Bliss v State of NSW (Illawarra Shoalhaven Local Health District)
[2021] NSWPIC 269
•2 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bliss v State of NSW (Illawarra Shoalhaven Local Health District) [2021] NSWPIC 269 |
| APPLICANT: | Thomas Bliss |
| RESPONDENT: | State of NSW (Illawarra Shoalhaven Local Health District) |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 2 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for costs payable under s 60 of the 1987 Act for medical cannabis treatment resulting from injury sustained to the applicant’s low back on 10 May 2013 during the course of his employment with the respondent; Held- the applicant requires medical and related treatment resulting from injury sustained to his low back on 10 May 2013 during the course of his employment with the respondent and medical cannabis treatment is reasonably necessary treatment resulting from that injury. |
| DETERMINATIONS MADE: | The Commission notes: 1. The applicant’s claim for future treatment for physical therapy (annual gym pass, hydrotherapy and exercise physiology) and the applicant’s claim for the costs associated with a gym exercise bike payable under s 60 of the Workers Compensation Act 1987 is discontinued, and the requirement to lodge and serve a notice of discontinuance relevant to this aspect of the applicant’s claim is dispensed with. 2. The applicant’s claim for future treatment with Dr Ferris, Dr Lal and Ms Mulready payable under s 60 of the Workers Compensation Act 1987 has resolved in the applicant’s favour. 3. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 for injury sustained to his low back on 10 May 2013 has resolved for 19% whole person impairment and the parties have entered into a Complying Agreement dated 3 June 2021. The Commission determines: 4. The applicant requires medical treatment and services as a result of the injury he sustained to his low back on 10 May 2013. Medical cannabis treatment is reasonably necessary treatment resulting from the injury the applicant sustained to his low back on 10 May 2013. The Commission orders: 5. The respondent is to pay the costs associated with the applicant’s medical cannabis treatment in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Thomas Bliss (the applicant) was employed by the State of NSW (Illawarra Shoalhaven Local Health District). He sustained injury to his low back on 10 May 2013 during the course of his employment with the respondent. He was medically retired effective 23 October 2018.
The claim for compensation in these proceedings involves the following:
(a) past treatment at CA Clinics (CAC) and prescriptions costs in the sum of $13,961.25;
(b) future treatment for physical therapy (annual gym pass, hydrotherapy and exercise physiology), at CAC and prescriptions, with Dr Ferris for pain management, with Dr Lal for psychiatric treatment, with Ms Mulready for psychological counselling, and a gym exercise bike, and
(c) permanent impairment compensation for 23% whole person impairment resulting from injury sustained by the applicant to his low back on 10 May 2013.
The applicant’s claim for compensation before the Commission was declined with the applicant having been issued with a number of notices in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and in response to request made in accordance with s 287A of the 1998 for review of a decision to the decline the applicant’s claim.
The applicant’s claim for psychiatric treatment with Dr Lal and psychological counselling with Ms Mulready resolved at teleconference on 24 May 2021.
The applicant’s claim for permanent impairment compensation resolved for 19% whole person impairment, which is evidenced by a Complying Agreement dated 3 June 2021[1].
[1] Respondent’s Application to Admit Late Documents dated 1 July 2021 and late documents (R AALD) at page 4.
The applicant’s claim for pain management treatment with Dr Ferris and his claim for an annual gym pass resolved during the conciliation phase of the conciliation/arbitration hearing listing on 7 July 2021.
The applicant discontinued his claim for physical therapy (hydrotherapy and exercise physiology) and the gym exercise bike.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) CA Clinics (medical cannabis treatment).
PROCEDURE BEFORE THE COMMISSION
The applicant’s claim for compensation initially came before me for teleconference on 24 May 2021. Ms Kerr appeared for the applicant as Mr Wells was unavailable. Ms Angwin, solicitor, appeared for the respondent. Ms Sheehan, a representative of the respondent, was present. The applicant was present. The applicant’s claim for permanent impairment compensation and his treatment at CA Clinics and prescriptions costs, his physical therapy (annual gym pass, hydrotherapy and exercise physiology), his treatment with Dr Ferris for pain management and the costs associated with gym exercise bike was unable to resolve on this occasion and the applicant’s claim was listed for conciliation/arbitration hearing in the Commission.
The applicant’s claim came before me for conciliation/arbitration hearing on 7 July 2021.
Mr Wilson of counsel appeared for the applicant, instructed by Mr Wells. Ms Goodman of counsel appeared for the respondent, instructed by Ms Angwin. A representative from EML was present. The applicant was present.I am satisfied that the parties to the dispute arising relevant to the applicant’s treatment at CA Clinics and prescriptions costs 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 Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply and attached documents;
(c) Applicant’s Application to Admit Late Documents dated 1 July 2021 and attached documents (A AALD), and
(d) Respondent’s Application to Admit Late Documents dated 1 July 2021 and attached documents (R AALD).
Oral Evidence
Neither party sought leave to adduce oral evidence or cross-examine any witnesses.
FINDINGS AND REASONS
Review of evidence
A brief summary of evidence follows. The background to the applicant’s claim is not without complication and I am grateful to counsel for the assistance provided in navigating the evidence before the Commission. For the purposes of this review I note that “cannabis” is a term for a genus of plants and “marijuana” is a species that belongs to the cannabis genus.
Statement of the applicant
The applicant relied on a number of statements, which are dated 24 October 2017[2], 21 November 2018[3], 22 July 2020[4] and 8 February 2021[5]. The latter statement was attached to an earlier statement of the applicant dated 1 February 2021[6].
[2] ARD at page 1.
[3] ARD at page 14.
[4] ARD at page 18.
[5] ARD at page 26.
[6] ARD at page 32.
The applicant has not returned to work since he ceased work with the respondent on 6 October 2017.
The applicant explained in essence that approximately 12 months prior to coming to surgery his medication regime included Tramal, Endep, Panadeine Forte, Lexapro, Ceclor, Lyrica, Doxycycline Sandoz and Voltaren, with varying benefits and side effects. In July 218 the applicant attended the ADAPT Program at Warilla Northshore Hospital Pain Clinic as an inpatient for three weeks and relevant to this program the applicant was under the supervision of Dr Nicholas who advised him in discussion that long term use of opiate/opioid drugs were “counterproductive” to his health. Following the ADAPT Program which was of minimal assistance to the applicant, the applicant’s treating general practitioner, Dr Nguyen, reinstated the applicant’s opioid drugs with unwelcome side effects and in September 2018 the applicant discussed a referral for medical cannabis treatment with Dr Nguyen. Also in September 2018, the applicant’s treating psychiatrist, Dr Lal, supported a referral for the applicant to the Cannabis Access Clinic (CAC) for medical cannabis treatment. In October 2018 the applicant requested a referral for medical cannabis treatment to CAC, with a request for medical cannabis treatment subsequently approved by the Therapeutic Goods Administration (TGA). The applicant commenced medical cannabis treatment in February 2019 and the applicant’s supervising treating specialist at CAC is currently Dr Goriparti. In addition to the supervision provided by Dr Goriparti, the applicant remained under the care of his treating general practitioner and treating psychiatrist, who also monitored his progress in using medical cannabis treatment.
Following contested arbitral hearing in the Commission, which resulted in determination that the proposed surgical treatment recommended by the applicant’s treating neurosurgeon,
Dr Scholsem was payable in accordance with s 60 of the 1987 Act, the applicant came to L5/S1 fusion surgery on 21 November 2019. The applicant’s recovery was problematic, with the applicant receiving multidiscipline treatment in the nature of pain management, physiotherapy, hydrotherapy and psychiatric consultations.On 5 June 2020 the applicant successfully ceased using opioid drugs after gradually reducing his dosage over time, with significant improvement in his wellbeing. While the applicant continued to suffer with low back pain, the applicant said of his medical cannabis treatment:
“… I have an improved quality of life and am better able to manage pain to improve my functional capacity to a safe and durable return to gainful employment”.
The applicant made application for approval of his medical cannabis treatment, but this was declined with the result the applicant ceased medical cannabis treatment on 1 September 2020, with a subsequent escalation in pain and a decline in his health and wellbeing. Following discussion with Dr Lal, the applicant re-instigated his medical cannabis treatment and remained under the supervision of Dr Goriparti, and again ceased with opioid medication.
In his statement the applicant provided no history of previous cannabis/marijuana use or addiction.
Treating medical evidence
Wollongong Medical Centre
The consultation records provided by Wollongong Medical Centre[7] indicated that Dr Nguyen is one of the doctors under whose care the applicant has come at the medical centre. The applicant was a long term patient of the medical centre, having first attended there on 28 August 2008.
[7] R AALD at page 31.
The applicant relevantly consulted with Dr Nguyen on 15 May 2013 with complaint of his work-related low back pain and on 21 November 2013 Dr Nguyen’s notes include reference to the applicant smoking synthetic marijuana, which he suggested the applicant “quit smoking”. On 3 December 2013 Dr Nguyen’s notes included reference to “Synthetic Marjuana [sic] substance abuse for 30 years plus” and on this occasion a GP Mental Health Treatment Plan was created, which included reference to a past history of marijuana use.
It is evident the applicant’s low back pain remained problematic and while cortisone injections appeared to provide relief, the relief is not long lasting with the applicant’s low back pain continuing to trouble him throughout 2014.
The applicant’s low back pain continued to remain problematic throughout 2015. The applicant is reviewed by Dr Cheruki, neurosurgeon, on 27 January 2015 with reported 50% chance that the applicant will come to surgery. The claimant came under the care of
Dr Scholsem, neurosurgeon on 22 April 2015 and by 1 October 2015, with a deterioration in his mental health, the applicant also came under the care of Dr Lal, psychiatrist.The applicant’s low back continued to trouble him throughout 2016 and in late 2016 the applicant sought second opinion from Professor Jaeger, neurosurgeon, who recommended surgical treatment.
The applicant continued to attend the medical centre with complaint of low back pain throughout 2017 and declinature of an initial request for approval for the recommended surgical treatment is noted.
On 14 February 2018 Dr Nguyen noted the applicant cared for his wife who is suffering from terminal cancer and with constant complaint of low back pain throughout 2018 and the applicant’s further request for approval for surgical treatment declined, Dr Nguyen relevantly noted on 26 November 2018:
“Dr Lal supports the idea of cannabis use to control his back pain
form signed by Dr Lal”.On 10 January 2019 Dr Nguyen noted the applicant “has appointment with the doctor of Canabis [sic] clinic”, on 17 January 2019 he noted the applicant “will enrol in cannabis clinic”, and on 18 February 2019 he noted the applicant is “applying for cannabis medication”. On 7 March 2019 Dr Nguyen noted the applicant “will try Cannabis medication for pain” and on 18 March 2019 Dr Nguyen noted the applicant had commenced with medical cannabis treatment with some relief. On 11 April 2019 Dr Nguyen noted the applicant is “slowly weaning” off his opioid medication.
On 24 April 2019 Dr Nguyen recorded the applicant has reduced his daily dose of medical cannabis as he had a limited current supply. Dr Nguyen also made the following note:
“stress
mood swing, was in a rage
with a driver who drove on the walkway
and then was in a rage with his wife”.
On 26 April 2019 Dr Nguyen noted the applicant remained unable to replenish his supply of medical cannabis and “needs to increase analgesia Targin” (being his opioid medication). By 5 June 2019 Dr Nguyen noted the applicant is “now off Targin” and is relevantly using medical cannabis treatment “for pain”. On 8 July 2019 while Dr Nguyen noted the applicant continued to use medical cannabis for pain but “needs medication when not able to get supply of it”. On 31 August 2019 Dr Nguyen noted the applicant is awaiting approval for his request for medical cannabis treatment and wrote “mood change when withdrawal from it”. On 2 October 2019, Dr Nguyen noted the applicant has “started to have Cannabis oil” but still required opioid medication for his pain. The applicant continued to consult with Dr Nguyen with complaint of back pain up until he came to surgical treatment under the care of
Dr Scholsem on 20 November 2019, with Dr Nguyen noting during this time that the applicant’s medical management is principally medical cannabis treatment and opioid medication.Following surgical treatment Dr Nguyen continued to prescribe opioid medication to the applicant for pain relief, and on 14 February 2020 Dr Nguyen noted the applicant transfers his general medical care to Dr Jover “for more convenient”.
Relevant among the clinical records provided by Wollongong Medical Centre was a GP Mental Health Care Plan dated 18 March 2012 that noted the applicant’s then current mental health issues as “depression” and “pot use” with referral to a psychologist for the purpose of “detox” and correspondence dated 11 April 2012 from the applicant’s then treating psychologist Steve Patrolati[8]. The applicant was referred to Mr Patrolati to address his cannabis dependence, with Mr Patrolati recording “a long history of cannabis dependence with associated depression that appears to be a reaction to family abandonment issues from childhood”.
[8] R AALD at page 258.
Illawarra Medical Services
As noted, the applicant came under the general medical care of Dr Jover, with Dr Jover reporting on 7 October 2020[9] that the applicant would benefit from pain specialist care in circumstances where he “has ongoing chronic low back pain, which has increased post fusion and after the decision to remove medical cannabis for therapeutic treatment”.
[9] ARD at page 194.
Royal North Shore Hospital
The applicant was referred to the ADAPT pain management program with Dr Kite and Associate Professor Wrigley reporting on 4 May 2018 following initial consultation[10]. The applicant undertook a three week ADAPT course, with a progress report dated 11 July 2018[11] reporting the applicant had overall made a number of important gains in the program to date, including cessation of his opioid medication. The applicant did not further attend the ADAPT program.
Dr Tan
[10] ARD at page 255.
[11] R AALD at page 581.
The applicant came under the care of Dr Tan for pain management, with Dr Tan reporting on 22 January 2020[12]. Dr Tan noted that while the applicant came to surgical treatment under the care of Dr Scholsem on 20 November 2019, with continuing low back pain his medical management continued to include opioid medication, for which he provided caution. It is evident from Dr Nguyen’s letter of referral to Dr Tan dated 12 December 2019[13] Dr Tan was alerted to the fact that the applicant’s current medical management included medical cannabis treatment.
Dr Ferris
[12] ARD at page 185.
[13] R AALD at page 926.
The applicant subsequently came under the care of Dr Ferris for pain management, with
Dr Ferris providing a number of reports dated 19 October 2020[14], 25 January 2021[15] and 16 February 2021[16], all of which provide significant support for the applicant’s use of medical cannabis treatment with reasoning. In the latter report Dr Ferris writes:“… in my opinion it is appropriate for Thomas to have pain management with myself or with a practitioner of my speciality and the use of medicinal cannabis is appropriate and reasonably necessary as a means of managing/treating his chronic pain.
The medicinal cannabis therapy has enabled Thomas to cease his opioid mediations and Normison and his level of function and mental health have improved. His pain is well controlled and his anxiety has improved. Medicinal cannabis is the best option for Tom to control his pain and improve his frame of mind. Thomas has satisfied all the requirements of the Therapeutic Goods Administration (TGA) and the relevant guidelines for prescription and use of medicinal cannabis. The use of cannabis and its benefits outweigh the risk of side-effects from medicinal cannabis”.
CAC
[14] ARD at page 195.
[15] ARD at page 197.
[16] ARD at page 199.
Over time the applicant came under the care of three specialist doctors at the CAC.
The applicant first consulted with Dr Nijhawan on 9 January 2019 with Dr Nijhawan making application for medical cannabis on 25 January 2019. In the application Dr Nijhawan relevantly responded to specific questioning that the applicant had no past use of cannabis.
Dr Nijhawan provided a response to a request for comprehensive clinical justification for the applicant’s use of medical cannabis in preference to other treatments for chronic pain on 6 February 2019[17] in the following terms:
“… Thomas describes his pain as “through the roof”, it is so severe that he is unable to get out of bed most days due to the pain. He is currently caring for his wife who has terminal cancer and is unable to help much due to the pain.
Thomas has trialled many conventional treatments since his diagnosis 6 years ago. He started on paracetamol/codeine, and then went onto tramadol, then Targin up to 60mg a day. Eventually he was put on Fentanyl patches. The side effects from the opioids were quite severe, including severe abdominal pains, lack of bowel movements for days, and inability to sleep. He then saw a pain clinic at royal north shore hospital however they were unable to offer further help. He is currently looking into surgery/disc fusion however he was advised that the surgery will likely not help with the pain, but will stop the “disc from rubbing”.
[17] AALD at page 24.
The application made by Dr Nijhawan was approved and when the applicant subsequently came under the care of Dr Murray, Dr Murray made a further application for medical cannabis on 10 March 2020, which was also approved.
From a report prepared by Dr Murray dated 28 April 2020[18] it is evident the applicant had been treated with medical cannabis “for the last year or so”. The applicant’s symptoms had reportedly improved since commencing medical cannabis treatment, with an improved ability in the distance he was able to walk and a reduction in his opioid medication. The applicant’s opioid medication was described as having been “a longstanding problem for the patient”.
Dr Murray noted the applicant’s surgical treatment had not resulted in pain relief for the applicant and provided opinion in the following terms:“Given the information regarding the patient’s current condition, international evidence that is available, patients history of improvement whilst being treated with medicinal cannabis and the alarming effects from longterm opioid use, it can be said that medicinal cannabis has indeed been beneficial to the patient and will continue to be so”.
[18] ARD at page 189.
The applicant subsequently came under the care of Dr Goriparti, with Dr Goripati initially making application for medical cannabis on 12 June 2020[19], which was approved. The applicant remains under the care of Dr Goriparti.
[19] A AALD at page 105.
In the Patient and Consent Form dated 18 June 2020[20] relevant to medical cannabis use there was note of recognised side effects, there was caution as to the possible adverse effects of long term use, and there was reference to regular monitoring by a CAC doctor once a patient has commenced treatment with medicinal cannabis. Of particular import in the circumstances of this particular matter is that the applicant was also cautioned that “[B]ecause of the potential harm it may cause the patient, medicinal cannabis may not be suitable for people with … [A] current or past history of drug dependence of substance abuse” and in response to specific questioning the applicant relevantly denied (a) that he has ever been advised or told by a doctor or medical professional not to take cannabis, and (b) that he has a current or past history of drug dependence or substance abuse.
[20] A AALD at page 16.
The clinical records from the CAC clearly document the applicant’s consultations with the specialist doctors at the clinic over time and his medical cannabis treatment journey. There was clear indication on review on 19 December 2020[21] that the medical cannabis treatment “has made a huge difference in his quality of life” and of note is that on review on 6 March 2021 the applicant reported a return in pain soon after a reduction in his dosage of medical cannabis.
Dr Scholsem (treating neurosurgeon)
[21] AALD at page 35.
The applicant came under the care of Dr Scholsem, neurosurgeon, with Dr Scholsem initially reporting on 29 April 2015[22]. At that early stage, Dr Scholsem recommended conservative treatment for at least 6 to 12 months, with the possibility of surgical treatment if the applicant remained symptomatic. In his report dated 17 September 2018[23] Dr Scholsem noted the applicant remained symptomatic and noted too that “[H]e is now a carer for his wife who has cancer and is really keen to have something done for his chronic low back pain as he will have to look after his 14 year old son on his own”. Dr Scholsem felt “surgery could now be a good option”.
[22] ARD at page 172.
[23] ARD at page 174.
The applicant ultimately came to L5-S1 decompression and fusion on 20 November 2019 with Dr Scholsem reporting on 26 November 2019[24] the surgery was uneventful and the applicant did well post operatively. Dr Scholsem reported the applicant had been discharged with Palexia and Cannabis Oil with a request that the applicant consult with Dr Nguyen “in a few days to start weaning the Palexia”. On review on 3 January 2020, Dr Scholsem relevantly noted the applicant’s medical management included medical cannabis.
[24] ARD at page 178.
On 19 August 2020 Dr Scholsem reported to Dr Jover[25] the applicant had ceased opioid medication on 6 July 2020, which he noted was “quite an achievement” in circumstances where the applicant had been taking opioid medication for seven years.
[25] ARD at page 182.
In his report dated 20 November 2020[26] Dr Scholsem described the applicant as having “a few difficult weeks after EML refused funding for ongoing medical cannabis therapy”. He wrote:
“When I saw Thomas he had been able to stop taking Temazepam and was not taking opioids which is remarkable. I advised him, at that time, to continue the same therapy using medicinal cannabis and Thomas was reviewed by Dr Paul Ferris, Pain Medicine Specialist and Dr Lal, Psychiatrist who both clearly supported this therapy.
After being reviewed by Dr Gorman Thomas was asked to stop taking the Cannabis and to restart Panadeine Forte. Thomas’ mental health declined quickly and he explained to me that he was cooking for his wife’s birthday when the pain became so bad that he had to use alcohol again. This caused his significant distress and guilt as you know his wife has terminal cancer and every day with her, especially her birthday counts.
I still think that the medicinal cannabis therapy is reasonable and a necessary treatment and I do not think that there is any doubt regardless of the efficacity for Thomas’ pain management. I do also think that Thomas absolutely will require follow up with his psychiatrist and Pain specialist and he had the chance to find two excellent consultants already. I do not think that invasive treatment such as radiofrequency has any role in this case and as you know we do not need more evidence to say that opioid based analgesia for chronic low back pain has little or no role.”
Dr Lal
[26] ARD at page 183.
The applicant came under the psychiatric care of Dr Lal, with Dr Lal initially reporting as early as 29 September 2015[27] with diagnosis of Major Depressive Disorder. Following re-referral, in a report dated 26 November 2018[28] Dr Lal noted the applicant was reportedly in significant pain and the applicant had told him he would be applying to obtain medical cannabis. Dr Lal noted this to be in the form of “Cannabidiol and not psychoactive”. Dr Lal told the applicant he “had no concerns” about him going down this path. In his reports dated 12 February 2019[29] and 12 March 2019[30] it is evident Dr Lal was aware of the applicant’s use of medical cannabis treatment, and in his report dated 10 April 2019[31] Dr Lal wrote:
“Thomas reports a very positive effect of medicinal cannabis to date with a reduction in his pain. He said he is weaning off Targin. He has reduced his dose of Lyrica. Thomas said with the reduced level of pain he is able to engage in hydrotherapy, walk regularly and do more work around the house”.
[27] ARD at page 140.
[28] ARD at page 142.
[29] ARD at page 143.
[30] ARD at page 144.
[31] ARD at page 145.
While in his report dated 16 October 2019[32] Dr Lal acknowledged there was evidence that indicates medicinal cannabis was not good for mental health or suitable long term treatment of pain, he reports:
“With the use of medicine cannabis, Tom had successfully weaned off opiates. His pain was well controlled and his anxiety improved. … I feel treatment with medicinal cannabis is a reasonable and necessary treatment and has been shown to be the best option for Tom with respect to controlling his pain which then leads to a better frame of mind”.
Independent medical evidence
Dr Davies
[32] ARD at page 146.
The applicant was initially assessed by Dr Davies, neurosurgeon, in his capacity as independent medical examiner on 30 March 2016 and Dr Davies provided a report dated 4 April 2016[33]. In this report Dr Davies canvassed the circumstances of injury the applicant sustained to his low back on 10 May 2013 during the course of his employment with the respondent, and also the applicant’s subsequent treatment under the care of Dr Nguyen,
Dr Monahar, Dr Cherukuri and Dr Scholsen. At the time Dr Davies felt that surgical treatment was unlikely to benefit the applicant and indicated surgical treatment “carries a significant risk of making things worse”. Dr Davies recommended pain management and suggested consideration could be given to spinal cord stimulation, which he thought may provide significant relief to both the applicant’s low back pain and his leg symptoms.[33] ARD at page 200.
The applicant was re-assessed by Dr Davies on 7 October 2020 and Dr Davies provided a report dated 14 October 2020[34]. In this report Dr Davies noted the applicant had undertaken the ADAPT pain management program and come to surgical treatment under the care of
Dr Scholsen on 21 November 2019. Dr Davies noted the applicant reported no significant improvement in his back pain post-surgery and had been referred for pain management, initially under the care of Dr Tan and subsequently under the care of Dr Ferris. Dr Davies noted the applicant had been using medical cannabis treatment, which reportedly “[H]e found it helpful both in terms of relieving his pain and improving his sleep quality”. Such benefit reportedly ceased however when the applicant ceased using medical cannabis treatment.Dr Davies noted the applicant had ceased using opioid medication while using medicinal cannabis treatment.[34] ARD at page 209.
In response to specific questioning on this occasion about the applicant’s need for treatment, Dr Davies answered:
“Mr Bliss will need to continue on his current medications at this stage. I note he reports significant improvement in his pain and his sleep quality whilst using medicinal cannabis and told me he also felt much clearer in the head compared to when he uses opioid medications and other sedating medications, such as Normison. Given his response to medicinal cannabis previously, it would be reasonable to resume that treatment, as he was able to cease his opioid medications and his Normison whilst using medicinal cannabis. His level of function also improved with treatment”.
Dr Gorman
The applicant was assessed by Dr Gorman in his capacity as independent medical examiner on 10 Augus2020 and Dr Gorman has provided a number of reports. From his substantive report dated 25 August 2020[35] it is evident Dr Gorman had significant material available for his review, including clinical records of Wollongong Medical Centre. In this report Dr Gorman canvassed the circumstances of injury occurring on 10 May 2013, noted the applicant had come to surgical treatment under the care of Dr Scholsem on 21 November 2019 and was currently under the care of Dr Ferris for pain management. Dr Gorman noted the applicant was using medical cannabis treatment under the care of CAC and had consequently ceased using opioid medication, with benefit. Dr Gorman noted the applicant reported that the surgical treatment “had helped” although he continued to suffer pain in his back.
[35] Reply at page 75.
In response to specific questioning on this occasion about the applicant’s need for treatment, Dr Gorman was not supportive of the applicant continuing to use medical cannabis treatment. He essentially argued that while the applicant reported improvement with the use of medical cannabis treatment, it was difficult to determine with the applicant having come to surgical treatment, whether the improvement resulted from the use of medical cannabis treatment alone. Dr Gorman also makes reference to and attached to his report a “Statement on ‘Medicinal Cannabis’ with particular reference to its use in the management of patients with chronic non-cancer pain” released on 11 February 2019 by the Faculty of Pain Management, Australian and New Zealand College of Anaesthetists[36] which relevantly stated:
“At the present time, the scientific evidence for the efficacy of cannabinoids in the management of people with chronic non-cancer pain is insufficient to justify endorsement of their clinical use”.
[36] Reply at page 88.
In his supplementary report dated 24 September 2020[37] Dr Gorman provided opinion it was the beneficial results of the applicant’s surgical treatment which “were the most significant factor in him being able to reduce his opioids” and confirmed his previously expressed opinion the applicant’s medical cannabis treatment is addictive and “is not conducive to rehabilitation and return to work”.
[37] R AALD at page 6.
In his further supplementary report dated 28 May 2021[38] Dr Gorman relevantly noted that in a report dated 19 October 2020 Dr Ferris supported the applicant’s use of medical cannabis treatment despite efficacy in the literature because he “felt that in Mr Bliss’s case it was enabling improved function”. In stating that he had previously provided opinion about the use of medicinal cannabis treatment, Dr Gorman noted the Faculty of Pain Management, Australian and New Zealand Anaesthetists had provided a Media Release dated 28 May 2021[39] that essentially urged doctors not to prescribe medical cannabis products to treat chronic non-cancer pain unless the treatment was part of a registered clinical trial on the basis there was a lack of sufficient evidence to endorse the use of medical cannabis to treat pain. The faculty conceded however that such recommendation was not prescriptive but rather “intended as guidance to start a conversation between doctors and patients about what is appropriate and necessary”.
Submissions
[38] R AALD at page 12.
[39] R AALD at page 18.
Both counsel made oral submissions which I have considered. A copy of the recording of counsels’ submissions is available to the parties. In essence the applicant argued that medical cannabis treatment was reasonably necessary treatment for the injury he sustained to his low back on 10 May 2013 during the course of his employment with the respondent, being argument with which the respondent quibbled, particularly so in circumstances where the applicant appeared to have failed to provide details of his previous use of cannabis/marijuana to his supporting treating specialists and his supporting independent medical examiner.
Determination
Treatment
Is medical cannabis treatment reasonably necessary as a result of the injury sustained by the applicant to his low back on 10 May 2013 during the course of his employment with the respondent?
There is no dispute the applicant sustained injury to his low back on 10 May 2013 during the course of his employment with the respondent and it is evident from the documents before the Commission that despite ultimately coming to surgical treatment under the care of
Dr Scholsem on 20 November 2019 the applicant’s low back pain remained significantly problematic, with the applicant continuing to consult with his general practitioner and a number of specialists, including Dr Scholsem, Dr Ferris, Dr Lal and Dr Goriparti at CAC.
The critical issue for determination in this matter is whether medical cannabis treatment is reasonably necessary treatment as a result of the injury sustained by the applicant to his low back on 10 May 2013 during the course of his employment with the respondent. It is instructive to note an approach taken by Mason JA in his dissenting judgement in Migge v Wormald Brothers Industry Limited[40] at page 44:
“In cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation”.
[40] 2 NSWLR 20.
His Honour continued:
“The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his predispositions and susceptibilities, whatever they may be”.
This approach by Mason JA has the approval of the High Court of Australia and the New South Wales Court of Appeal, at least, in respect of the meaning of “results from” under the 1987 Act. In Kooragang Cement Pty Limited v Bates[41] the court determined that the phrase “results from” requires a common sense evaluation of the causal chain by paying due regard to the question posed by the 1987 Act, with the question posed in this particular matter being whether the disputed need for medical cannabis treatment “results from” the injury the applicant sustained to his low back on 10 March 2013. It is also instructive to note comment by Deputy Roche in Murphy v Allity[42] Management Services Pty Ltd [43]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA at [25] – [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ of the injury’ (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40] – [55]). That is, she has to establish that the injury materially contributed to the need for surgery (see discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
[41] 35 NSWLR 452.
[42] R AALD at page 18.
[43] [2015] NSWWCCPD 49.
Section 60 of the 1987 Act provides:
“60 (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 what is now s 60 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[44]. Burke CCJ said:
“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.”
[44] (1986) 2 NSWCCR 32 (Rose).
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.
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.”
In Diab v NRMA Ltd[45], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[45] [2014] NSWWCCPD 72 (Diab).
“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, 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”.
There can be no doubt that when the applicant sustained injury to his low back on 10 March 2013 during the course of his employment with the respondent, the respondent became liable for the treatment that results from that injury in the context of all of the applicant’s predispositions and susceptibilities, including any longstanding addiction he may have had to marijuana.
The applicant says he initially discussed a referral for medical cannabis treatment with
Dr Nguyen and while there was no reference in Dr Nguyen’s notes to this discussion, on 29 October 2018 Dr Nguyen noted the applicant proposes consulting with Dr Lai about the use of medical cannabis treatment, which Dr Lai subsequently supported. Following referral to CAC, a request made for medical cannabis treatment was approved by the TGA and the applicant commenced medical cannabis treatment in February 2019 under supervision. The applicant said of his medical cannabis treatment that it has assisted him in ceasing his opioid medication and he has “an improved quality of life and am better able to manage pain to improve my functional capacity to a safe and durable return to gainful employment”.Ms Goodman correctly submitted the applicant had failed to provide details of his previous use of marijuana/cannabis in his evidentiary statement before the Commission. She also correctly submitted the applicant had failed to provide details of his previous use of marijuana/cannabis to his treating specialists and his independent medical examiner,
Dr Davies. To my mind, of note too, is that despite reference in the clinical records of Wollongong Medical Centre as early as 18 March 2012 to the applicant’s long term use of cannabis/marijuana and his attempt to cease use under medical supervision, in the CAC Patient and Consent Form completed by the applicant on 18 June 2020, the applicant denied he had ever been advised or told by a doctor or medical professional not to take cannabis and that he had a past history of drug dependence or substance abuse. Although such failure by the applicant to disclose his previous use of marijuana/cannabis does not allow either his treating specialists or Dr Davies to provide opinion with a firm grasp of the applicant’s past medical history, I am mindful of comment by Samuels JA in Paric v John Holland Constructions Pty Ltd[46]:
“Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreoever, it is for the tribunal of fact to assess this factual basis”.
[46] [1984] 2 NSWLR 505.
The applicant sustained injury to his low back on 10 May 2013 and over a long period of time has engaged in conservative treatment, including multidiscipline pain management, before ultimately coming to surgical treatment under the care of Dr Scholsem on 20 November 2019. With minimal relief following his surgical treatment the applicant was referred for pain management, initially under the care of Dr Tan and subsequently under the care of Dr Ferris.
Dr Ferris specialises in pain management as does Dr Gorman. While the applicant failed to provide Dr Ferris with a previous history of marijuana/cannabis use, Dr Ferris had the opportunity to review the applicant on a number of occasions since he came under his care in late 2020 and he provided significant support for the applicant’s medical cannabis treatment with both reasoning and conclusion that the benefit the applicant experiences from his use of medical cannabis treatment outweighs the risk of side-effects from such treatment. Dr Gorman was only afforded the opportunity to assess the applicant on one occasion on 10 August 2020 and it is evident he had available to him clinical records of Wollongong Medical Centre at the time of assessment. While I accept the weight given to Dr Ferris’ opinion is diminished because he was not evidently aware of the applicant’s previous history of marijuana/cannabis use, the evidence before the Commission as a whole clearly demonstrates that despite coming to surgical treatment, the applicant suffers significant ongoing pain as a result of the injury he sustained to his low back on 10 May 2013 and his use of medical cannabis treatment effectively alleviates his pain, assists him in reducing his long term reliance on opioid medication, and improves his day to day function and his mental health.
However, as noted by Deputy President Roche in Diab, while the effectiveness of the treatment is relevant to whether treatment is reasonably necessary, it is not determinative and there remains other criteria to consider.
As to the appropriateness of medical cannabis treatment, Dr Scholsem clearly believed the applicant’s use of medical cannabis treatment to be appropriate, as did his treating general practitioners Dr Ngueyn and Dr Jover, and his treating specialists Dr Lal, Dr Ferris and
Dr Goriparti. Prior to Dr Goriparti taking over the applicant’s specialist’s care at CAC, the applicant was under the specialist care of Dr Nijhawan and Dr Murray, both of who also believed the applicant’s use of medical cannabis treatment to be appropriate. Dr Davies, who had the opportunity to assess the applicant on two occasions in his capacity as independent medical examiner also believed the applicant’s use of medical cannabis treatment to be appropriate. Dr Nguyen knew of the applicant’s previous history of marijuana/cannabis use and while I accept the weight of opinion provided by the other doctors referred is diminished because they were not evidently aware of the applicant’s previous history of marijuana/cannabis use I am not of the view the discrepancy that as arisen is “fatal” as there was significant evidence available to these doctors on which they have based their opinions, including the demonstrated effective use by the applicant of medical cannabis treatment.As to availability of alternative treatment and its potential effectiveness, it is significant that in his report dated 26 November 2019, Dr Scholsem reported the applicant had been discharged from hospital that day with Palexia and Cannabis Oil with request he consult with Dr Nguyen “in a few days to start weaning the Palexia”. There was no suggestion by
Dr Scholsem the applicant should cease medical cannabis treatment. It is significant that on 19 August 2020, some nine months later, Dr Scholsem provided opinion medical cannabis treatment is “reasonable and necessary” treatment for the management of the applicant’s pain. In providing such opinion Dr Scholsem specifically cautioned against the use of opioid medication to control chronic low back pain and said that he did not think invasive treatment such as radiofrequency (treatment that had been suggested by Dr Tan) would assist the applicant. It is significant too that in his report dated 16 October 2019, Dr Lal described the applicant as having “successfully weaned off opiates” and expressed opinion medical cannabis treatment is “reasonable and necessary” treatment for the management of the applicant’s pain. He described medical cannabis treatment as being “the best option” for the applicant.
As to the cost of treatment, the total cost of the medical cannabis treatment incurred by the applicant between 13 March 2019 and 15 January 2021 is particularised at $13,901.30[47]. During this particular period it is apparent the applicant spent approximately $144 each week on his medical cannabis treatment, which cannot be considered prohibitive.
[47] ARD at page 282.
As to the acceptance by medical experts of the treatment being appropriate and effective, while Dr Gorman made reference and provided comment by the Faculty of Pain Management, Australian and New Zealand College of Anaesthetists, regarding the use of medical cannabis treatment, it must be borne in mind the Faculty’s urging against the use of medical cannabis treatment to treat chronic non-cancer pain is conceded to be not prescriptive but rather is an intention “to start a conversation between doctors and patients about what is appropriate and necessary”.
Despite submission by Ms Goodman to the contrary (and I am mindful of comment by the High Court in Devries v Australian National Railways Commission[48] and cited by former President Keating in Brines v Wesgate Logistics Pty Ltd[49]) I am of the view the applicant provided a consistent and credible history to his general practitioners, his treating specialists and the independent medical examiners regarding the circumstances of his low back injury and consequential treatment, which included the use of medical cannabis treatment with beneficial outcome, albeit there is evidenced inconsistency elsewhere in the documents before the Commission going to a previous history of marijuana/cannabis and referral for assistance in cessation of use.
[48] [1993] HCA 78.
[49] [2008] NSWWCCPD 43.
Following review of the evidence as a whole and following careful consideration of counsels’ submissions, having particular regard to the support afforded to the applicant by his pain management specialist, Dr Ferris, under whose care the applicant remains, I am of the view the applicant’s use of medicinal cannabis treatment was and remains reasonably necessary treatment to manage the chronic back pain he suffers as a result of the injury he sustained on 10 May 2013 to his low back during the course of his employment with the respondent. In reaching my view I draw comfort too in the opinions provided by the applicant’s treating neurosurgeon, Dr Scholsem, and his treating psychiatrist, Dr Lal, both of who considered medical cannabis treatment was “reasonable and necessary” treatment for the injury the applicant sustained on 10 May 2013. In Diab Deputy President Roche accepted “reasonable and necessary” is “…a significantly more demanding test…” than that of “reasonably necessary”.
For reasons discussed above I accept the applicant’s use of medical cannabis treatment is reasonably necessary treatment for the low back injury he sustained on 10 May 2013 during the course of his employment with the respondent.
SUMMARY
The applicant sustained injury to his low back on 10 May 2013 during the course of his employment with the respondent.
The applicant’s claim for future treatment for physical therapy (annual gym pass, hydrotherapy and exercise physiology) and the applicant’s claim for the cost associated with a gym exercise bike payable under s 60 of the 1987 Act is discontinued.
The applicant’s claim for future treatment with Dr Ferris, Dr Lal and Ms Mulready payable under s 60 of the 1987 Act has resolved in the applicant’s favour.
The applicant’s claim for permanent impairment compensation payable under s 66 of the 1987 Act for injury sustained to his low back on 10 May 2013 has resolved for 19% whole person impairment with the parties entering into a Complying Agreement dated 3 June 2021.
Medical cannabis treatment is reasonably necessary treatment resulting from the injury the applicant sustained to his low back on 10 May 2013. The respondent is to pay the costs associated with the applicant’s medical cannabis treatment in accordance with s 60 of the 1987 Act.
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