Bradley v Allianz Australia Insurance Ltd
[2021] NSWPICMP 226
•1 December 2021
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Bradley v Allianz Australia Insurance Ltd [2021] NSWPICMP 226 |
| CLAIMANT: | Lourise Bradley |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL: | Principal Member John Harris Dr David Gorman Dr Shane Moloney |
| DATE OF DECISION: | 1 December 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - The claimant suffered from widespread pain and an underlying depressive disorder which was aggravated by a motor vehicle accident; this was a claim for the cost of referral to a Cannabis clinic and for medical cannabis; Held – the proposed treatment was not reasonable and necessary; statements were provided to the parties by the Faculty of Pain Medicine and a clinical memorandum of the Royal Australian and New Zealand College of Psychiatrists which did not support medical cannabis as a form of treatment other than for the terminally ill or as part of a clinical trial; there was a lack of effectiveness of medical cannabis in reducing pain and adverse effects include habituation/addiction, sedation and dizziness; the use of medical cannabis often leads to the use of other more addictive cannabis products such containing THC; those products cause adverse event profiles in cannabis users incusing psychotic symptoms and cognitive impairment; original medical assessment confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
Medical Assessment – Recovery and Treatment and Care
Review Panel Assessment of Recovery
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel confirms the certificate dated 3 March 2021.
Review Panel Assessment of Treatment and Care and
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel confirms the certificate dated 3 March 2021.
REASONS
Background
Ms Lourise Bradley suffered injury in a motor accident on 4 December 2018 when another vehicle failed to give way and collided into the left side of her vehicle.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Ms Bradley any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute are whether a referral for specialist review with Dr Sanjay Nijhawan at the Cannabis Access Clinic and associated prescription cannabis medication will improve the recovery of Ms Bradley and whether this treatment is reasonable and necessary in the circumstances and relates to the motor accident.
Section 7.17 of the MAI Act defines a “medical dispute” to include dispute between the parties about a medical assessment matter.
Pursuant to Schedule 2, clause 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24” and whether for the purposes of s 3.28 of the MAI Act “treatment and care provided to an injured worker will improve the recovery of the injured person”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the dispute is determined at first instance by a medical assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the Act.
The disputes were referred to Medical Assessor Thomas Rosenthal who issued a medical assessment certificate dated 3 March 2021. Medical Assessor Rosenthal concluded that the referral for specialist review with Dr Nijhawan will not improve recovery and the referral for specialist review with Dr Nijhawan was not reasonable and necessary in the circumstances.
The review
The applications for referral of the medical assessments to a review panel were made by Ms Bradley within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 7.26(10) of the MAI Act.
On 8 July 2021, the President’s delegate referred the medical assessments to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[4] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[4] Section 7.26(5A) of the Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the Act.
The Panel issued a direction to the parties requesting a provision of respective bundles. The parties complied with this Direction.
The Panel issued a further Direction dated 21 October 2021 concerning whether the examination with Ms Bradley could proceed by audio-visual means. The insurer was directed to produce any reports in its possession from Dr Nijhawan.
On 15 November 2021 the Panel issued a further direction attaching a media release from the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists, a clinical memorandum issued by the Royal Australian and New Zealand College of Psychiatrist and a statement on medicinal cannabis issued in 2019 by the Australian and New Zealand College of Anaesthetists. The claimant was then given liberty to:
“[F]ile and serve any articles or further evidence she wishes to rely upon by close of business, 22 November 2021. If further time is sought to adduce further material, then the claimant is to advise the Panel of the time required by close of business, 22 November 2021.”
On 22 November 2021 Ms Bradley forwarded to the Commission an email requesting an additional two weeks to file further material. Ms Bradley stated:
“I would like to request another 2 weeks please to submit further information and a letter from my Counsellor. It is stated by the PIC I have till close of business today to ask for more time. Please let me know immediately if this is not the case.
Access to my portal has continued to be seriously compromised, making it impossible to follow up medical reports which I feel have not been accurately portrayed by the insurer.
I just gained assistance from Susan in your tech dept to re access the portal. I need more time to read reports.”
In addition to that email, later on 22 November 2021 Ms Bradley filed a report from her counsellor and a letter regarding the examination held on 9 November 2021. These documents are set out later in these Reasons.
The Panel granted Ms Bradley a further short period to file any further material. The following direction was sent to the parties:
“The Panel notes [that] it has received a further statement from Ms Bradley and the report from Ms Eigenstetter. These documents are admitted on the Review
Ms Bradley has requested a further two weeks to file further evidence including “follow up medical reports which I feel have not been accurately portrayed by the insurer” (email sent at 3:45 pm to the Commission).
The purpose of the Panel’s recent direction dated 15 November 2021 was to allow Ms Bradley an opportunity to respond to the articles forwarded by the Panel to the parties and allow Ms Bradley an opportunity to comment on the examination. Leave was not granted to file material generally about the matter.
Ms Bradley is allowed until close of business, 26 November 2021 to file further evidence.”No further material was filed by Ms Bradley.
Statutory provisions
Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(1) An injured person is entitled to statutory benefits for the following expenses ("treatment and care expenses" ) incurred in connection with providing treatment and care for the injured person—
(a)the reasonable cost of treatment and care,
….
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
Section 3.28 of the MAI Act provides that treatment and care ceases after 26 weeks where the person was mostly at fault or otherwise only received minor injuries. However, an exception to the cessation of payments is provided by s 3.28(3) which provides:
“(1) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
The relevant Motor Accident Guidelines 2017 (the Guidelines) giving effect to when payments may be authorised after the six- month period pursuant to s 3.28 of the MAI Act are contained in clause 5.16. Clause 5.16 of the Guidelines contains the reference to “recovery” in the context of treatment of care after a period of 26 weeks. Further defined expenses are recoverable after 26 weeks, even though the injuries are only minor injuries, if one of three conditions apply. One of those conditions is that the “treatment and care will improve the recovery off the injured person”. The clause provides:
“5.16 For a person whose only injuries are minor injuries, the payment of treatment and care expenses incurred more than 26 weeks after the motor accident is authorised if the treatment and care is:
(a) medical treatment, including pharmaceuticals
(b) dental treatment
(c) rehabilitation
(d) aids and appliances
(e) education and vocational training
(f) home and transport modifications
(g) workplace and educational facility modifications
and:
(h) the treatment and care will improve the recovery of the injured person, or
(i) the insurer delayed approval for the treatment and care expenses, or
(j) the treatment and care will improve the injured person’s capacity to return to work and/or usual activities.”
Clauses 4.76 - 4.77 of the Guidelines provides:
“4.76 People respond differently after a motor accident injury. The insurer must manage claims in a manner that is tailored to the claimant, providing support based on best practice and tailored to their individual circumstances and needs.
4.77 The insurer should apply the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services, which sets out five guiding principles for consideration by health professionals and insurers when reviewing treatment plans and requests for services:
(a) measure and demonstrate the effectiveness of the treatment
(b) adopt a biopsychosocial approach – consider the whole person and their individual circumstances
(c) empower the injured person to manage their recovery
(d) implement goals focused on optimising function, participation and where applicable, return to work
(e) base treatment on the best available research evidence.”
Submissions
Ms Bradley submitted that she sought to review the decision to not fund the cost of medical cannabis and disputed some of the findings made by the medical assessor.
Ms Bradley stated that she did not want to tilt her head upwards as the post-accident whiplash triggers dizziness when she looks upwards.
Ms Bradley stated that her health issues are “snowballing” since the accident and she has severe daily headaches, stiff neck, jaw and shoulders and she can only sleep for a few hours at a time. She also has frequent episodes of full spinning vertigo a balance disorder and is so unstable that a frame is used at all times.
Apart from the injured sternum, none of the conditions have improved. Ms Bradley stated that she has chronic fatigue and gained 10 kilograms of weight due to inability to exercise and walk following the accident. Prior to the accident Ms Bradley stated she was “active, going for walks and exercising”.
Ms Bradley stated that she only rejected pain relief in hospital due to an extreme intolerance but did accept panadol, panadeine and an icepack.
Ms Bradley submitted that she does not accept the finding that medical cannabis is not a possible treatment. She said that she has “no other options” and has tried numerous treatments and is unable to use medication and medical cannabis is a last resort.
Ms Bradley referred to the evidence of specialists including two pain specialists, a doctor specialising in the use of medical cannabis and her psychiatrist.
The insurer submitted that the referral to Dr Nijhawan was not related to the motor accident as Ms Bradley had numerous pre-existing conditions affecting her capacity.
It also submitted that there was no medical evidence that this form of treatment aligned with contemporary medical practice and will provide measurable and sustained improvements to Ms Bradley’s recovery and capacity for usual activities.
The insurer submitted that the use of Cannabidiol “is the subject of ongoing research and clinical trials, with minimal concrete evidence to demonstrate effectiveness in the context of soft tissue injuries and aggravations of psychiatric injuries arising from motor accident injuries”.
The insurer referred to the article by Andre Penn dated 5 October 2019 which highlighted the lack of consensus in the area. It submitted that the product may present with common side effects and there was no certainty on its effect on other medications currently being taken. The use of Cannabidiol may present with common side effects and there was no certainty as to its effect on other medications.
The insurer noted that Dr Vogl in her report dated 11 September 2019 did not support the referral to the cannabis Access Clinic and that further treatment would not be in relation to the motor accident.
The insurer submitted that the further treatment would not improve recovery in accordance with s 3.28 of the MAI Act nor was it reasonable and necessary or related to the injuries arising from the motor accident.
In the written submissions on review the insurer referred to the extensive pre-existing conditions discussed by Dr Vogl in her report dated 19 December 2018, the clinical notes of Dr Ngo, records from Sutherland Hospital of 13 December 2018, discharge referral summary and records of Calvary Health, AHRR requests dated 28 April 2019, 16 June 2019 and 4 July 2019. It disputed Ms Bradley’s assertion that the pre-accident complaints were insignificant.
The insurer submitted that there was no clear evidence that the pre-existing conditions had been aggravated by the motor accident.
The insurer submitted that there is no reference to medicine cannabis in the Guidelines and the clinical framework principles for injured persons noted treatment effectiveness should be measured with standardised outcome measurement tools that are reliable and valid. There was a lack of consensus of medicinal cannabis which is experimental and where psychiatric disorders were present.
Following the examination by the Medical Assessors, Ms Bradley requested and was granted leave to provide additional submissions and comments.
On 22 November 2021, Ms Bradley forwarded the following letter to the Commission:
“Following our video conference on 16th November 2021 (sic 9 November 2021), I would like to provide further supporting information and clarification around a few particular points.
Firstly, you asked about the main cause of my headaches and I responded with my neck positioning during sleep. However, upon reflection, travelling in a car equally worsens my symptoms ie stiffer neck, shoulders and worsening of headaches. I feel it is the jostling, vibrations etc, to the point where I always have to use a peanut cushion and am considering purchasing a neck brace for travel. There are many other causes, these are 2 of the worst.
Also, the 20 min travel time I referred to only happens when absolutely necessary and on these occasions I am driven by support workers.
Secondly, we discussed my physiotherapy and whether it was successful.
I responded that physiotherapy was not helpful with countless physio sessions over the last few years and only mildly helpful recently - this was in reference to mild and temporary relief she gives me for my arm pain, (supposedly due to whiplash), in fact my headaches seem to worsen after treatment.I have tried every possible avenue to relieve my whiplash symptoms - committed physical therapy, regular panadol and panadeine (other drugs trialed as well and were discontinued not just due to side effects but did absolutely nothing for the pain), acupuncture etc
You asked me about the rehab at Calvary and upon further recollection I remembered having no treatment for the first 2 or 3 days and then after becoming very stiff and sore and having worsening of my headache pain I started exercise sessions with Junior physios who did not know much about my condition/needs. I did stay for a week and needed to go home due to exacerbation of my pain and inability to sleep. I was not being supported by the Specialist (this is acknowledged by a report from Dr Morgan at the time).
Also, the Insurer has mentioned a quote by Dr Morgan stating that the cbd was also for pre existing conditions. I have no record of this, only him reporting "she has really gone backwards in regards to her physical conditioning program" ie post accident
My cbd oil was 100% free of thc - the article you sent refers mostly to side effects of thc. Also, this recent article was not relevant at the time of subscription/ recommendation.
I am sorry this is so late. I have not been able to have proper access to my portal (the tech dept has had lots of problems with it) and still haven't read most of the reports. I had tried for 2 weeks prior to last week's review to contact Brooke Larkins, no reply and a few times today tried Christina Ryan to ask for more time - no reply as well.”
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the Direction. The following is a summary of this material relevant to the dispute.
An outcome of internal review by the insurer dated 17 September 2019 declined the request for specialist review with Dr Sanjay Nijhawan.
On 14 October 2019 Ms Bradley claimed various expenses, including, relevantly for the present dispute, a report from Dr Hugh Morgan recommending medical cannabis, receipts for cannabis in the cost of $423.50 and payments for Dr Sanjay Nijhawan totalling $530.
Dr Morgan, Consultant Psychiatrist, provided a referral dated 16 July 2019 for
Ms Bradley to see Dr Nijhawan. The doctor noted that Ms Bradley was progressively becoming bed bound to chronic back pain, headache and somatoform disorder. The doctor noted that many psychotropic medications had been tried and proven unhelpful as Ms Bradley was very sensitive to medication side effects and they had become very problematic for her. The doctor stated:
“Louise would like to trial medicinal cannabis and I think this is a very reasonable thing for her do in conjunction with a physical conditioning program to help treat her physical deconditioned state as well as treat her anxiety, depression and pain.”
Dr Laura Vogl provided a report dated 19 December 2018. Dr Vogl noted that
Ms Bradley had been a client under her care since 2010 and suffers from panic disorder with agoraphobia and somatic symptom disorder.Dr Vogl provided a comprehensive report dated 11 September 2019. The doctor stated:
“Lourise has a long history of Somatic Symptom Disorder (300.82/F45.1), which pre-dates the motor vehicle accident (4/12/2018), and was present when
I commenced psychological treatment in July 2010. The treatment for this has involved a cognitive behavioural approach as Lourise’s cognitions are resistant to change. In my professional opinion, Lourise’s Somatic Symptom Disorder is intractable due to her belief system. The treatment is more about maintaining her functioning.Due to the accident, however, there has been a considerable exacerbation in her anxiety and depression. First, this has resulted as the increased pain has led to her being less active and unable to manage some activities. Second, these new area of pain/physical symptoms, have become the subject of her ‘abnormal illness behaviour/belief system’ which has led to her becoming significantly more housebound and anxious about her activities. The increase in her agoraphobia and decrease in functioning has led to increases in her depression as she is no longer experiencing pleasant events and has become considerably more helpless and hopeless with regard to her future.”
Dr Vogl was asked to comment about medical cannabis “as a progression of her treatment plan”. The doctor stated:
“I do not profess to be an expert on the use of medical cannabis. It is important to rely on Dr Hugh Morgan and other health professionals to answer this question.
I do not believe I have the knowledge to provide opinion.”
The insurer referred to a report by Mr Andrew Penn dated 5 October 2019 which noted that clinical research on the use of cannabidiol (CBD) was limited and most of the user information was anecdotal user data.[8]
[8] Insurer’s submissions, 28 October 2019, paragraph [25].
A letter from Ms Bradley’s counsellor, Ms Eigenstetter, who had treated her for some time was filed in the Commission on 22 November 2021. The letter from
Ms Eigenstetter relevantly provided:“I’m concerned for her post accident health deterioration. She continues to experience daily debilitating headaches, stiff neck and shoulders and balance issues after the accident on December 18.
She can no longer drive or be driven for short periods due to flare up pain. She has tried every avenue for relief however has not found anything to give her full relief. She has tried medicinal CBD oil which gave her relief however could not continue due to cost. Physiotherapy, acupuncture, massage etc, helped slightly however long-term seemed to flare up her pain.
I have been Counselling her to help her deal with her pain as her quality of life has deteriorated significantly.
I am writing this letter to help validate her deteriorating health post accident and clarify her situation.”
RE-EXAMINATION
The Panel determined that Ms Bradley could be examined by audio visual means. That decision was made in the course of a serious pandemic where the availability and delay of in-person assessment had been greatly impacted.
Further the medical evidence shows that Ms Bradley has psychological conditions including somatoform disorder and panic disorder. It was considered that an assessment by video means would reduce the adverse impacts to Mr Bradley if she was assessed by audio-visual link.
The objectives of the Personal Injury Commission otherwise provide that it should
“resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”.[9] Consistent with these objectives and even though this is a new assessment, the Panel was of the view that it could fairy undertake the new assessment by these means.
[9] Section 3(c) of the Personal Injury Commission Act 2020
Ms Bradley was seen by audio-visual link by Medical Assessor Gorman and Medical Assessor Moloney on 9 November 2021. The Medical Assessors provided the following joint report of their examination:
“HISTORY
Pre-accident medical history and relevant personal details
Ms Lourise Bradley is a 64-year-old retired maths teacher. She lives with her daughter
She ceased work around 7-8 years ago mainly because of severe panic disorder and agoraphobia. She has been on the Disability Support Pension since then for agoraphobia and fibromyalgia.
She has had widespread musculoskeletal pain diagnosed as “Fibromyalgia”.
She has developed osteopenia/osteoporosis and had had a fractured shoulder, left patella and a stress fracture in her foot.
Her Psychiatrist, Dr Hugh Morgan also described her as having “Somatoform Disorder”. Ms Bradley reported that this was mainly because of left sided low back and leg pain.
She had seen a Rheumatologist, Dr Lou McGuigan for her musculoskeletal problems.
Dr Morgan also described her as having “Migrainous vertigo”. She did have dizziness to some extent before the accident and was using a walking frame.
She reported that her headaches before the accident mainly followed menopause and that they had resolved to a large extent before the accident.
The agoraphobia she said had improved by the time of the accident.
She had been getting help from the NDIS prior to the accident but she reported that she was reducing their involvement before the accident. She was more independent before the accident, getting herself to hydrotherapy three times per week.
History of the motor accident
On the 4 December 2018 Ms Bradley was the driver of a Ford Fiesta with her seat belt on. A car came out from the left despite not having right of way, colliding with her car on the passenger side and pushing the vehicle across the road.
Police and an Ambulance attended, and she was transported to Sutherland Hospital.
History of symptoms and treatment following the motor accident
At Sutherland Hospital she had mainly neck pain and anterior chest pain. Xrays did not reveal a sternal fracture although a hairline fracture was suspected. She is intolerant to narcotics so did not get very much pain relief. She was assessed and discharged home that day.
She subsequently saw Dr Ravidran, her GP, who referred her for physiotherapy.
One week after discharge she returned to Sutherland Hospital with haematuria. This has gradually resolved.
Her neck pain however remained and her headaches worsened. She became more dizzy and less mobile.
She was referred to Dr Matthew Gardiner (Rehabilitation Specialist). He arranged a rehabilitation admission to Calvary Hospital in Kogarah. Unfortunately, her stay was not ideal there because of hard beds and because, with her dizziness, she could not take full advantage of the hydrotherapy and other treatments. She was discharged before the completion of the program.
She saw a physiotherapist and psychologist with expertise in dizziness and vertigo.
With ongoing symptoms, her Psychiatrist Dr Hugh Morgan referred her to Dr Sanjay Nijhawan, a practitioner at the Cannabis Access Clinic in North Sydney. He prescribed a CBD oil product.
She felt that the headaches improved with the cannabis oil. She reported that she took one drop daily and the bottle lasted for 3 months. The consultations and medication cost around $1000 so she could not continue.
Recently she was reviewed by Dr McGuigan mainly for his report to get the NDIS Physiotherapy continued, particularly with a new Physiotherapist expert in “whiplash”.
Details of any relevant injuries or conditions sustained since the motor accident
There have been no new relevant injuries or conditions apart from those outlined sustained since the motor accident.
Current symptoms
She indicated her main pain now is at the base of her skull. It is there every day and radiates to her temples. She wakes with a stiff neck.
Her left shoulder pain continues. The right shoulder is also painful – the shoulders are generally painful like “the flu”.
She can get stabbing pains to her wrists and both forearms and hands can have numbness and “pins and needles”.
Her dizziness and loss of balance persist. She used to only use the walking frame out of the house – now she sometimes has to use it in the house since the accident.
She distinguishes her current symptoms from the previous “fibromyalgia” – she stated that this previously was more “low back and legs and mainly fatigue with stomach upset”. The stiff neck and shoulders are from the accident and were not the focus she said before the accident.
She mainly eats pre-prepared meals as standing cooking or at the sink is painful.
Her support workers help her shop.
She does drive but “not very far – 20 minutes”.
Current and proposed treatment
She is on the following medications:- Clonazepam 0.25mg (one quarter of a tablet) one to two daily
- Voltaren gel
- Magnesium cream
She found that paracetamol does not help and Panadeine worsens her dizziness.
She has recently seen Carolyn Cole (Physiotherapist) but hopes to continue to see a new therapist soon more expert in neck pain (Heather Mariner).
She has not seen a Psychologist or Psychiatrist for a long time she reported.
She would like to again restart the CBD oil, mainly for her headaches.
Physical Examination
The examination was conducted via video.
Ms Bradley gave a clear account of her history and had a normal affect.
She is somewhat overweight and reported that she has gained weight since the accident.
Cervical spine
She had limitation in cervical spinal movement with more discomfort on rotation to the left.
Flexion and extension were one half normal with rotation to the right and left one third normal. Lateral flexion was to one half normal to the right and left.
Upper limbs
She had limitation in shoulder range of motion, worse on the left than the right. Flexion on the right was to 150 degrees and on the left only to 120 degrees.
Abduction on the left was to 130 degrees and abduction on the right to 140 degrees.
Elbow and wrist ranges of motion were equal and normal on the right and left and normal.
She reported that numbness and “pins and needles” can affect both forearms and hands but usually only in the morning when she wakes with a stiff neck.
Determination and reasons
Causation
The CBD oil was proposed by Dr Hugh Morgan for her “anxiety, depression and pain” and to help her “physically deconditioned state”. She reports now that it is the neck pain and headaches that she would mainly like treated by the medicinal cannabis.
These symptoms were aggravated by the accident so, if medicinal cannabis was supported, it would be for symptoms from the motor accident.
Treatment will not improve recovery
Medicinal cannabis contains either CBD alone or CBD with THC. She has not requested the CBD/THC – this is appropriate as the products containing THC would be definitely more addictive and would stop her driving.
CBD alone is not analgesic and will not help her neck pain or headaches.
The CBD may be calmative and somewhat sedative but, like other calmative and hypnotic agents, tolerance will develop and she will be habituated.
A frequent side effect of medicinal cannabis is dizziness – her pre-existing dizziness could well worsen.
As well, medicinal cannabis can increase appetite which could worsen her weight gain.
The Faculty of Pain Medicine of the ANZCA in their Position Statement in 2019 did not find evidence that medicinal cannabis was an effective analgesic and did not support its use.
The Royal ANZ College of Psychiatrists in their Position Statement in 2020 also did not support the use of medicinal cannabis for psychological problems because of its lack of proven effectiveness and risk of habituation.
Treatment reasonable and necessary
For the above reasons, the treatment is not reasonable and necessary and will not improve recovery.
While Ms Bradley reports that the trial of CBD oil did help her symptoms, the dose was homeopathic and it is likely that a large placebo response occurred. In any event, continuation would have resulted in tolerance, need for increasing doses and habituation.
The Faculty of Pain Medicine of the ANZCA specifically stated in 2021 that medicinal cannabis should not be prescribed for chronic pain.
As stated above, the Royal ANZ College of Psychiatrists do not support the use of medicinal cannabis for psychiatric disorders such as anxiety, panic disorder, agrophobia and depression.
There are alternatives to the medicinal cannabis. “Fibromyalgia” (and Whiplash Associated Disorder) are best treated by a self-management and rehabilitative approach, rather than using pharmacological therapy. She is seeing a new Physiotherapist and is gradually increasing her activity. With the end of Covid-19 restrictions she will be able to continue her gradual increase in aerobic activity.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel adopts the joint report of the Medical Assessors and adds the following further Reasons.
Reasonable and necessary in the circumstances
Ms Bradley is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[10], Grove J stated:[11]
“22 I return to the expression "reasonably necessary" in s60. Dictionaries stipulate that "necessary" has relevant definition as "indispensable, requisite, needful, that cannot be done without" - (Shorter) Oxford English Dictionary, 3rd Ed and "that cannot be dispensed with" - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as "reasonably". The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word "necessary" if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of "necessary" in this context.”
[10] [2003] NSWCA 52 (Clampett)
[11] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[12]
[12] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to but not determinative of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[13] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(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 or likely to be effective.
[13] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”. In our view, treatment can clearly be “reasonable and necessary” despite the fact that the patient suffers a less than desirable outcome.
The insurer referred to clauses 4.76 - 4.77 of the Guidelines which applied a framework to insurers for approving treatment. These clauses do not define reasonable and necessary.
The Panel provided statements from two medical bodies recommending against the use of medicinal cannabis other than for the terminally ill or as part of a clinical trial. The concerns expressed by these eminent bodies arise from the lack of effectiveness of CBD because it is generally ineffective in reducing pain. Further, adverse effects of the use of CBD include habituation/addiction, sedation and dizziness.
The other concern is that the use of CBD often leads to the use of cannabis products which include THC. Products containing THC cause adverse event profiles in cannabis users including psychotic symptoms and disorders and cognitive impairment.
We have considered the further material filed by Ms Bradley which includes a report from her counsellor and Ms Bradley’s further detailed statement of her circumstances. That evidence does not address the concerns raised by medical bodies which recommend against the use of medicinal cannabis save in limited circumstances.
That material, and the supportive medical opinion does not persuade us that the proposed treatment is reasonable and necessary.
The Panel does not accept, in Ms Bradley’s circumstances that the referral for specialist review to the Cannabis Access Clinic and to fund the cost of medical cannabis is reasonable and necessary. It does not accept that the proposed treatment is appropriate and effective, and we believe it is likely to lead to harm and addiction. The treatment is otherwise not accepted by medical experts as being appropriate or likely to be effective.
For the same reasons the Panel does not accept that this treatment will improve recovery.
Conclusion
For the reason provided, the certificates issues by Medical Assessor Rosenthal are confirmed.
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