Bladen v Mad Mile Empire Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bladen v Mad Mile Empire Pty Ltd [2024] NSWPIC 4
APPLICANT:	Harley Lawrence Bladen
RESPONDENT:	Mad Mile Empire Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	8 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60 for incurred medicinal cannabis treatment expenses; accepted injury to the left knee requiring treatment with surgery; whether there is a proper foundation for the acceptance of opinions given by applicant’s expert and prescribing doctor; cost of treatment; actual effectiveness of treatment uncertain; Held – applicant has failed to discharge his onus; award in favour of the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Mr Harley Bladen (the applicant), who is currently 28 years old, was employed as a sales representative for Mad Mile Empire Pty Ltd (the respondent).
On 20 August 2022, the applicant injured his left knee while passing a football with his colleagues at a work function.
Liability for a left knee dislocation and multi-ligament injury was accepted by the respondent’s insurer.
The insurer has, however, disputed invoices for medicinal cannabis treatment claimed by the applicant, in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 23 November 2022, 8 February 2023 and, following internal review, on 10 August 2023.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 7 September 2023.
The applicant seeks compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of $19,860 of medicinal cannabis treatment expenses incurred between 11 October 2022 and 10 August 2023.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing on
20 November 2023. The applicant was represented by Mr Bill Loukas of counsel, instructed by Mr Sayyid Sadat. The respondent was represented by Mr Paul Stockley of counsel, instructed by Mr Stephen Lee.
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.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the treatment expenses claimed were reasonably necessary as a result of the injury on 20 August 2022 pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 20 September 2023;
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 2 November 2023;
(e)    documents attached to an Application to Admit Late Documents lodged by the respondent on 13 November 2023, and
(f)    documents attached to an Application to Admit Late Documents lodged by the applicant on 20 November 2023.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on
7 September 2023.
In his statement, the applicant denied any problems with his left knee prior to the injury on
20 August 2022.
The applicant denied any previous trauma or psychiatric symptoms. The applicant did not smoke cigarettes and drank alcohol rarely and sparingly. The applicant had tried a peptide as a youth but had not used any performance enhancing drugs in the last 10 years.
Following the injury, the applicant said he underwent X-rays at Cessnock Hospital which confirmed a fractured patella in his left knee. The applicant later underwent an MRI at
St George Hospital, which revealed a ruptured posterior cruciate ligament (PCL) and ruptured lateral collateral ligament (LCL), a lateral meniscal tear, osteochondral lesion of the lateral compartment, fractured left fibula and a common peroneal nerve injury.
The applicant underwent a left knee reconstruction surgery on 1 September 2022 performed by Professor Sam Adie. Post surgery, the applicant was treated with hydrotherapy, physiotherapy, orthotics and knee braces.
The applicant’s recovery was slow and a further surgery was recommended. The applicant underwent a manipulation under anaesthesia to increase his range of motion in July 2023. The applicant said he had been advised that he would need a possible knee replacement in about 10 to 15 years.
The applicant described using opioids to manage his symptoms including tapentadol, pregabalin, celecoxib, endone and palexia. The applicant had trialled lyrica and continued to take paracetamol and nurofen. The applicant attended a multidisciplinary pain clinic at
St George Hospital for two to three weeks to assist with his ongoing pain and discomfort.
After being discharged from hospital, the applicant consulted his local general practitioner,
Dr Richard Yip, who referred him to a cannabis clinic called MiDispensary. The applicant was given a trial of medicinal cannabis due to the severe ongoing pain he was experiencing.
The applicant stated:
“I have used a number of different pain relieving medications since the date of my injury, none of them have assisted with pain relief to the extent that medicinal cannabis has. I have previously trialled Tramadol and Tapentadol, which was not beneficial. I have also used other opioids, including oxycodone, and palexia both immediate and slow release, without lasting benefit.
I have used a combination analgesic, including paracetamol/codeine, and I have also used perioperative ketamine.
I have a trialled of an anti-neuropathic medicine such as pregabalin (Lyrica), as well as paracetamol and an NSAID, ibuprofen.
I have not tried an antidepressant for my chronic pain. I don’t really want to and I am also advised that benefits of these would be doubtful.
In each case these other drugs have not effectively dealt with my chronic pain and have also had unacceptable side-effects.
Out of all of the pain relievers I have trialled, I have found medicinal cannabis to be the most effective in relieving my pain and discomfort, with the least harmful side-effects. Hence, I prefer medicinal cannabis as the most appropriate and reasonable pain relief available to me.
I also noted a significant weight gain of up to 20 kg in about seven day from the opioids that I was taking, this added extra weight/pressure to my left knee, stopping me from regular physiotherapy sessions.”
The applicant said he had commenced work 20 hours per week at a new workplace. The applicant resigned from his employment with the respondent as he felt unnecessary pressure from his manager due to his injuries and disabilities.
The applicant described his ongoing functional limitations and said he was always experiencing 10/10 pain but with medicinal cannabis his pain had reduced to 3 to 4/10. Prior to using medicinal cannabis, the applicant woke up hourly and had very little restful sleep. While taking medicinal cannabis, the applicant was able to get six hours of restful sleep.

Treating evidence

A discharge referral note from St George Hospital, dated 6 September 2022, noted that the applicant presented in a manner consistent with a knee dislocation and ligamentous injury. The applicant underwent a left knee ligamentous repair on 1 September 2022. On discharge, the applicant was advised to continue an analgesic regime for pain relief consisting of paracetamol, ibuprofen, tapentadol (slow release and immediate release) and clonidine. The applicant’s general practitioner was to monitor the regime and titrate analgesia as appropriate. The applicant was advised to cease the clonidine and slow release tapentadol within the week. It was noted that the applicant had required ketamine infusion and oxycodone on admission.
Clinical records from the applicant’s general practitioner, Dr Yip, are in evidence. These show that the applicant was prescribed palexia on 9 September 2022. On 13 September 2022, the applicant reported that his pain was improving during the day but was severe at night.
On 23 September 2023, the applicant reported that he was still in pain. Dr Yip noted that physiotherapy would commence the following week. On 29 September 2022, Dr Yip noted:
“improving pain mainly at nite disturbs sleep
continue panad/nurofen
palexia PRN only”
On 25 October 2022, the applicant reported to Dr Yip that his pain was easing. On
7 November 2022, Dr Yip noted:
“increase pain but better than first few weeks
started cannibis [cannatrek 1ml bd with approval of Dr Adie follow up end Nov
continue physio
encouraged to continue panadol and nurofen
has been using palexia only sparingly/ no further scpts required”
Dr Yip prepared a report for the insurer on 11 November 2022 in which he noted that the applicant was taking palexia as required, paracetamol and nurofen. The applicant was taking Cannatrek as directed by MiDispensary. Dr Yip noted that the Cannatrek had been approved by the applicant’s orthopaedic specialist, Dr Adie as helpful for pain relief on a short-term basis.
On 23 December 2022, Dr Yip noted that pain was still a problem especially with physiotherapy. The applicant was again prescribed palexia.
Following the manipulation under anaesthetic in January 2023, Dr Yip noted that the applicant had an improving range of motion and his pain was better. The applicant was noted to have returned to work on light duties in around March 2023.
The applicant has provided clinical notes from MiDispensary and reports from his prescribing doctor, Dr Loretto Maxwell.
The clinical notes from an initial telehealth consultation with MiDispensary on
11 October 2022, recorded that the applicant presented with treatment resistant chronic pain and insomnia which had failed to respond adequately to other medications. The applicant had experienced intolerable side effects from medications prescribed previously. The applicant’s primary goals from medicinal cannabis products were insomnia and pain relief.
At a follow-up consult on 1 November 2022 the applicant reported receiving therapeutic benefit from his current prescription but needing stronger daytime pain relief.
At a review with a registered nurse on 16 January 2023, the applicant reported that one of the prescriptions was not working well and was making him more anxious. The applicant asked to change his prescriptions.
At a consultation on 26 January 2023, the applicant again requested a change in his medicinal cannabis regime. The notes recorded,
“Finding minimal pain relief from solace as well as increased anxiety
Pain ongoing from knee surgery 3/12 ago.
Continues to follow up with PT, GP and orthopaedic surgeon.”
The applicant was noted to be having a good therapeutic response to a “Topaz” flower prescription but minimal effect from a “Ruby” oil. The applicant’s sleep was noted to be poor and his mood neutral.
At a consultation on 13 February 2023, it was noted:
“Current Rx - Topaz T25, using 2-5g/day. If has access to other flower eg. jealousy would only use 1g of each and have good therapeutic effects. If Topaz alone requiring significant amounts for pain relief. Finding that he will get 'high' without the analgesic effect - Jealousy and Gelato out of stock. Has been able to get some jealousy and then would use up to 2g/day in combination with Topaz - Medcan ultra sour 25% - does not find this to have much therapeutic effect in terms of pain relief - T50 Ruby oil, using 1-2ml at night, finding this effective to sleep through the night however feels groggy in the morning
Harley has also sourced his own CBD oil online - I have recommended that he cease this and use a scripted oil instead
In total Harley is using significant amounts of flower per day, up to 5g He is also finding that with higher amounts of flower used he is developing some anxiety and palpitaitons without any therapeutic effects. I have reiterated that the maximum amount of flower should not exceed 3g/day and if requiring higher amounts then a change in regimen is required.”
At a review on 3 March 2023, the applicant was noted to be sleeping well and his mood was good.
At a consultation on 23 March 2023, the applicant was noted to complain that his prescriptions were out of stock most of the time.
On 19 April 2023, it was noted,
“Back at work and wants to change his vaping regime
Says the flowers all stink
He is still in a lot of pain during the day”
At a review on 29 June 2023, the applicant reported that the “Night” prescription was;
“… almost as good as Palexia but without the side effects, gives me the numbing which is good’. Denies "getting stoned", increased anxiety, agitation, paranoia, unintentional weight change, or memory loss.”
In a report dated 7 September 2023, Dr Maxwell stated that over the past 11 months, the applicant had seen many doctors and his medications had been altered to treat his symptoms. The applicant’s current regime was working.
The applicant said the medications prescribed to him following the injury had worked but gave side-effects of drowsiness, nausea and headaches. The applicant wanted to trial medicinal cannabis to see if it helped. The applicant was suffering with chronic left knee pain with instability which was also causing anxiety. The applicant’s medicinal cannabis treatment was controlling his pain, anxiety and sleep. The applicant’s treatment did not interfere with his ability to drive or operate machinery in accordance with TGA guidelines for medicinal cannabis. Dr Maxwell suggested the medicinal cannabis treatment was cheaper than conventional medications and did not cause any side-effects.
In a further report, dated 20 November 2023, Dr Maxwell stated,
“He was tried on medicinal cannabis in October 2022 and found that his symptoms were controlled without the previous side effects.
He has consulted several doctors at MI Dispensary due to some medications being out of stock and needs these to be changed.
He currently takes the following:
Medication   Dosage
Cannatrek Topaz Flower (25% THC) 10grams, 0.5 gm            Daily, up to max of 1.5 gm/daily
Cannatrek Urban Leaf mCart   Night time use.
These medications have been working for him and I strongly disagree with the specialist's opinion regarding medicinal cannabis.
I believe he should be allowed medicinal cannabis for his ongoing chronic pain as long as his dosage remains constant and does not increase due to tolerance.”

Dr Hardy

The applicant relies on a medicolegal report prepared by Dr Mark Hardy, dated
23 June 2023. Dr Hardy described his areas of specialty as addiction medicine, toxicology & cannabis, chronic pain, nervous system and mental health co-morbidity.
Dr Hardy took a history of the injury and subsequent treatment that was consistent with the applicant’s statement evidence.
Regarding the applicant’s past cannabis use, Dr Hardy stated:
“He first tried cannabis at age 18. It was rare, opportunistic use at the time. He was reintroduced to cannabis in the medicinal format in around December 2022. He was prescribed three treatments by Dr Carroll. The first was called Cannatrek Ruby Oil which is a THC/CBD combination of 12 mg/ml each. Additionally, he was given Cannatrek T25 Topaz Flower which is an inhalable and vaporizable THC 25% cannabis flower used for breakthrough pain. The third cannabis treatment was Beacon Medical Girl Scout cookies. This is a 20% THC Flower which is inhalable or vaporizable. It is also used for breakthrough pain. In terms of cannabis treatments, a balance between long-acting oil and flower is consistent with what most cannabis prescribers would use in the current Australian context. Whilst this may not be obvious to practitioners who do not prescribe the product, it is akin to prescribing a long acting, low impact oral preparation as well as providing breakthrough pain relief with an inhalable flower.”
At the time of his report, Dr Hardy expressed the view that the applicant would benefit from the manipulation under anaesthesia procedure which had been proposed by Dr Adie.
Dr Hardy considered the applicant would benefit from decreasing his reliance on a knee brace and improving physiotherapy. Ongoing psychology and strengthening and range of motion exercises were also advised. Dr Hardy expressed the view,
“Medicinal cannabis may have a role in ongoing pain management. Its use in his case has demonstrated a 60% to 70% decrease in pain on visual analogue scale, as well as improvements in sleep and pain coping. I would support ongoing use of medicinal cannabis in this clinical setting. Given the lack of alternative treatments to relieve his pain, as well as improve his functional capacity, I see an ongoing role for medicinal cannabis to assist in his rehabilitation and return to work plan.”
Dr Hardy considered the applicant’s medicinal cannabis treatment to date had been reasonably necessary.
Dr Hardy gave the opinion that most available and potentially helpful alternative treatments had been tried or earnestly considered, without success or unacceptable side-effects. Medicinal cannabis was within the range of helpful treatments in the applicant’s case. Whilst the treatment was not absolutely necessary it “may be extremely helpful”. Dr Hardy referred to articles describing evidence of success with medicinal cannabis treatment for chronic non-cancer pain. Dr Hardy considered that a “trial” of medicinal cannabis was not an unreasonable next step in treatment.
Dr Hardy estimated the cost of treatment at approximately $600 per month and suggested that other pain medicine intervention and surgery was considerably more expensive than medicinal cannabis and offered no guarantee of long-term success. The costs of anti-neuropathic medicines, anti-inflammatory drugs and strong opioid analgesics was comparable. Such medications had their own side-effects including cognitive impairment, weight gain, addiction/depression and suicide.
Dr Hardy said that although various bodies had published opposition statements addressing their current approach to the use of medicinal cannabis, many pain specialists, physicians, psychiatrists and general practitioners prescribed it to patients with chronic pain.
Responding to the respondent’s Independent Medical Examiners report, Dr Hardy, commented:
“Mr Bladen has had a trial of non-cannabis medicines without benefit. His suggestion to try these again, under the supervision of a pain specialist would simply be a re-trial of previously unsuccessful medications, which I would judge to be a waste of the client’s and the insurer’s time and money.
I disagree with the assertion that medicinal cannabis would be contra-indicated for work. He has not provided any evidence of a functional deficit to support this statement. The patient is currently using medicinal cannabis, while performing suitable duties. He has reported improvements in pain score on VAS, pain coping, mood and sleep. There has been no condition placed upon his employment that he not take medicinal cannabis, nor any other legally prescribed medical intervention.
…
Given he has not provided any additional treatment suggestions, nor provided any potential functional improvements from re-trialling previous failed treatments, I disagree with the findings and opinions expressed in his supplementary report.”

Dr Gronow

The respondent relies on medicolegal reports prepared by pain management specialist,
Dr David Gronow, dated 1 February 2023, 13 February 2023, 30 October 2023 and
9 November 2023.
In his first report, Dr Gronow took a history of the injury and the surgery performed by
Dr Adie on 1 September 2022. The applicant was originally treated with palexia slow-release and immediate release but had adverse reactions to these, particularly constipation. The applicant did not find panadol and nurofen helpful. The applicant had been having regular physiotherapy and noted a gradual improvement in his range of motion which had also resulted in a reduction of pain. The applicant’s pain ranged between 3-5/10.
Dr Gronow said the use of medicinal cannabis was not clinically indicated:
“Mr Bladen has been transferred to medical cannabis as he had difficulty tolerating Palexia as an analgesic. Alternative analgesics have not been trialled particularly those appropriate for his symptoms. In addition his pain and functional capabilities are improving. There are no clinical Indications for the use of medicinal cannabis and are contra-indicated for him to return to work.”
Asked whether medicinal cannabis treatment was reasonably necessary, Dr Gronow responded:
“Medical cannabis is not reasonably necessary. It Is not recommended for management of pain by the Faculty of Pain Medicine ANZCA or the International Association for the Study of Pain (IASP) and indeed medical cannabis is contrary indicated for him to be able to return to work. There are alternative analgesics and anti-neuropathic pain medications that may assist Mr Bladen in his recovery. If this is required, then a referral to a pain medicine consultant would be appropriate. These could either systemically and/or topically. His current condition is related to the workplace injury.”
In his second report, Dr Gronow was asked what alternative analgesics/anti-neuropathic pain medications he would recommend for ongoing pain management. Dr Gronow responded:
“The decision for the most appropriate medication to be prescribed should made by the treating specialist in conjunction with the patient. I have recommended that this should be a pain medicine specialist who would be best in the position to prescribe the medication, the dose, titration schedule and monitor efficacy and any side effects.”
In his report of 30 October 2023, Dr Gronow was asked to comment upon the opinion of
Dr Hardy. Dr Gronow reiterated his view that scientific evidence did not support the use of medicinal cannabis for the management of chronic pain. Dr Gronow commented:
“Dr Hardy states on page 12 that the treatment will cost approximately $600 per month. However, from the analysis of the prescription data supplied, the cost of prescriptions for medicinal cannabis for Mr Bladen has been June 23 $2,295, July 23 $2,445 and from 1 to 10 August $1,350. This makes this treatment extremely expensive compared to other medications.
Dr Hardy further states that the medicinal cannabis is not providing any side effects. The note from MI Dispensary notes in the entry on 13/2/2023 that he was using significant amounts of flower per day up to 5mg. He stated that he is developing anxiety and palpitations without any therapeutic effects and he states that the use of T50 Ruby oil is effective with sleep though he feels groggy in the morning. It has been documented that regular THC for insomnia induces to tolerance and increasing doses leading to dependence and addiction. Higher doses also cause insomnia.
Entry on 26 January also states that he was finding minimal pain relief from Solace with increased anxiety. The entry from 29/6/2023 reports that the medicinal cannabis was giving him a numbing effect which felt good but no improvement in pain or function.”
Dr Gronow noted that the clinical records of MiDispensary recorded that the applicant was getting a large number of prescription repeats and obtaining additional supplies of other forms of medicinal cannabis, indicating a degree of dependency and tolerance without any increase in function. There was little assessment of the benefits of the medicinal cannabis in the notes. Dr Gronow commented:
“…the amount of medicinal cannabis prescribed appears to be excessive. It doesn't appear to be providing any recorded objective outcome of benefit other than Mr Bladen feels “better” on the medication. Whilst over the time he has been on it there have been changes in his medicinal cannabis, there does not seem to be adequate control of his use.”
In his final report, Dr Gronow quoted from several sources identifying risks associated with the use of medicinal cannabis.
The applicant referred to his statement evidence and noted that the occurrence of a serious injury to his knee was not contested. The applicant had described the subsequent treatment of the injury through surgery, hydrotherapy, physiotherapy, orthotics and the use of knee braces. The applicant listed the medications he had trialled and noted he had been referred to a pain clinic.
The applicant was referred by his general practitioner to MiDispensary, who prescribed medicinal cannabis. The applicant had trialled conventional treatments and preferred the natural remedy.
The applicant submitted that he ought to have a choice as to how best to treat his personal pain. The applicant had trialled hard drugs and did not find them to be effective and said the side-effects were unacceptable. The applicant had described significant weight gain with his previous medications. The applicant had earnestly attempted various remedies and found the medicinal cannabis to be the remedy most suitable.
The applicant referred to the report from Dr Hardy, noting his expertise. Dr Hardy’s report addressed the criteria the Commission had to consider in determining whether the treatment was reasonably necessary.
Dr Hardy referred to what appeared to be a philosophical objection or suspicion amongst the medical profession towards the use of medicinal cannabis. Dr Hardy considered that the applicant’s use of the treatment had demonstrated a decrease in his pain and increase in his sleep and ability to cope with his symptoms. The applicant had returned to work and this result spoke for itself. The treatment had been reasonably necessary and effective.
Alternative treatments had been trialled and were considered to be ineffective. The applicant submitted that the medicinal cannabis need only be within the range of appropriate treatments. The applicant’s use of medicinal cannabis was in line with TGA guidelines.
Dr Hardy’s estimate of the cost of such treatment was only approximate. Although the applicant had obtained prescriptions in excess of that, it did not follow that any excess was unreasonable.
Dr Hardy addressed Dr Gronow’s reports and disagreed with his opinions. Dr Hardy noted that Dr Gronow’s suggestion that the applicant trial conventional pain relief again would be a waste of money. Dr Hardy was a chronic pain specialist and noted that not one size fits all. The treatment had been effective in the applicant’s case.
The applicant submitted that the medicinal cannabis was only ever intended as a short-term solution. The treatment had done its work as a short-term fix and had now been ceased.
The applicant noted that Dr Gronow had suggested that the applicant’s treatment should be determined by a pain management specialist. No alternative treatment was specifically proposed other than to say it should be determined by the applicant and his specialist. The treatment in question had been approved by the applicant’s orthopaedic specialist, Dr Adie.
The applicant referred to the reports of Dr Maxwell and noted that the applicant had trialled other medications without success. The treatment in question was cheaper than conventional medications.
The applicant noted that the clinical notes from MiDispensary showed that the applicant had expressed a desire to wean off the treatment in order to return to work. This was said to be inconsistent with someone trying to abuse his medical regime.
Although the clinical notes referred to some side-effects and changes in his prescription, it was clear that the applicant was still trialling various prescriptions before settling on a product that worked.

Respondent’s submissions

The respondent submitted that the path that led to the prescription of medicinal cannabis was murky. The applicant said that Dr Yip had referred him to MiDispensary but that was not apparent from Dr Yip’s clinical notes or reports. Dr Yip’s notes referred to the applicant using palexia and noted an improvement in his pain. Dr Yip’s notes were not consistent with a failure of a trial of palexia. The applicant was noted to be continuing with physiotherapy and using palexia only sparingly.
Dr Adie’s reports showed slow but sure progress. There was no reference in Dr Adie’s reports to cannabis treatment.
Neither Dr Yip nor Dr Adie described referring the applicant for medicinal cannabis treatment or approving it.
The respondent said the records from MiDispensary gave no indication of any physical examination of the applicant. The respondent submitted that treatment ought to be founded on established protocols of a history, examination and assessment.
The respondent submitted that it was difficult to see how the other treatments prescribed could be considered to have failed. There was evidence of improvements with treatment. The foundational basis for a trial of medicinal cannabis was absent.
The respondent submitted that Dr Hardy was a strident advocate for the use of medical cannabis but had recommended it without a proper foundation.
The respondent also noted that there was no evidence from the applicant regarding his experience of the medicinal cannabis treatment and the apparent cessation of it.
The treatment expenses paid by the insurer had totalled approximately $20,000. The medicinal cannabis treatment claimed was an additional $18,000. The cost of the treatment was excessive and difficult to justify.
The respondent submitted that the applicant had provided insufficient detail as to the side effects he experienced with the treatment prescribed by his other doctors.
The treating material from the applicant’s other doctors did not indicate that the applicant was on the cocktail of painkillers suggested by the applicant’s evidence. Nowhere in Dr Yip’s notes was there an indication that conventional treatment had been unsuccessful. None of the treating material suggested that the applicant was running out of treatment options. According to the applicant’s doctors, the treatment had been working quite well.
The respondent described the evidence from Dr Maxwell as unpersuasive. It was not apparent that Dr Maxwell or Dr Hardy had the full clinical picture.
The respondent confirmed that it did not seek to challenge the applicant’s motivation to rehabilitate his injured knee. It was not, however, enough that that the applicant thought medicinal cannabis would be a good idea. The test to be applied by the Commission was whether the treatment was reasonably necessary.
The respondent submitted that the applicant had failed to discharge his onus and there should be an award for the respondent.

Applicant’s submissions in reply

The applicant noted that the medicinal cannabis treatment was first prescribed in October 2022. The improvements in the applicant’s condition could be attributed to the cannabis treatment.

FINDINGS AND REASONS

Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[1] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[1] (1986) 2 NSWCCR 32 (Rose).
Further, his Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[2] and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[2] [1997] NSWCC 1.
In Diab v NRMA Ltd[3], to which the parties have referred in these proceedings, Roche DP provided a summary of the relevant principles as follows:
“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.
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.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[4]
[3] [2014] NSWWCCPD 72.
[4] At [88] to [90].
Deputy President Roche commented further:[5]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[5] At [86].
There is no doubt that the applicant in this case sustained a very significant injury to his left knee on 20 August 2022. The injury to the knee required two surgical procedures and gave rise to a protracted rehabilitation period, during which the applicant was treated with physiotherapy, hydrotherapy, orthotics and braces in addition to a conventional medication regime.
It is also apparent from the material before the Commission that the applicant has endeavoured, in earnest, to rehabilitate his knee and has been successful in returning to employment.
It is in this context that the applicant has sought to supplement the more conventional treatments for his knee injury recommended by his general practitioner and orthopaedic surgeon Dr Adie, with medicinal cannabis treatment. The primary purpose of the medicinal cannabis treatment was noted to be to alleviate the applicant’s insomnia and pain. I accept that the applicant did indeed experience ongoing pain at his left knee and sleep disturbance as a result of the workplace injury.
In order for the costs of the medicinal cannabis treatment to be compensable, however, the applicant must demonstrate on the balance of probabilities that such treatment was “reasonably necessary” as a result of the injury.
The causal component of the test in s 60 of the 1987 Act is not in issue in these proceedings. There is, however, a real dispute as to the appropriateness of such treatment.
In his statement evidence, the applicant justified his use of medicinal cannabis treatment on the basis that he had trialled a number of different pain relieving medications, none of which had provided lasting benefit.
The treating material before the Commission, most notably the discharge referral from
St George Hospital and the clinical notes of Dr Yip, indicate, however, that most of the medications described by the applicant in his statement and the history provided to Dr Hardy were prescribed during the applicant’s hospital admission and in the immediate aftermath of his first surgery. The applicant was advised to cease using clonidine and slow release tapentadol within a week of his discharge. The applicant was advised to consult his general practitioner to monitor the analgesia regime and titrate as appropriate.

The clinical records from Dr Yip indicate that from early September onwards, the applicant was using panadol and nurofen as well as palexia as required. The applicant was also being treated with physiotherapy.
A little over a month following his discharge from hospital, the applicant commenced treatment with medicinal cannabis.
The applicant’s evidence suggested that he was referred to his medicinal cannabis clinic, MiDispensary, by his general practitioner, Dr Yip. As noted by the respondent, nothing in
Dr Yip’s clinical records or reports suggests that he recommended medicinal cannabis treatment or referred the applicant to MiDispensary, even though it is clear that Dr Yip was aware of the applicant’s use of cannabis.
Similarly, the applicant has given evidence, which is corroborated by Dr Yip, that the medicinal cannabis treatment was approved by Dr Adie. There are several reports from
Dr Adie in evidence before the Commission, however, I have not been referred to any reference to the applicant’s use of medicinal cannabis in that material.
There is no opinion from either Dr Yip or Dr Adie, regarding the effects of the applicant’s conventional medicinal treatments or the appropriateness of the medicinal cannabis treatment.
The applicant’s evidence as to the effects of the conventional treatments prescribed by Dr Yip and Dr Adie is minimal. The applicant described the conventional treatments as being without lasting benefit. The applicant described the treatments as ineffective and having “unacceptable side-effects”. The only side-effect clearly identified in the applicant’s statement evidence was an alleged weight gain of up to 20 kg in seven days from using opioids. Such a rapid weight gain is not documented in the treating medical evidence and there is no opinion from a doctor as to the cause of such weight gain, if it in fact occurred.
Elsewhere in the material there is reference to the applicant reporting headaches, drowsiness, nausea and constipation from his conventional medications. I have not, however, been taken to any reference to unwanted or intolerable side-effects from the applicant’s conventional medications in the treating evidence from Dr Yip and Dr Adie. To the contrary, those materials suggest that the applicant continued to use panadol and nurofen as well as palexia as required even after the commencement of treatment with medicinal cannabis.
The applicant has given evidence that he was treated at a pain clinic at St George Hospital but has not provided any evidence as to the nature or outcomes of such treatment.
The opinions and evidence on which the applicant relies from Dr Maxwell, MiDispensary and Dr Hardy were founded on the assumption that the applicant had treatment resistant chronic pain and insomnia which had failed to respond adequately to other medications and that such medications had produced intolerable side-effects. For the reasons given above, I am not satisfied that this history is borne out in the treating evidence from Dr Yip and Dr Adie, even though I do accept that that the applicant continued to experience symptoms arising from the knee injury.
The clinical records from MiDispensary indicate that the medicinal cannabis regime prescribed to the applicant was not without its own problems. Those notes suggest that the applicant found certain prescriptions provided minimal pain relief or therapeutic benefit. The applicant noted increased anxiety, palpitations, a feeling of getting high without any analgesic effect and feeling groggy in the morning due to some of his prescriptions. The clinical notes reveal fluctuating levels of pain. The availability of certain prescriptions was also noted to be problematic. The applicant was recorded to have sourced his own medicinal cannabis and to have consumed quantities in excess of his prescriptions in order to achieve therapeutic benefit. Ongoing symptoms of pain as well as symptoms of a psychological nature continued to be reported in the clinical records from both MiDispensary and Dr Yip, following the commencement of medicinal cannabis treatment.
Dr Maxwell has, in her more recent reports, suggested that the applicant was trialling different regimes and that the current regime worked. Dr Maxwell further suggested that the medicinal cannabis treatment did not cause any side-effects. This opinion is, however, difficult to reconcile with the clinical records and the apparent cessation of medicinal cannabis treatment in or around August 2023.
As noted by the respondent, the applicant has not addressed the effects of treatment recorded in the MiDispensary records or the cessation of treatment in his own statement evidence.
Both Dr Maxwell and Dr Hardy have suggested that medicinal cannabis treatment was cheaper than conventional medications. I am not satisfied, however, that this opinion is accurate in the applicant’s case given the considerable expenses occurred. The applicant’s actual expenditure was more than triple Dr Hardy’s estimate of $600 per month in certain months. Dr Gronow has noted that the applicant’s medicinal cannabis treatment was extremely expensive compared to other medications.
The opinions given by Dr Hardy and Dr Maxwell were also founded upon the view that there were no alternative treatments available. I have accepted above that the applicant continued to experience pain and restrictions as well as other symptoms as a result of his knee injury for an extended period after the surgical treatment of the injury. I also accept that
Dr Gronow’s identification of the other potentially available alternative treatments was vague and unhelpful. There is, however, no evidence that the applicant consulted Dr Yip or Dr Adie about trialling alternative treatments either before or after commencing medicinal cannabis treatment. In fact, there appears to have been little variation in the treatment regime prescribed by Dr Yip in the period following the injury. As noted above, no evidence as to the outcomes or recommendations of the pain management clinic have been placed before the Commission.
Although Dr Hardy has, on the face of his report addressed the relevant considerations in determining whether the treatment was reasonably necessary, his opinions are expressed in general terms and do not give the Commission confidence that he has accurately considered the applicant’s particular circumstances. For example, Dr Hardy referred to a “trial” of medicinal cannabis as being a reasonable next step. By the time the applicant was seen by Dr Hardy, however, he had been taking medicinal cannabis for approximately eight months. Dr Hardy referred to side-effects associated with anti-neuropathic medications, anti-inflammatory drugs and strong opioid analgesics without addressing whether the applicant was taking such medications beyond the immediate post-operative period. The evidence suggested rather that the applicant’s symptoms were being managed with panadol and nurofen and palexia only as required. The applicant did not claim to have experienced many of the side-effects described by Dr Hardy such as cognitive impairment, addiction, depression or suicide. The clinical material does, however, suggest that the applicant reported psychological symptoms after the commencement of medicinal cannabis treatment.
The reports of both parties’ experts reveal a divergence of professional opinions as to the suitability or reasonableness of medicinal cannabis treatment per se. I accept that medicinal cannabis treatment is regarded by a significant body of medical professionals as an appropriate treatment for chronic pain. The Commission’s task is to determine whether the treatment is reasonably necessary in the applicant’s particular circumstances.
Having carefully considered the documentary evidence and submissions placed before the Commission in light of the relevant considerations identified in the legal authorities referred to above, I am not satisfied that the incurred treatment expenses claimed were reasonably necessary as a result of the applicant’s injury.
Whilst I accept that the applicant, Dr Maxwell and Dr Hardy regarded the treatment as appropriate and potentially effective, the actual effectiveness of the treatment, in comparison to the other treatments prescribed by Dr Yip and Dr Adie remains unclear on the totality of the evidence before me. The cost of the treatment was considerable and appears excessive in comparison to the other treatments paid by the insurer. The evidence from Dr Yip and
Dr Adie does not demonstrate that the conventional treatments prescribed by them were ineffective or unsuitable or that alternative treatments were trialled. I am not satisfied that alternative and potentially effective treatments, at a far less significant cost, were not available to the applicant.
In all the circumstances, I am not satisfied that the applicant has discharged his onus. There will be an award for the respondent in respect of the claimed expenses accordingly.

[2024] NSWPIC 4

8 January 2024