had been able to afford it as other medication did not have any effect. As a result Dr Nazha referred Mr Beatty to Dr Jane Standen, chronic pain specialist. Dr Nazha also referred
Mr Beatty to a psychologist, Hamid Waqar.
On 14 February 2022, Mr Beatty told Dr Whimster that Cymbalta was having a minimal effect on his neck and lower back pain and that he wanted to restart medicinal cannabis as it significantly aided his sleep and reduced his tremors. He went to see Mr Waqar again on
22 February 2022 and told him that he had been drinking 24 beers every weekend after being sober for six years because of his neck and lower back pain and he wished to control his drinking.
On 16 March 2022 Mr Beatty again consulted Dr Standen and disclosed to her that he had periodically used recreational marijuana to medicate his lower back pain and to allow him to sleep. He also said he had previously been prescribed “purified CBD” through a medicinal cannabis clinic. An application (presumably the subject application) was made to the insurer to approve a trial of medicinal cannabis by Dr Standen, which had been rejected.
Mr Beatty then said that on 21 April 2022 he underwent cervical spine fusion procedure which achieved a measure of success, although he continued to experience some neck and arm symptoms. He consulted Dr Pope on 10 May 2022 who recommended Mr Beatty’s continued treatment by Dr Nazha and an occupational physician, Dr Azhar Khan.
Mr Beatty consulted Dr Whimster again on 8 June 2022, complaining that neither hydrotherapy nor exercise physiology was helping him. Dr Whimster prescribed slow release Palexia, but Mr Beatty found that to be ineffective also.
Mr Beatty then consulted Dr Joshua O Gabriel at Alternaleaf when he learned that the costs for medicinal cannabis had become cheaper. He was prescribed a medicinal cannabis product called Cannatrek T25 Topaz Flower on 23 June 2022.
Mr Beatty said at [18]:
“… I immediately felt relief from the throbbing aches in my neck and lower back. I was able to manage more activities because I was not so restricted by my neck and lower back pain.”
Mr Beatty said that he could walk 1 km rather than 100 m and that he “slept like a baby” when he used the product. On 3 August 2022 he told Dr Whimster that the medicinal cannabis was relieving his symptoms and he ceased taking Palexia.
On 12 August 2022 Mr Beatty again consulted Dr Gabriel. Mr Beatty had been prescribed THC oil, but Mr Beatty did not find it as effective as the Cannatrack T25 Topaz Flower. (As a result, the pleadings were amended as indicated above).
On 30 August 2022 Mr Beatty again consulted Dr Pope, telling him that his neck pain was manageable, but in his lower back pain was escalating without the use of medicinal cannabis. Mr Beatty was referred for an MRI, which was taken in September 2022.
On 14 September 2022 Mr Beatty again consulted Dr Whimster, advising him that the medicinal cannabis had significantly improved his lower back pain to the extent that his mood had also improved.
However, by October 2022. He was unable to afford the cost of medicinal cannabis and, as he put it, had to make a choice between food and medicinal cannabis. As a result, he said:
“… I was suffering from escalated symptoms again and was struggling to sleep, walk, or stand up after sitting. My mental health started declining…. And I thought about jumping in front of a bus to end it all.”
Mr Beatty consulted Dr Whimster twice more in October 2022 and it would seem rejected a suggestion that he should go back on Palexia. He underwent a cortisone injection to his left and right L5/S1 facet joints on 25 October 2022, but found that the relief was temporary and had worn off after about eight weeks. Mr Beatty tried exercise physiology sessions in October 2022 without any relief or resolution to his injuries. On 16 November 2022 he again consulted Dr Pope who advised that it was too early to consider another fusion procedure for his lower back. Mr Beatty said that he was drinking and not taking “any other painkillers.” He advised
Dr Pope that he had been taking medicinal cannabis during which time he did not need to resort to alcohol at all. Dr Pope discharged Mr Beatty from his care on 21 December 2022.
Mr Beatty said that through December 2022 up to February 2023 (presumably the date of his statement) he continued to experience severe pain in his lower back and that his functional capacity and mental health had deteriorated because he could no longer meet the costs of medicinal cannabis. He listed the same 30 disabilities that he indicated in his earlier statements.
Mr Beatty made some submissions as to the desirability of the outcome he sought, and he disagreed with the opinion of the respondent’s expert pain management specialist, Dr David Gronow. Mr Beatty said that Dr Gronow had given a “completely false” opinion when he said that with his use of medicinal cannabis in the past Mr Beatty had nonetheless remained very dysfunctional. Mr Beatty said that his functional capacity and mental health significantly improved with the use of cannabis and that, moreover, he was able to combat his “alcohol addiction.” Mr Beatty said that the use of medicinal cannabis had eliminated his need to drink because it alleviated his pain symptoms.
Mr Beatty said that he needed the treatment because he continued to suffer from constant pain in his neck and lower back. He had exhausted all conservative treatment and he said that medicinal cannabis was now “my last resort find lasting relief from my symptoms”. He said that medicinal cannabis effectively treated his neck and lower back pain and enhanced his functional capacity. It improved his ability to concentrate and he said that he wanted to improve his reading and writing but in attempting to read a book the pain in his neck and lower back would flare up so that he could not focus. In contrast, he said, he was able to read halfway through a book without a break when he took medicinal cannabis. He wanted to go to a TAFE course, Mr Beatty said, to increase his literacy and employability, and he could not sit through a seven-hour class without an effective form of pain relief, which was the medicinal cannabis. Accordingly, he said, his past medical expenses had been reasonably necessary, as was the provision of medicinal cannabis for ongoing treatment.

Dispute notices

Three dispute notices were issued dated 7 April 2022, 6 December 2022 and
10 February 2023 respectively.[2]
[2] Reply pages 1, 5 and 9.
The first dispute notice was issued following an approval request for the administration of medicinal cannabis from Dr Jane Standen. To summarise, the insurer eventually relied on the opinion of Dr David Gronow, pain specialist, who advised that the use of medicinal cannabis was not reasonably necessary.

Dr Azhar Khan

50. Dr Azhar Khan was a specialist in occupational medicine at Sydney Spine Institute, whom
Mr Beatty mentioned in his third statement in the context of his rehabilitation following his neck surgery in early 2022. Dr Khan wrote to Mr Beatty’s GP on 25 November 2021, 21 April 2022 and 16 August 2022.[3] His reports were lodged by way of his clinical notes.

[3] ARD pages 408, 413 and 411 respectively.

51.It would appear that Mr Beatty was first referred to Dr Khan following the lumbar spine fusion of 29 October 2020. He noted the concurrent issue regarding Mr Beatty’s cervical spine and he recommended that Mr Beatty be referred to a pain specialist, naming both Dr Nazha and Dr Standen.

52.In his second report Dr Khan suggested a referral to Dr Nazha for treatment of facet joint pain.
53.In his third report of 16 August 2022, Dr Khan noted that Mr Beatty had since been surgically treated for his neck by way of a double anterior cervical spine fusion at C5/C6 and C6/C7. He noted a reported variation of experienced lower back pain between 5-10/10, caused by a degenerative aetiology.
Medical evidence
Dr Peter Endrey-Walder

54. Dr Endrey-Walder reported to Mr Beatty’s solicitors at the time on 11 July 2018. He took the following history:

“On 17.7.2017 he had a CT scan of the lumbar spine which highlighted a left sided LS-S1 focal disc protrusion compressing the LS nerve root. When he reported the result at the workplace, they put him off ‘and I haven't worked since’.
About a month after the onset of the back pain he started experiencing pain going down into his left leg.
On 11.8.2017 MRI scan of the lumbar spine confirmed the disc prolapse and the impingement of the left L5-S1 nerve root.
On 21.8.2017 he was seen by Dr. Wong, Neurosurgeon, whose report on the day acknowledges the two previous episodes of back pain from work related injuries in the past. The doctor wrote ‘currently he has symptoms of spinal claudication which allows him to ambulate for approximately 10-15 minutes to a distance of approximately 500 metres before needing to rest’. There were no bladder or bowel symptoms, but the doctor was so concerned about the sequestrated disc protrusion compressing the left S1 nerve root that he recommended a semi-urgent left L5-S1 microdiscectomy.
Mr. Beatty told me that he was in fact admitted into Royal Prince Alfred Hospital for the operation but the insurance company declined to support him.
Two days later he was re-admitted as a ‘Medicare patient’ but seeing that by then he had established workers compensation claim, the surgery did not go ahead…”

55.Dr Endrey-Walder noted that Mr Beatty had attended a number of physiotherapy clinics but said “they give you a bit of a lecture and send you home to do the stretching.”[4] Indeed
Dr Endrey-Walder quoted Mr Beatty as saying (in summary):[5]
[4] ARD page 67.
[5] Ard page 68.
(i)    he slept very poorly and woke with back pain 4/10;
(ii)    sitting was the worst thing. On the recliner he could only sit slid down on his tailbone;
(iii)   he could only bend from the knees;
(iv)   any lifting caused a sharp pain;
(v)    he limped all the time;
(vi)   he was not in pain at that moment but had pins and needles;
(vii)     after 500m his leg would go numb, and he’d had falls, and
(viii)    he used a walking stick from time to time.

Dr Alan Nazha

56. Dr Alan Nazha, pain physician & interventional pain specialist at Sydney Pain Specialists reported to Dr Azhar Khan of the Sydney Spine Institute on 3 February 2022.[6] Dr Nazha took a consistent history of Mr Beatty’s treatment history and administered Psychometric Tests that demonstrated Mr Beatty to be extremely depressed, moderately anxious and extremely stressed. The test showed that Mr Beatty was severely catastrophising . At that time he was being treated with Palexia. Dr Nazha said:

[6] ARD page 78.

“….[Mr Beatty] has previously trialed numerous different analgesics, but cannot recall them all. These did include previously having trialed medicinal cannabis provided by Cannabis Clinics Australia. He stated this was the one agent that he found provided him with significant relief; however, due to the associated costs and lack of insurance coverage, he was unable to continue on this….
……..
In view of his previous responsiveness to medicinal cannabis, I do believe it will be worthwhile for him to see a specialist pain physician within our clinic who is a TGA endorsed prescriber.”

Mr Hamid Waqar

Mr Waqar, registered psychologist, also at Sydney Pain Specialists, commenced treating
Mr Beatty on referral from Dr Nazha. In his report of 22 February 2022[7] Mr Waqar recorded:
[7] ARD page 402.
“Mr Beatty described his psychological state as "terrible." Mr beatty advised he experiences low mood, feels "down all the time," and cries at night. Mr Beatty is socially isolated.
Mr Beatty advised he constantly worried about his injury and approval from the insurance company.
Mr Beatty started drinking alcohol after being sober for 6 years. He currently drinks 24 beers a weekend and exhibited problematic drinking behaviour. Mr Beatty advised he occasionally consumed marijuana which was effective in reducing his pain, anxiety, and cravings for alcohol.”

58.Mr Waqar wrote to Dr Sara Whimster on 26 October 2022, advising that in a recent consultation with Mr Beatty, severe sleep difficulty was complained of because Mr Beatty had discontinued the use of medicinal cannabis due to financial hardship. Mr Waqar noted that following the rejection of the application to the insurer for the supply of medicinal cannabis,
Mr Beatty had secured a prescription himself. However, he was unable to afford its cost.
Dr Joshua O Gabriel
59.Dr Gabriel did not advise his specialty, but his letterhead was entitled “alternaleaf,” On
16 November 2022 Dr Gabriel advised that Mr Beatty had been “approved to use medical cannabis by the Therapeutic Goods Administration (TGA) for diagnosed Chronic Back Pain”.
60.Dr Gabriel explained that he was an “Authorised Prescriber” pursuant to s 19(5) of the Therapeutic Goods Act 1989. He prescribed:
“Cannatrek T25 Topaz Flower – 10g – For inhalation
SpectrumRed THC Oil – 40ml – For ingestion.”

61.Dr Gabriel said:
“On his current script Damien Beatty is able to order, but not necessarily use, two units of each product every 14 days, with four repeats of each product (Total of 10 units for each product)….
….
Damien Beatty completed the initial onboarding process on June 23, 2022, involving consultations with myself and an Alternaleaf Registered Nurse. Follow-up consultations are completed at approximately 6 – 8 weeks post initial doctor consultation to review prescription efficacy. Damien Beatty’s management plan now involves follow-up appointments with his GP on a regular basis and with myself and on an as required basis.”

62.Dr Gabriel noted that his last consultation with Mr Beatty had been on 12 August 2022.
63.Dr Gabriel noted that Mr Beatty agreed to follow his dosage recommendations, and he explained the dangers attendant on using medicinal cannabis. He said that it was the responsibility of patients to communicate with their GPs regarding treatment. He said:
“Efficacy of Daimien Beatty’s treatment is measured by the successful management of his symptoms. For example; reduction in pain, improved sleep. A sustained reduction in symptoms and improved quality of life would be considered a reasonable outcome of treatment. Furthermore, continued optimisation of medicinal cannabis is a subsequent treatment goal - maximising the therapeutic effects of medicinal cannabis through minimal dosage possible.”

Dr Jane Standen
64.On 16 March 2022 Dr Standen, pain physician & interventional pain specialist, wrote to
Dr Sara Whimster, the applicant’s GP at Life Medical Clinic Bexley. Dr Standen said that
Mr Beatty had been assessed via Telehealth and gave the following background, after noting that Mr Beatty was “hoping to trial medicinal cannabis in an effort to optimise pain management”:[8]
[8] ARD page 376.
“Background:
·Work-related injury June 2017 in his capacity as a labourer.
·ALIF L5-S1 in 2020 with reduction in left lower limb radicular pain; persistent axial lumbar pain.
·Problematic upper limb radicular pain; request for cervical spinal surgery under the care of Dr Raoul Pope, awaiting approval.
·Known to pain specialist, Dr Andrew Paterson, more recently Dr Alan Nazha.
·Commercially available oral antineuropathic agents ceased. Remains on slow release Palexia 50 mg twice daily.
·Self-medicating with episodic alcohol use at present for better management of neuropathic pain. Episodically utilises recreational marijuana to facilitate pain management as well as sleep.
·No history of suicidality. No history of polypharmacy misuse.”

65. Dr Standen noted Mr Beatty had previously been prescribed purified CBD through a medical cannabis clinic.

66.Dr Standen’s request for approval to the insurer was also dated 16 March 2022. It stated:[9]
[9] ARD page 378.
“Sydney Pain Specialists is seeking approval:
•       Six (6) month trial of medicinal cannabis.
•       Approximate cost is $3000 but will vary in accordance with product trialled, active ingredients and dosage.
•       Biochemical and clinical tests may be require
The patient will be monitored by prescribing/requesting doctor at Sydney Pain Specialists on a regular basis according to clinical need. The patient will complete a self-reported symptom assessment and QOL measure whenever the patient attends the clinic. The efficacy of the treatment as well as any adverse reactions will be monitored. Biochemical and clinical tests may be required.”

Dr Raoul Pope

As indicated in Mr Beatty’s statements, Dr Pope took over his surgical management from
Dr Young. Dr Pope was a neurosurgeon and spine surgeon who advised on 20 January 2022 that he had taken over from Dr Wong, after a request for approval of surgery to the cervical spine had been declined by the insurer. Dr Pope took a history that about a month after his lumbar spine surgery in October 2020 Mr Beatty was severely affected in his cervical spine, which was caused by pathology at C5 -6 and C6-7, which subsequent scans demonstrated to be worsening.[10] Dr Pope recommended a two level anterocervical discectomy, but the insurer had only approved conservative treatment.
[10] ARD page 76.

68.On 23 March 2022 a Certificate of Determination issued from the Commission noted that the insurer agreed to pay for the costs of the proposed surgery.[11] The surgery took place on
21 April 2022.
[11] ARD page 47.
69.Dr Pope reported to Dr Whimster on 30 August 2022. He said:[12]
[12] ARD page 197.
“It has been about 7 months since his cervical spine fusion surgery which has done well for him with no arm pains or altered sensations and just some residual neck pain with certain activities.
He continues to take some painkillers as well as his CBD and he will see Dr Alan Nazha pain specialist rather than Dr Glen Sheh. He would rather keep his clinicians around the Sydney Spine Institute which he is very happy with.
On examination the neck had a good range of movement to about 65% of normal in all directions. There was no further wasting of the upper limbs with normal strength and no altered sensation.
He is more concerned about his lower back which is causing increased pain. There is no leg pain or altered sensation and the stiffness in the legs have improved over time. He mobilises independently.
The back pain is worse with prolonged sitting and with bending and twisting which is limited.”

70.In a report addressed to Dr Whimster dated 16 November 2022, Dr Pope noted that it was then nine and a half months since he had performed his operation. He said:[13]
[13] ARD page 89.
“The only negatives is that he is drinking 2 cartons of beer a week and not taking any other pain killers. When he was on the Cannatrek Topaz Flower vaping cannabis he was not drinking any alcohol. Unfortunately cannabis CBD oil does not work anywhere as effectively as the vaping.
He is seeing an independent medical examiner and one of the topics will be to discuss this issue. Unless the vaping cannabis is registered under the TGA it will unlikely be approved by the insurer.”

71.On 9 December 2022 Dr Pope advised:[14]
[14] ARD page 229.
“2. The proposed treatment of medical cannabis as recommended by a pain specialist Dr Jane Standen is reasonably necessary and is best practice management. He has tried and failed numerous analgesic options and is unfortunately self-medicating with alcohol to help with his pain management, which is not ideal at all. The strong recommendation to supplement pain management with the necessary cannabis oil is paramount to his overall success and to prevent relapses of alcohol abuse and psychologic and physical demise. He has been finding certain cannabis agents to be very effective in managing his pain and it is only fair and in the patient's best interest and within the rights of work cover legislation for him to have that provided to him.
3. Mr Beatty has exhausted all the recommended conservative treatment options available over various clinicians and over a long period of time. The proposal for the medical cannabis is very reasonable given the failure of other options.”

72.In his report of 21 December 2022, Dr Pope said:[15]
[15] ARD page 93.
“As part of the settlement he will be looking at trying to have medical cannabis approved as this controls his pain and stops him from self-medicating with alcohol.”

Dr Sara Whimster
73.As noted in his statements, Mr Beatty had changed his GP from Dr Davina Hiley to
Dr Whimster by January 2022. Dr Whimster wrote to “Vicky” at the insurer on
24 November 2022, supportive of the benefits that medicinal cannabis could bring to
Mr Beatty’s condition.[16]
[16] ARD page 94.
74.Dr Whimster’s notes were also lodged.[17] In her above report she said that she first saw
Mr Beatty on 5 July 2021, but the notes dated back to 25 June 2020, when Mr Beatty was under the management of Dr Glorina Susanto until Dr Whimster took over his care on
7 July 2021.
[17] ARD page 316.
75.The notes confirmed, inter alia, that:
(a)    25 June 2020 Mr Beatty said he had been shearing since 12 yrs old. He was under the care of Dr Wong and awaiting lumbar surgery. He had benefit from five steroid injections in his back. He had tried multiple different type of analgesia including Endone and Lyrica with minimal benefit. He admitted to being an alcoholic with no friends or family, but had been sober until April 2020. His pain was extremely disabling requiring presentation to hospital;
(b)    29 June 2020 Dr Sustanto had seen Mr Beatty with “foot drop” in 2017 when he declined operation;
(c)    26 November 2020 he was smoking marijuana and cut his cigarette habit to 10 per day. “Looks more relaxed”;
(d)    29 May 2021 he was an ex-alcoholic, not having drunk for five years. “Has used periodic experimental ice about 10+ years ago.” Walked stiffly;
(e)    7 October 2021 Mr Beatty was “hobbling, not able to stand up straight”;
(f)    4 November 2021 he was “still antalgic, hunched, using hands to help getup from seated position.” Cortisone injection scheduled into neck;
(g)    20 October 2021 Mr Beatty had lost faith in Dr Wong and was given a reference to Dr Pope;
(h)    2 December 2021 reference again to Mr Beatty having lost contact in the past as used to be alcoholic “then when became sober no longer had any friends”;
(i)    21 December 2021: Endep ceased;
(j)    28 January 2022: Email to Dr Whimster stating that Mr Beatty depressed and mentioned going back to drinking after six years;
(k)    14 February 2022: Mr Beatty hoping to restart medical marijuana as it had been helpful in the past, but cost too expensive;
(l)    14 March 2022: Had meeting with Dr Standen re medical marijuana;
(m)     3 August 2022: joint and back pain relieved by medical marijuana – “provided by a friend occasionally”;
(n)    14 September 2022: doing well with medical cannabis; able to walk to Kingsgrove, sleeping better, moods improved, can sit for longer periods;
(o)    12 October 2022: needed to stop medical marijuana due to cost; restarted palexia;
(p)    20 October 2022; Mr Beatty starting to lose it; might jump in front of a bus; might start drinking again;
(q)    21 October 2022, back pain 10/10 by day’s end, and
(r)    26 October 2022: cannabis helps sleep; walking taller and getting up from sitting more easily; seeking legal advice re medical marijuana.

Dr Mark Hardy
76.The medico-legal opinion was provided by Dr Mark Hardy, whose specialties were addiction medicine, dual diagnosis, and acquired brain injury. He provided reports on
27 February 2023[18] and 11 May 2023.[19]
[18] ARD page 51.
[19] ALD 11.5.23 page 15.
77.Dr Hardy’s first report was accurate, comprehensive and detailed. He supported Dr Standen’s opinion that the treatment by medicinal cannabis was reasonably necessary. He said that it had benefitted Mr Beatty, particularly the inhalation of medicinal cannabis flower. Medicinal cannabis had:
(i)    improved Mr Beatty’s pain;
(ii)    reduced his pain;
(iii)   improved his sleep, and
(iv)   ceased his need to use alcohol to self medicate.

78.Dr Hardy acknowledged that medicinal cannabis use was a “novel treatment” but that it had been beneficial in Mr Beatty’s case. He said:
“A six-month trial of therapy should be given, with reviews approximately monthly. This will allow adequate timing to titrate doses and formulation strength, to determine treatment effectiveness.”

79.Dr Hardy made some submissions as to a report from the respondent IME, Dr Gronow, advocating that it seemed contradictory and confusing.
11 May 2023
80.Dr Hardy reported again after being asked to comment, inter alia, on a further report from
Dr Gronow, about which he made several arguments against. Dr Gronow’s conclusions.
Dr David Gronow
81.As noted above, Dr David Gronow, pain management specialist, was retained by the insurer as the respondent’s medico-legal specialist. He issued two reports dated 30 November 2022[20] and 21 April 2023.[21]
[20] Reply page 183.
[21] ALD 4 May 2023 page 3.
30 November 2022
82.Dr Gronow took an accurate history of Mr Beatty’s injuries and subsequent treatment, including the two fusion operations of October 2020 and 21 April 2022. Dr Gronow recorded a pain tolerance that began at 5/10 when he awoke, building to an excruciating pain throughout the morning. He was at 7/10, having taken a train to his appointment with Dr Gronow:
“…The pain generally is across the whole buttock and will radiate up into the upper lumbar spine region but not into the buttocks. …. He does not complain of any leg pain and now walks without a walking stick. He recently had a nerve block into his spine which has helped. He reports that he can sit with less pain and can walk longer but he has difficulty walking up hills. He states he has difficulty in bending over and can only squat to pick up.”

83.In discussing Mr Beatty’s treatment regime, Dr Gronow noted that he was not taking any medication at that time. Dr Gronow said:
“… He reports he used medical cannabis for two months earlier this year which he reported helped his sleep, decreased to some degree his pain and allowed him to walk further…”

84.Dr Gronow noted the proposal for a trial of medicinal cannabis. He also noted that there was a suggestion of further lumbar spine surgery at L4/5. In answer to a question from the insurer as to whether medical cannabis therapy was appropriate, Dr Gronow said:
“Mr Beatty reports improvement of his sleep and limited improvement of his pain and very slight possible improvement of his functional level but he remained very dysfunctional with the use of previous medical cannabis. However, the use of THC in Mr Beatty is highly problematic because of his history of addiction. In addition the Guidelines of the Faculty of Pain Medicine and the international Association for the Study of Pain (IASP) do not recommend medical cannabis for chronic pain patients see attached.”

85.Dr Gronow advised that there was “nil” actual or potential effectiveness for treatment by medical cannabis in Mr Beatty’s case. Dr Gronow accept there had been “subjective slight improvement” but said that there was no scientific basis for the use of medicinal cannabis in improving either long-term or short-term Mr Beatty’s ability to function, and its use was contraindicated because there was a risk of addiction. Medical cannabis, Dr Gronow advised, was not widely accepted for management of chronic pain, although he acknowledged that there were “a few practitioners” who supported its use.

21 April 2023
86.Dr Gronow responded in this report to further enquiry from the respondent’s solicitors. He was firstly asked to consider the report of Dr Hardy. Dr Gronow made various observations as to Dr Hardy’s opinion. He noted a discrepancy in the pain report that he was given compared to that which Dr Hardy was given. He noted that Dr Hardy was relying on a “self report” and observed that the use of medicinal cannabis did not make Mr Beatty any more independent of care. Moreover, Dr Hardy’s comment that the use of medicinal cannabis would not enable z
Mr Beatty to return to work suggested to Dr Gronow that the use of medicinal cannabis was unlikely to result in any functional improvement. He referred to an article published in the European Journal of Pain,[22] which claimed that the particular kind of medicinal cannabis being researched regarding neuropathic pain did not relieve peripheral neuropathic pain in patients that had failed at least one previous evidence-based treatment for neuropathic pain.
[22] ALD dated 4 May 2023 page 4. The article was entitled "Oral capsules of tetra-hydro-cannabidiol (THC), cannabidiol (CBD) and their combination in peripheral neuropathic pain treatment”. It was published on 23 December 2022, and concerned a Danish ten-week survey, the results of which were discussed over 15 pages by 12 contributors.
The tax invoices
87.The applicant lodged with its ALD of 11 May 2023 nine invoices lodged which showed the different products used by Mr Beatty when he self-funded his treatment.
88.The original claim was for expenses to do with cannabis oil, but, as indicated, Mr Beatty said that the oil was not beneficial and he no longer made that claim, so the first invoice of the nine was not relied on. Invoices two to six were proper prescriptions naming the doctor, the pharmacy, the quantity and the cost of the product. They were dated 25 “0” 2022,
12 August 2022, 1 September 2022, 8 September 2022 and 29 September 2022 respectively. Invoices seven to nine were simply tax invoices issued by the distributor of the cannabis directly to Mr Beatty. They were dated 19 April 2023, 26 April 2023 and 3 May 2023.
SUBMISSIONS
Mr Malouf
89.Mr Malouf said there were two issues:
(a) is medicinal cannabis a reasonable form of treatment, and
(b) what order could the Commission make.

90.Dealing with the second issue first, Mr Malouf conceded that in relation to the amended claim for past benefits, the invoices referred to prescriptions in some cases for different products than others. He noted that the dispensing of medicinal cannabis was by prescription which needed to show the dosage. He submitted that although the products had changed, the dosage had remained the same at 10g.
91.He sought a general order for the proposed treatment.
92.As to whether the proposed treatment was reasonably necessary, Mr Malouf referred to the well-known authority of Diab v NRMA Ltd as to the criteria that were relevant in assessing whether a treatment was reasonably necessary.
93.Mr Malouf submitted that the evidence made it clear that the medication helped Mr Beatty.
94.He referred to Gronow’s opinion as being “watery and equivocal”.
95.Mr Malouf said that the first two statements from Mr Beatty showed the injuries and symptoms that he had been enduring.
96.The last statement of 17 February 2023 demonstrated the effectiveness Mr Beatty’s experiences with medical cannabis, Mr Malouf said. Mr Beatty had tried medicinal cannabis in 2018 and said that he found it gave him total relief. Mr Beatty explained how he managed to obtain a self-funded trial in 2022.
97.He said the medicinal cannabis had immediate relief. He was able to engage in more activities. Mr Beatty’s sleep was improved. By 3 August 2022 his symptoms were relieved and he stopped taking Palexia.
98.Mr Malouf noted that Mr Beatty had been prescribed cannabis oil by Dr Gabriel but Mr Beatty had said that it was not as effective as Topaz Flower, which had prompted the amends made at the outset of the hearing.
99.Mr Beatty ceased taking cannabis, Mr Malouf said, and on 30 August 2022 his lower back symptoms escalated. In September 2022 under Dr Whimster he improved by using medicinal cannabis but by October 2022 he was unable to afford the treatment any more.

There was then a rapid return of symptoms, Mr Malouf said, and Mr Beatty returned to conservative treatment, including injections and exercise physiology.
In November 2022 Mr Beatty told Dr Pope that he had been drinking and taking pills with no effect. When he had been taking medicinal cannabis he no longer drank alcohol.
As far as Dr Gronow was concerned, it was clear he disapproved of the proposed treatment but Mr Malouf submitted that there was uncontested evidence as to how medicinal cannabis would help Mr Beatty.
Mr Malouf relied on the reports of Dr Standen, Dr Gabriel, Dr Whimster and Dr Hardy for that proposition.
Dr Pope’s evidence demonstrated that Mr Beatty had tried all alternatives – from surgery to injections to medication – and that they were not successful, Mr Malouf submitted. Pursuant to Diab, that was cogent evidence that there was no other effective alternative treatment,
Mr Malouf said. Dr Pope’s later report demonstrated that virtually all of Mr Beatty’s issues regarding his neck and arms had resolved, and Mr Malouf stressed that Dr Pope recommended continuing treatment by way of medicinal cannabis. Mr Malouf submitted that accordingly five doctors agreed that the use of medicinal cannabis was reasonably necessary.
Mr Malouf submitted that the opinion of Dr Pope when he directly addressed whether treatment by way of medicinal cannabis was reasonably necessary, was compelling. All alternative treatments had been exhausted and he recommended the medicinal cannabis.
Mr Malouf referred to the reports of Dr Hardy, who disagreed with the academic study
Dr Gronow had relied on. Mr Malouf said that Dr Hardy’s suggestion of a six-month trial of therapy that would enable the proper dosage to be formulated as medical opinion with this treatment was not one that can be said to be one size fits all. Dr Hardy noted that in any event the paper relied on by Dr Gronow simply said the jury was still out.
In May 2023 Dr Hardy’s report agreed with the prescription by Dr Gabriel for Mr Beatty. He said that treatment for medicinal cannabis gave important functional gains and that
Dr Gronow’s opinion was incorrect that the effects quickly dispelled.

Mr Grimes

Mr Grimes submitted that the applicant was required to demonstrate that the treatment by use of medicinal cannabis was reasonably necessary. There were some problems with that proposition, Mr Grimes suggested, in view of the fact that Mr Beatty had indeed funded his own trial, as was evidenced by the nine invoices regarding the medicinal cannabis he had been prescribed. The issue, Mr Grimes submitted, was whether Mr Beatty had derived any benefit from his use of medicinal cannabis, and the evidence demonstrated that he had not.
Mr Grimes submitted that Mr Beatty had not shown that there had been any benefit during his recent treatment, and that his experience with medicinal cannabis in 2018, although rather effusively remembered by Mr Beatty in his third statement, nonetheless was not compatible with other contemporaneous medical opinion as to its effectiveness. This was particularly so when Mr Beatty in his first statement had canvassed the 2017/ 2018 years of treatment without mentioning his treatment with medicinal cannabis.
Mr Grimes referred to the report by Dr Endrey-Walder. He noted that the comprehensive history of Mr Beatty’s symptoms showed that he was quite disabled on 11 July 2018. It followed that the medicinal cannabis he was then taking was ineffective to the point where it had not been mentioned to Dr Endrey-Walder. Mr Grimes noted that there was no reference to the medicinal cannabis by Mr Beatty to Dr Endrey-Walder, let alone any claim that he was obtaining relief from its use.
Mr Grimes referred to the detail of Mr Beatty’s first two statements regarding treatment. He said that the earliest statement was dated July 2021 - well after Mr Beatty was prescribed medicinal cannabis in 2018. Mr Grimes argued that in view of the extensive treatment detail, which made no mention of medicinal cannabis, it could be quite comfortably inferred that the 2018 treatment by medicinal cannabis had not been effective. Mr Grimes also argued that a Jones v Dunkel inference was available. No explanation had been given for the absence of any evidence about the 2018 treatment, he said, so it did not assist the applicant’s case.
Mr Grimes submitted that the report of Dr Nazha of 3 February 2022 was not supportive. It was also inconsistent with Mr Beatty’s first statement, he said. In the light of the evidence,
Dr Nazha’s reference to treatment by medicinal cannabis being “worthwhile” was not borne out, he argued.
Dr Standen’s opinion, Mr Grimes argued, would be of no assistance to the Commission. The proposed treatment was to be monitored, he said, but there had been no evidence that any monitoring took place in his recent self-paid treatment.
Later in his submissions Mr Grimes made the same point regarding the report of Dr Gabriel, who noted that Mr Beatty had been “onboarded” on 23 June 2022. Mr Grimes submitted that, although monitoring was said to be an integral part of the prescription of medicinal cannabis, there was no evidence that such monitoring had occurred.
Similarly, Mr Grimes referred to Dr Hardy’s report of 27 February 2023, which recommended a six-month trial, with monthly reviews.
There was no evidence of any monitoring in the past or present, Mr Grimes submitted.
Mr Grimes referred to the report of Dr Pope dated 30 August 2022, which related to
Mr Beatty’s treatment regarding the cervical spine. Mr Beatty was still concerned about his back and had shown considerable improvement, Mr Grimes said, which was reflected in the radiography. Mr Beatty’s complaints regarding his lower back pain were not consistent with his account in his third statement of immediate relief from his neck and low back pain. Whilst telling Dr Pope about his use of CBD, Mr Grimes said, Mr Beatty nonetheless still complained of pain.
Similarly, Mr Grimes contended, Dr Khan’s history of the complaints of variable degrees of pain described to him by Mr Beatty on 16 August 2022 showed that the use of medicinal cannabis was not effective in the management of pain caused of degenerative aetiology.
Mr Grimes referred to the radiology organised by Dr Pope on 7 September 2022. He submitted that the pathology demonstrated was unremarkable on both X-ray and MRI investigation.
Mr Grimes submitted that the opinion of Dr Gronow should be preferred. In his report of
30 November 2022 Dr Gronow said there was “nil” actual or potential effectiveness in the use of medicinal cannabis for Mr Beatty. Dr Gronow said that Mr Beatty’s past history of addiction made his case problematic, and that medicinal cannabis was not recommended to treat chronic pain.
Moreover, Mr Grimes submitted that Dr Gronow should be accepted when he said that treatment by medicinal cannabis was not widely accepted when treating chronic pain.
Mr Grimes concluded by submitting that Mr Beatty could not be accepted when he stated that the use of medicinal cannabis had improved his condition. Whilst there may have been short term relief at best, there were too many inconsistencies in his evidence to accept his claim that it was reasonably necessary.

Mr Malouf in reply

Mr Malouf submitted that the reported beneficial effect of medicinal cannabis on Mr Beatty’s pain “can’t just be dismissed”. It was described in some detail by Mr Beatty himself, and in the histories given to the doctors. Mr Malouf submitted that Mr Beatty’s evidence was consistent, and he had not been shown to be mistaken or untrue.
The submission that there had been no monitoring of Mr Beatty’s consumption of medicinal cannabis was disproved by the nine invoices, of which six had been the subject of a prescription, Mr Malouf said. It followed that Mr Beatty’s consumption was being monitored.

DISCUSSION

Diab v NRMA Ltd[23] is commonly recognised as the leading authority regarding the definition of the term “reasonably necessary.” Section 60(5) of the 1987 Act provides relevantly:
“(5) 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. …”
[23] [2014] NSWWCCPD 72 per Roche DP.
In Diab, DP Roche from [76] considered the relevant authorities. From [88] he said:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89.   With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
The respondent’s argument began with the inherent inconsistencies in Mr Beatty’s own statements. That Mr Beatty recognised that such inconsistencies were evident from his disclaimer in his third statement at [5] which read, as indicated,
“To the extent of any inconsistencies between my previous statement [sic] and this statement, the veracity of the claims made in this statement is preferred.”
The first two statements, (19 July 2021 and 17 January 2022) were very detailed in their description of the treatment given for two separate spinal pathologies. 19 July 2021 appeared to be concerned with a claim for lump sum payments for the back injury, and
17 January 2022 with the consequent condition to the cervical spine. These two statements had clearly been taken with litigation in mind.
To summarise Mr Grimes’ submissions, he argued that at the least the proposed treatment had proved ineffectual. Mr Beatty had been prescribed CBD by the Cannabis Clinic in 2018 and his failure to mention it raised an inference that he had not found it effective. Indeed
Mr Grimes submitted that I could draw an inference pursuant to the authority of Jones v Dunkel that because no evidence about the 2018 prescription had been offered, such evidence would not have assisted the applicant’s case.
In any event, Mr Grimes argued that the failure by Mr Beatty to mention this treatment in the detailed and referenced first two statements raised a question regarding Mr Beatty’s reliability and cast doubt on the evidentiary weight of his third statement of 17 February 2023.
There is some merit to Mr Grime’s argument. Mr Beatty was clearly aware that his earlier statements might be difficult to explain when he raised for the first time the beneficial results he had experienced when prescribed medicinal cannabis. He did not offer any reason why the Commission should ignore any inconsistencies raised by the earlier statements, other than that “the veracity of the claims made in this statement is preferred”. That was without more, an admission of the unreliability of both his earlier statements and of course brought into question the reliability of his third statement.
However it is relevant to note that the first two statements were clearly prepared with the assistance of Mr Beatty’s legal advisors, and it is apparent they were drafted by a skilled hand. The facts given were accurately referenced to the evidence and the statements provided a clear and detailed chronology of the treatment history of each spinal condition.
Prior to the surgery for his lumbar spine Mr Beatty underwent pain management with medication, physiotherapy, hydrotherapy, exercise physiology and cortisone injections. Although he did speak of developing a limp, Dr Susanto noted in 2020 that Mr Beatty had foot drop in 2018, which would explain the reason for the limp. The radiography described by
Dr Endrey-Walder in July 2018. CT and MRI scans revealed an L5-S1 focal disc protrusion with impingement of the left L5-S1 nerve root.
Similarly, Mr Beatty’s second statement described the alternative treatments he undertook such as medication physiotherapy and various nerve blocks and injections, to treat his cervical condition.
I do not draw the inference pressed by the respondent that because he did not mention it,
Mr Beatty’s use of medicinal cannabis was therefore ineffective. It may equally have been overlooked by the drafter of his statements, and other contemporaneous evidence confirms that Mr Beatty did in fact advise his medical practitioners about its benefits prior to the Certificate of Determination being issued on 23 March 2022.
The clinical notes from Dr Susanto of 26 November 2020 refer to Mr Beatty’s smoking marijuana. Dr Nazha on 3 February 2022 referred to the 2018 prescription of CBD by Cannabis Australia, which gave “significant relief”.
The clinical notes also recorded on 14 February 2022 that Mr Beatty was hoping to restart medical marijuana as it had been “helpful in the past”. On 16 March 2022 Dr Standen noted the use by Mr Beatty of both medicinal and recreational marijuana to facilitate pain management.
These references give some measure of support to Mr Beatty’s statement of 17 February 2023 and demonstrate a conviction by him that treatment by medicinal marijuana was of significant benefit to him.
I therefore reject the respondent’s argument that an inference is available that the proposed treatment is ineffectual. Whilst Mr Beatty’s failure to mention his use of medicinal CBD in 2018 was an omission that was regrettable in his first two statements, in the context of the focus of the first statement which traversed the period when Mr Beatty was taking the CBD, I do not regard it as significant. There is no evidence apart from Mr Beatty’s account in both his statement and his histories to the medical practitioners about the duration, dosage or effectiveness of that 2018 treatment. That evidence is scant, but in view of the positive response Mr Beatty has experienced in his subsequent use of the treatment, it would be speculative to find that its use in 2018 had not been effective.
In that regard it is significant that Mr Beatty then arranged for medicinal cannabis to be prescribed for a short time, using his own funds. He described the benefits which he said were immediate and substantial. His neck and lower back pain eased, and he was able to manage more activities. He could walk for 1km whereas his limit had been 100m, and his sleep was improved. His overall mood improved also. This treatment lasted from
23 June 2022 to sometime around 12 October 2022.
It is also significant that, whilst Mr Beatty has clearly had his troubles in his life, he had remained in constant employment until his injury in 2017. He also had been to a drug and alcohol rehabilitation centre where he had cured himself of his alcoholism about five years before. He expressed in the clinical notes concern that he might start drinking again, and was recorded as being suicidal on 20 October 2022. Regrettably his concerns about drinking have proven correct, and when he saw Dr Pope on 16 November 2022, he was then drinking two cartons of beer per week. Dr Pope noted Mr Beatty’s assertion, which Mr Beatty also expressed in his statement, that he was not drinking any alcohol when he had been using his self-funded medicinal cannabis earlier in the year.

It is also relevant that the respondent could only seek to draw inferences from the omission of the 2018 treatment by CBD. There was no suggestion that Mr Beatty was deliberately lying or mistaken in his statements. He recognised that his failure to mention the effect of medicinal cannabis would be questioned, but I accept that his evidence may be given prima facie credit in view of the contemporaneous support his assertions received.
I disagree with Mr Grimes’ submissions that the application should be dismissed because the applicant had not shown that his use of medicinal cannabis had been monitored. Six of the nine tax invoices lodged with the ALD of 11 May 2023, as indicated, showed that they had been prescribed by Dr Gabriel, and it can be assumed that they were issued as part of a monitoring process. The remaining three tax invoices however were dated April and May of 2023 – all subsequent to Mr Beatty’s last statement of 17 February 2023. No explanation was given as to why they were simply tax invoices which were addressed to Mr Beatty’s home address.
I listened with interest to Mr Grimes’ reference to the reports of Dr Pope and Dr Khan as he submitted that regardless of the effect of medicinal cannabis, Mr Beatty was complaining about pain to both Dr Pope and Dr Khan. I would observe that the test of a medical treatment is not whether it cures the injured person, but whether it is effective to alleviate the effects of the injury. In this case the evidence is compelling.
Dr Pope indeed recommended the use of medicinal cannabis, as has been seen.
Mr Grimes relied also on the reports of Dr Gronow. Dr Gronow reported that Mr Beatty had improvement in his sleep, “limited” improvement of his pain, and “slightly possible” improvement of his functional level. I take from that a concession that Dr Gronow accepted that the use of medicinal cannabis did promote an improvement in a person’s condition.
Dr Gronow however advised that it was inappropriate in Mr Beatty’s case. This was because of Mr Beatty’s “history of addiction”. The history taken by Dr Gronow was that Mr Beatty had been an alcoholic. There was no other substance mentioned and one must assume that
Dr Gronow was referring to that problem. It is somewhat ironic then that Mr Beatty, who states that the use of medicinal cannabis takes away his desire to drink alcohol, should be prevented from access to medicinal cannabis, on the basis of his history of alcoholism. The evidence has shown that Mr Beatty, after over five years abstinence, began drinking again after he could no longer afford to fund his treatment.
Dr Gronow also advised against the proposed treatment as Mr Beatty had remained “very dysfunctional” with the use of previous medical cannabis. There was no history taken by
Dr Gronow to that effect, and there is nothing in the evidence that suggests such an outcome.
In his second report Dr Gronow referred to Dr Hardy’s view that the use of medicinal cannabis would alleviate Mr Beatty’s alcohol use disorder. Dr Gronow said that even were that so, the alcohol use disorder was not work-related, a remark I found to be somewhat disingenuous. The circumstances of Mr Beatty’s history with the subject injury would well raise a causal connection between the effects of both the lumbar and cervical conditions and his resumption of drinking alcohol after over five years’ abstinence. In any event I am satisfied that the use of medicinal cannabis also alleviates his condition, enabling him to function better and thus improving his disposition.
Dr Gronow referred to the academic paper from Denmark indicated above. I do not find an academic paper about a 10-week survey of 105 Danish people suffering from peripheral neuropathic pain to be of much assistance. It has not been suggested that Mr Beatty’s condition is as precise, and I note Dr Hardy’s comment that the doses used in the survey were so unrealistic that the analysis by the authors was of little practical value in any event.
I am thus satisfied that the prescription of medicinal cannabis is reasonably necessary. The treatment is appropriate, as I accept that Mr Beatty’s self-funded use of medicinal cannabis was effective to alleviate the effects of his condition, making him more functional, and reducing his pain.
Mr Beatty has tried the available alternative treatment, as indicated in his statements. That alternative treatment has not been effective.
The cost of the treatment is not prohibitive, and its actual effectiveness had been demonstrated by Mr Beatty in the self-funded prescriptions between June and October 2022. The treatment has been accepted by those medical experts in the case who were asked about it, except for Dr Gronow, with whose opinions I disagree.
There was some discussion about the actual order I should make. I decline to make only a general order, as I am not aware of how it is that Mr Beatty was having the cannabis shipped directly to his home in April and May 2023. I think it is appropriate to order a six-month trial in accordance with the opinion of Dr Hardy of 27 March 2023 and Dr Standen’s earlier opinion of 16 March 2022.
Accordingly,
(a)     I find that the prescription of medicinal cannabis is reasonably necessary;
(b)     the respondent will pay for a six-month trial as recommended by Dr Hardy in order to titrate doses and formulation strength to determine treatment and effectiveness;
(c)     thereafter the respondent will pay the costs of the provision of medicinal cannabis upon production of accounts, receipts and HIC documentation, and
(d)     the respondent will pay the sum of $1,585 regarding past expenses.

[2023] NSWPIC 349

14 July 2023