Chapman v Lidcombe Ice Pty Ltd
[2025] NSWPIC 294
•25 June 2025
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: Chapman v Lidcombe Ice Pty Ltd [2025] NSWPIC 294 APPLICANT: Michael Chapman RESPONDENT: Lidcombe Ice Pty Ltd MEMBER: John Wynyard DATE OF DECISION: 25 June 2025 CATCHWORDS:
Workers Compensation Act 1987; claim for administration of botox injections and medicinal cannabis; whether reasonably necessary; claimant had already experienced beneficial effects of both modalities; criticism by respondent that the evidence given in support by the treating specialists had merit; caution to be applied in absence of independent medico-legal opinion; in this case the botox recommendations had such support with regard to cannabis oil treatment, observations made about professionalism of expert who supplied reports on letterhead of a business, and described himself as a top industry expert; Couch v Electus Distribution Pty Ltd considered; Held – both treatments reasonably necessary; the claims were made out.
DETERMINATIONS MADE: The Commission finds:
1. The proposed treatment by way of medicinal cannabis oil is reasonably necessary.
2. The proposed treatment of Botox injections is reasonably necessary.
The Commission determines:
3. The respondent will pay:
(a) the sum of $695 in respect of past treatment of medicinal cannabis oil;
(b) the sum of $2,110 in respect of future Botox injections, and
(c) the sum of $2,040 in respect of future costs of medicinal cannabis oil at $170 every two months for two years.
STATEMENT OF REASONS
BACKGROUND
1.Michael Chapman, the applicant, brings an action against Lidcombe Ice Proprietary Limited for payment of s 60 expenses together with an order for the payment of future expenses in relation to a Botox injection and the provision of medicinal cannabis oil.
2.Dispute notices were issued and the Application to Resolve a Dispute was duly lodged.
ISSUES FOR DETERMINATION
3.The parties agree that the following issues remain in dispute:
(a) is the proposed provision of Botox injection reasonably necessary?
(b) Is the proposed provision of medicinal cannabis oil reasonably necessary?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
4.This matter was heard by Teams on 16 May 2025. The applicant was represented by Mr Josh Beran of counsel instructed by Mr Steve Walker. The respondent was represented by Ms Nicole Compton briefed by Ms Naomi Tancred. Ms Georgia O'Grady appeared for the insurer.
5.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
6.The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
Oral evidence
7.There was no application in relation to oral evidence.
FINDINGS AND REASONS
8.The facts are not in dispute and may be summarised from Mr Chapman’s statement of 19 March 2025, as follows.
9.Mr Chapman had worked as a removalist for about 27 years and been a truck driver/garbage truck driver for over 24 years. He commenced working for the respondent in or about 2021 and his duties were to deliver bags of ice to service stations, supermarkets etc, handling over 1,600 bags of ice per day.
10.On 9 July 2022 he experienced an onset of pain in his neck and burning pain down his right arm and across his chest.
11.On 4 August 2022 he consulted his general practitioner (GP) Dr Harshul Parikh who referred him for physiotherapy which initially gave Mr Chapman some temporary relief.
12.He was placed on light duties.
13.A CT scan taken at the behest of Dr Parikh resulted in Mr Chapman attending Dr Robert Kuru, neurosurgeon, on 6 September 2022.
14.A CT-guided injection of steroid followed into Mr Chapman's neck on 9 September 2022 at C5/C6. This provided some relief for only a few weeks.
15.On 21 September 2022 Mr Chapman saw Dr Nathan Hartin, orthopaedic surgeon, who recommended a multilevel posterior decompression and fusion.
16.On 26 September 2022 Mr Chapman underwent a bone scan and on 26 October 2022 Mr Chapman was referred to Dr Marc Russo, pain physician, who had treated Mr Chapman in the past. (Mr Chapman's statement at [6] set out an extensive list of Mr Chapman's prior injuries.)
17.On 21 November 2022 Dr Parikh referred Mr Chapman for psychological treatment, as he was experiencing anxiety and depression due to his injury.
18.On 3 December 2022 Mr Chapman underwent a four-level posterior fusion with Dr Hartin.
19.On 16 January 2023 Mr Chapman told Dr Hartin that the radiating pain symptoms in his neck had settled down. However on 13 February 2023, when he saw Dr Hartin again, Mr Chapman said that when the cervical collar came off he started having problems again. He was suffering neck pain and electric shock sensation in his arms. He had a significant restricted range of motion.
20.Dr Hartin said that he should settle down in the coming weeks, but Mr Chapman continued to have flare-ups.
21.He was taking Targin, Panadeine Forte and Amitriptyline/Endep.
22.On 8 March 2023, when Mr Chapman saw Dr Russo, he had marked restriction in his range of neck motion and trapezius dystonia. He was prescribed Noreflex and trigger point Lignocaine injections.
23.Mr Chapman saw Dr Hartin again on 3 April 2023 and complained of burning pain in his armpits and swelling.
24.Further CT of the neck was undertaken, which Mr Chapman was told on 1 May 2023 by Dr Hartin showed the fixation in good position.
25.The trigger point injections he had undergone with Dr Russo had helped his neck pain a lot, but he told Dr Russo on 10 May 2023 that the beneficial effect lasted only a maxim of 10 days before "I was back to square one." Mr Chapman was diagnosed with dystonic muscles and was treated with Botox injection and Clonazepam. The Botox injection gave Mr Chapman pain relief.
26.However, on 30 May 2023 the muscle spasm had turned into a hard muscle mass, Mr Chapman reported.
27.The Botox injection relief had lasted only about three weeks before “little by little" the spasm started coming back. At this stage he was continuing to take Amitriptyline/Endep, Targin and Panadeine Forte.
28.He saw Dr Russo again on 12 July 2023 when he was advised to stop taking Noreflex and Clonazepam, as they were not helping him. At Dr Russo’s suggestion Mr Chapman then tried Sodium Valproate, which he said did not help his symptoms.
29.Dr Russo told him the next step would be a thoracic spinal cord stimulator and on 18 September in 2023 a case conference was held with Dr Russo regarding a permanent implant of a cervical spinal cord stimulator.
30.Dr Russo referred Mr Chapman to Dr Mitchell Hansen, neurosurgeon, who implanted the cervical spinal cord stimulator on 13 March 2024.
31.On 3 April 2024 Dr Parikh referred Mr Chapman to Dr Dev Banerjee, sleep physician due to Mr Chapman's severe pain and associated sleep troubles and anxiety and depression.
32.Mr Chapman said:
"... I was struggling to fall asleep and stay asleep. I felt so uncomfortable at night and couldn't settle. …”
33.A sleep study was undertaken on 13 June 2024 for one night, the results of which were lodged. The study was conducted by Dr Banerjee and was extremely thorough and technical, covering four pages of measurements and graphs. There was no detailed conclusion beyond the “Clinician comments"[1] which simply stated:
"Disturbed cycles of Non REM and REM Sleep with sleep fragmentation noted.
mild REM predominant Obstructive sleep apnoea with intermittent snoring."
[1] Reply page 210.
34.There was another line dealing with technical issues, which were not explained.[2]
[2] Reply page 210.
35.In any event Dr Banerjee’s conclusion was that Mr Chapman was an excellent candidate for medicinal cannabis, which he was told on 1 July 2024.
36.In July and August 2024 Mr Chapman had trouble with the stimulator. It was reprogrammed on 21 August 2024 by Dr Russo who also substituted Subutex for the Targin medication. Subutex did not assist Mr Chapman’s pain and in fact kept putting him to sleep. He ceased the Subutex and went back to Targin, Mr Chapman said.
37.When he saw Dr Russo on 18 September 2024, he had noticed spasm to the point of dystonia in his right trapezius and was told by Dr Russo that it needed to be controlled with a Botox injection and a different approach to programming the stimulator.
38.Liability was declined on 29 October 2024, Mr Chapman said. He started seeing Dr Ajay Seekuri, who increased the dose of Targin and prescribed Gabapentin which Mr Chapman fond interfered with his stimulator, so he weaned himself off the Gabapentin.
39.Dr Russo referred Mr Chapman back to Dr Hansen because of trouble with muscle spasm, which had increased since the spinal stimulator implant.
40.He saw Dr Banerjee again on 28 January 2025. He said:[3]
"…The medical cannabis oil really helped my sleep and anxiety a lot I was able to stop taking Amitriptyline/Endep. Although it doesn't help my pain, I can sleep through the night and have no side effects."
[3] ARD page 5 at [55].
41.Mr Chapman advised that on 12 March 2025 he had further surgery to reposition the stimulator and he had a laminectomy as well.
42.At [61] of his statement Mr Chapman said:
“61. Medicinal cannabis oil was the only thing that helped my sleep troubles which were a result of my work injury. Before I started taking cannabis oil, I was sleeping about 4 hours per night. Now I fall asleep easily and sleep for about
6-8 hours. I wake up easily in the morning feeling refreshed and have no impairment or side effects when I wake up. The quality of my sleep has improved. I sometimes wake up during the night because of my pain and take extra pain medication. I am less tired during the day, but I sometimes have naps during the day as resting helps with my pain. I am very glad I have been able to stop taking Amitriptyline/Endep since it was giving me a dry mouth. I have also lost about 10kg since coming off the Amitriptyline.”
43.Reports were lodged by Dr Russo and Dr Banerjee.
Associate Professor Marc Russo
44.Dr Russo reported to Mr Chapman's solicitors on 13 January 2021.[4]. Dr Russo said:
“….Mr Chapman on examination at last review had quite florid spasm to the point of dystonia of the right trapezius and it is not only palpable but it is visible as well. That in and of itself needs control with Botox injection."
Botox injections for musculoskeletal pain and spasticity are widely accepted in the medical community as a treatment option. Use under ultrasound guidance is considered best practice to ensure precision and safety, particularly in deeper or larger muscles like the trapezius. Clinical studies have shown that Botox injections can be effective in reducing chronic muscle pain and spasticity in the short to medium term. Patients often experience relief for three - six months.”
[4] ARD page 44.
45.Dr Russo outlined the costs involved in the administration of Botox injections of $2,110.
46.Dr Russo was asked to comment on the denial of liability. He said:[5]
“As above, my opinion from the examination undertaken at Mr Chapman's last review differs significantly from that of Dr Gronow as he had an obvious visual dystonic trapezius muscle. Mr Chapman had 3 and a half weeks relief from paravertebral muscle Botox in May 2023. A single cycle of Botox providing only 3½ weeks of relief is not definitive evidence that future injections will not work for him.
Dr Gronow suggests no alternative treatment for Mr Chapman. Leaving Mr Chapman to endure chronic pain when Botox injections can provide relief is neither medically nor ethically justifiable, particularly if the treatment falls within the scope of workers' compensation.”
[5] ARD page 46.
47.On 12 July 2023 Dr Russo reported to Dr Parikh, having reviewed Mr Chapman. He said:[6]
"I saw Michael for a review. Michael just had 3 ½ weeks of relief from the Botulin toxin injection of the cervical paravertebral muscles with return of his pain subsequently so that clearly is being neurally driven. This is at a time before the spinal cord stimulator had been inserted.”
[6] Reply page 203.
48.On 18 September 2024 Dr Russo noted that Mr Chapman had a "Quite florid spasm to the point of dystonia of the right trapezius and it is not only palpable but it is visible as well. That in and of itself needs control with Botox injection and I will get that organized for him."[7]
[7] ARD page 59.
49.On 27 November 2024 Dr Russo wrote to Associate Professor Mitchell Hansen regarding the spinal stimulator. He said:[8]
"Essentially we have got half the pad electrode sitting in the epidural space and probably half is sitting outside and at the end of the day we have really exhausted all known programming options for him and not really managed to achieve much from that.
The issue from Michael's point of view is the increased muscle spasm that he continues to experience on a daily basis which he feels has been present since implant...”
[8] ARD page 49.
Dr Dev Banerjee
50.Dr Banerjee reported on 19 December 2024 to Mr Chapman's solicitors.[9]
[9] ARD page 47.
51.Dr Banerjee who wrote on behalf of “Lullaby Health” (its logo was on the letterhead) said that he was "One of the top industry experts in cannabinoid medication and treatment of chronic sleep disorders."[10]
[10] ARD page 47.
52.Dr Banerjee was asked to comment on the insurance denial of liability for the payment of cannabis oil. He said:[11]
“I was asked to provide a sleep assessment which was supported by EML and my findings were sleep disturbance and sleep deprivation and the treatment I recommended was cannabis oil as he has been on other meds for his sleep such as amitriptylline without effect. The cannabis oil has been instrumental in improving his sleep and he delighted (sic) with the response. I find it odd that I have been asked for an opinion, I provide solution to the problem and the support for this therapy was turned down after consultation with a pain specialist not a sleep specialist.
[11] ARD page 47.
53.Dr Banerjee was there referring to the sleep assessment, which it would appear that the insurer paid for, of 13 June 2024. Dr Banerjee stated that there were no alternative therapies and that the trial of medicinal cannabis had been very successful in treating his sleep. The cost he said was $170 per bottle with the use of one bottle every two months.
54.Dr Banerjee was asked about the opinion of Dr Gronow and the denial of liability. He said:[12]
“Dr Gronow states sleep is better but wakes up at 3am and sleep is interrupted then on. Certainly it seems that the pain stops him from getting back to sleep. However, Michael informs that the oil is assisting sleep and wishes to continue on the medicinal cannabis. the sleep he does get is better quality and assists his wellbeing in the day
Regarding the questions that Dr Parikh received and answered (not sure of the date) - to be asked if the referral for a sleep assessment is a step towards screening suitability for CBD, is in my opinion a leading question and makes it look that the the [sic] whole end point is going to be medicinal cannabis.…. It does not have to be medicinal cannabis. Similarly is the sleep assessment a common first step to assess patient suitability for CBD oil question is another leading question and it looks like the referral is for CBD oil as that is the end point. It is like saying is the referral to a pain specialist the first step for the suitability for a Nerve Stimulator. Clearly not. these two questions are leading Dr Parikh to answer yes because he also knows that medicinal cannabis may well be a treatment for sleep disturbance but to ask Dr Parikh these questions in a leading way is not appropriate. Either way the sleep assessment was supported and the medicinal cannabis was suggested for sleep.
[12] ARD pages 47-48.
55.In a further report dated 21 January 2025 Dr Banerjee stated:[13]
“Medicinal cannabis update
Michael has been on 0.4mls of THC 25 CBD 25mg /ml at night (called OMG GEM). He has found significant improvements in his sleep, anxiety and has weaned off his amitriptylline completely. He is delighted by this wean as he found amitriptylline for sleep cause side effects esp. the dry mouth. He states he can sleep through the night, no impairment in the morning and no side effects. He does minimal driving. His pain remains continuous and the cannabis oil has not assisted this. He remains on Targin QDS and endone. His application for medicinal cannabis was turned down on the basis that the medicinal cannabis did not assist with pain and the independent pain specialist Dr Gronow stated that he felt stoned by the oil. Certainly if taking within an hour or two there will be a feeling of impairment but by the morning impairment does not exist. Plus the medicinal cannabis was started for his sleep and not pain as his insomnia was clearly impacting on his day to day functioning. Regarding his pain, he tells me his nerve stimulator is not effective and will be seeking further advice on this matter.”
[13] ARD page 43.
Dr Parikh, GP
56. The insurer wrote to Dr Parikh at some stage seeking information regarding the application for Mr Chapman to undergo the sleep assessment. The letter said:[14]
"The case manager...is supportive of the referral and Mr Chapman's pursuit of an alternative medication outside the opioid category."
[14] ARD page 74.
57.Dr Parikh responded in handwriting to four questions. He was asked whether the referral was a step towards screening Mr Chapman's suitability for cannabis oil, to which Dr Parikh answered "Yes." He was then asked, "Was sleep assessment a common first step to assess a patient's suitability for cannabis oil?", to which Dr Parikh again replied "Yes."
58.He was asked for a medical rationale for the treatment and how it was reasonably necessary. Dr Parikh responded “severe pain, unable to sleep causing severe anxiety and depression."
59.The last question was as to the expected benefits of the treatment to which Dr Parikh said:
"1. sleep/relief of pain.
2. improve wellbeing.
3. improve anxiety/depression."
Dr P Endrey-Walder, general and trauma surgeon.
60.Dr Endrey-Walder was retained as the medical expert by Mr Chapman. He supplied three reports dated 11 July 2023, 7 November 2024 and 11 November 2024.
61.In his report of 11 July 2023,[15] Dr Endrey-Walder noted the history of Mr Chapman's treatment. He noted that the Botox injection was administered in May 2023, and that after the injection Mr Chapman had found that the muscle spasm had turned into a hard muscle mass. The injection had given relief from the recurrent spasms in the trapezius of only three weeks “before little by little the spasms came back."
[15] ARD page 29.
62.Dr Endrey-Walder said:[16]
“...I have sympathy for Dr Russo's diagnosis of significant muscle spasms primarily involving the trapezii, a degree of torticollis being the reason for the increase in symptoms.'
In other words the way he holds his neck in a forward head posture is likely to cause the chronic, daily, ongoing strain of the posterior cervical musculature and the trapezii, and this has been more or less proven by the resolution of symptoms with the multi-centric local anaesthetic injections and later by the Botox injection. The problem is that once the injections slowly lose their effect his symptoms return with a vengeance.”
[16] ARD page 34.
63.Dr Endrey-Walder noted that Mr Chapman was to see Dr Russo the next day. He said he would be surprised if Dr Russo did not recommend a larger dose of Botox to try and help Mr Chapman. He said, “such injections can be repeated regularly.”
64.He said further:[17]
“There is little doubt that the multilevel fusion had rendered most of your client's cervical spine quite rigid, but his physical therapist should make particular effort in trying to get him to overcome the forward head posture, and this would be best implemented at a time when he is relatively asymptomatic, that is, after the local anaesthetic or Botox injections. I would consider the local anaesthetic injection be simply diagnostic but the Botox should be of significant therapeutic value."
[17] ARD page 35.
65.In further report of 11 November 2024 Dr Endrey-Walder took a consistent history of Mr Chapman's further treatment.[18]
[18] ARD page 22.
66.Dr Endrey-Walder noted that Mr Chapman had derived very little benefit from the extensive operation on his cervical spine in December 2022 and that he responded only partially and for a short period of time to Botox treatment.
67.He noted that there was a plan for further and larger doses of Botox to be administered to ease the musculo-tendinous component of his ongoing neck pain, which was ongoing muscle spasm. This, Dr Endrey-Walder thought, was “undoubtedly secondary to the neck operation."
Dr David Gronow
68.The respondent relied on the opinion of Dr David Gronow, Pain Management Specialist.
69.In his report of 12 July 2023[19] Dr Gronow took an accurate history of the development of Mr Chapman's condition and its treatment. He noted the cervical spine fusion by “Dr Harper" (Hartin) two years before, taking a history that whenthe neck brace was removed Mr Chapman had the same symptoms as he had prior to the surgery, being “the same neck and arm pain and burning pain in both arms”.
[19] Reply page 251.
70.Dr Gronow noted the referral to Dr Russo and that Mr Chapman had multiple spinal injections "with no benefit.” He also noted the Botox injections about 18 months prior, which Dr Gronow noted had been "slightly helpful for only six to eight days." Dr Gronow noted that there was then a subsequent open laminectomy insertion of the spinal cord stimulator. This had not been successful either and increased Mr Chapman's symptoms when it was activated.
71.In noting Mr Chapman's medication regime Dr Gronow said:[20]
“He is taking Targin 5mg morning and night, occasionally 3 times per day. He takes 2.5mg Targin morning and night and occasionally more. He takes Endone 5mg
2-3 times per day and Panadeine Forte up to 6 per day. His (sic) states he was on Endep up to 100mg at night to help him sleep. It was now reduced to 10mg. He has recently been started on medicinal cannabis 0.25mg THC and 25mg CBD. This does not help his pain. He says it relaxes him and helps him go to sleep. He still wakes at 3 o’clock in the morning when he takes an extra Targin and coffee and a cigarette and waits for his wife to awake. He states it has a side effect of making him feel stoned. It does not help him through the day. He is no currently having any physiotherapy as it was not previously helpful.”[20] Reply page 253.
72.Dr Gronow said that there was no right trapezius muscle spasm that was identifiable to him. He said there was wasting due to the cervical spine fusion and noted that “The previous Botox injections … were not of benefit." He said that therefore the Botox injection to the right trapezius muscle was not reasonably necessary.
73.When asked about the prognosis for Mr Chapman, Dr Gronow advised it was open "extremely poor" and that "there is unlikely to be any resolution of his condition."
74.In a second report of 8 November 2024, Dr Gronow considered whether the administration of medicinal cannabis was reasonably necessary.[21]
[21] Reply page 261.
75.Dr Gronow stated:[22]
“The use of medicinal cannabis is not reasonable in the management of Mr Chapman's work-related injury. It is not improving his pain or his functional level; he reports that it is relaxing him in the evening, but his sleep is still disturbed, waking at 3:00 am when he takes extra opiate medication in the form of Targin.”
[22] Reply page 262.
SUBMISSIONS
76.Mr Beran referred to the relevant evidence confirming the unchallenged history of the injury and treatment. He submitted that Mr Chapman enjoyed the advantage that he had in fact trialed both the Botox injections and he cannabis ingestion.
77.He noted Mr Chapman's evidence that the medication he was taking had unfortunate side effects - particularly the Zymotripil which caused side effects.
78.He submitted that it was significant that there was a difficulty in the left trapezius muscle. Occasionally Mr Chapman experienced spasms and the trapezius turned into a hard muscle mass.
79.It was clear, Mr Beran said, that other forms of treatment such as the spinal cord stimulator and indeed the spinal surgery were not assisting Mr Chapman's condition. Botox was recommended as effective treatment, which Mr Chapman said had given him some relief for a short period of time. The state of the trapezius muscle was compared to a dystonic state.
80.Mr Beran noted Dr Russo's opinion that the spinal stimulator should have been removed in the hope that it would reduce the muscle spasm. This did not eventuate, and the Botox treatment was accordingly reasonably necessary.
81.Mr Beran referred to the opinions of Dr Banerjee, noting that Dr Banerjee was not a pain specialist but a sleep specialist. He submitted that the qualifications of Dr Gronow as a pain specialist were worthy of some consideration in this setting.
82.He submitted that the treatment proposed by Dr Banerjee had been proven to be successful. Mr Beran submitted that the administration of medicinal cannabis oil was not to treat Mr Chapman's pain, but rather his sleep disorder.
83.Mr Beran referred to the handwritten responses from Dr Parikh to the insurer’s enquiries. They showed that the insurer was aware that the prescription of cannabis was effective and working to improve Mr Chapman's situation.
84.In his report of 13 January 2025, Dr Russo supported the proposed treatment by Botox injection, Mr Beran said. Dr Russo had noted that there was a quite florid spasm to the point of dystonia which was very both palpable and visible and that treatment by Botox injections were widely accepted in the medical community.
85.With regard to the proposed treatment of medicinal cannabis, Mr Beran referred to the report of Dr Banerjee of 28 January 2025, and particularly the history taken that Mr Chapman was "delighted" by being weaned off Amitriptyline The further history taken that Mr Chapman could sleep through the night without any impairment in the morning and without any side effects was evidence of the benefit of this treatment, he said.
86.One of Dr Gronow's reservations, Mr Beran noted, was the history that Mr Chapman felt stoned by the oil. However, Dr Banerjee had conceded that after an hour or two there would be a feeling of impairment, Mr Beran said, but by the morning that feeling had gone. The purpose of the prescription was not to relieve pain as much as to cure Mr Chapman's insomnia, which Mr Beran submitted had clearly been impacting on Mr Chapman’s day-to-day functioning.
87.Mr Beran referred to the report of Dr Endrey-Walder, noting that it contained no detail or considered report of the benefit that might be obtained from either treatment.
88.Mr Beran then made some submissions about the opinion of Dr Gronow. Mr Beran submitted that although Dr Gronow reported that Botox injections taken some 18 months before had been only slightly helpful for six to eight days, nonetheless that evidence was illustrative that the Botox injection did provide pain benefit. Further, although Dr Gronow did not identify any right trapezius muscle spasm at the time of the consultation, he did accept that there had been three weeks benefit from its earlier use for that condition.
89.Mr Beran submitted that Dr Gronow also accepted that the treatment by medicinal cannabis had reduced Mr Chapman’s intake of Endep.
90.Mr Beran noted Dr Gronow’s opinion in November 2024 that the use of medicinal cannabis was not reasonably necessary because it was not improving Mr Chapman’s pain or his functional level, and that his sleep was still disturbed. However, Mr Beran submitted that that evidence must be seen in the light of when it was taken on 18 October 2024. Mr Beran said there was plenty of evidence since then which gave a different perspective, particularly that of Dr Banerjee.
91.Mr Beran submitted that the opinions of Dr Russo and Dr Banerjee should be preferred over that of Dr Gronow. Dr Gronow said that the Botox injections did not help but he did acknowledged that there was some benefit for a short term at least. The evidence was that Mr Chapman's sleep was now better and that he had been weaned completely off the Amitriptyline/ endep.
92.Mr Beran referred to each of the Diab indicia to be considered. He submitted that the indicia satisfied Mr Chapman’s onus to show that both treatments were reasonably necessary.
Respondent
93.Ms Compton submitted that there was no independent medical opinion about the two recommended treatment. A weakness in Mr Chapman's case was that he was relying on the opinions of the treating specialists who had, to use her words, "skin in the game."
94.She submitted the only independent witness in the case was Dr Gronow.
95.With regard to the claim for the administration of Botox Ms Compton enquired as to whether it had been shown to be appropriate, in the Diab indicia sense. Dr Russo's statement that the administration was widely accepted was unsupported to establish that indicia either, she submitted.
96.Dr Russo had said that the effect of the Botox injection would last from three to six months whereas the evidence before the Commission was that the only Botox injection that had been administered had a beneficial effect for only three weeks. She asked rhetorically why the benefit had only lasted three weeks and not for three months that Dr Russo had indicated.
97.No further Botox injections had been given, she said and Mr Chapman had undergone the cervical spine surgery of 3 December 2022. His spinal stimulator had been reprogrammed and then eventually removed so that the net result of the three treatments had been of no benefit at all.
98.It could not be said therefore that the three and a half weeks the applicant had of relief from the Botox was effective, Ms Compton said. Mr Chapman had simply been moved on to the next form of treatment and Dr Russo did not explain what was so different that it would now succeed.
99.Ms Compton said it could be concluded that Botox treatment was not accepted by medical experts. There was no explanation as to how, when relief had only been achieved for three weeks in May 2023, there would now be a three-month relief.
100.Ms Compton referred to the reports of Dr Gronow and his prognosis that there would be an extremely poor outcome from Mr Chapman's overall condition. She noted that Dr Gronow found that the spinal stimulator had not worked.
101.As to the supply of cannabis Ms Compton said there was no dispute about what improvement Mr Chapman felt, but he did not deny that the purpose for taking the medicinal cannabis to assist Mr Chapman's ability to sleep, rather than to stop pain.
102.Nonetheless, Ms Compton said, the evidence showed that even with taking cannabis, Mr Chapman's sleep was still disturbed.
103.As to Mr Chapman’s ability to wean himself off amitriptyline, Ms Compton submitted that cost was a factor. She said that $170 for two months would probably not be as expensive as other medication, although she conceded that she did not have evidence to support that statement.
104.She said another disadvantage about medicinal cannabis was that Mr Chapman would be unable to drive.
105.Ms Compton made some comments about the sleep study. Mr Chapman said that he could easily have six to eight hours of refreshed sleep with this treatment, but that was not what he had told Dr Gronow and that was why liability was declined, she said.
106.Ms Compton reiterated that Dr Gronow was the only independent medical expert.
107.She submitted that Dr Endrey-Walder gave no support for the treatment by medicinal cannabis. The only basis was that advanced by the treating doctors, she said.
108.Looking at the Diab indicia, Ms Compton submitted that it was important to note that what was being suggested was that Mr Chapman swap one form of treatment for the other. but There were side effects in in taking the cannabis too, she said. The evidence about Mr Chapman's being stoned was not insignificant.
Mr Beran in reply
109.Mr Beran referred to Dr Russo's examination in September 2024 which showed the presence of a muscle spasm which was not only palpable but visible and which he said needed control with a Botox injection.
110.As to Ms Compton's remark that the treating doctors had "skin in the game" Mr Beran simply said that they were medical practitioners and members of the relevant colleges of physicians.
111.He submitted that Dr Banerjee's comments on Dr Gronow’s opinion emphasised and articulated the benefits available.
DISCUSSION
112. The “Diab indicia” is a reference to the decision of DP Roche, as discussed below.
113. Section 60 of the Workers Compensation Act 1987 (1987 Act) provides relevantly:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(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).
…
(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
114. In Couch v Electus Distribution Pty Ltd[23] from [65] President Judge Phillips said:
[23] [2023] PICPD 8.
“65. …This area of workers compensation law is well settled. As Burke CCJ said in Rose v Health Commission (NSW):
‘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.’
66. Related to what Burke CCJ said in Rose, s 60 of the 1987 Act was extensively canvassed by Deputy President Roche in Diab[24]. The Deputy President in Diab from [76]–[91] reviewed the authorities and settled upon the approach to be taken in matters such as this. In particular of relevance to this appeal are the Deputy President’s remarks in Diab at [88] and [89]:
[24] [2014] NSWWCCPD 72
‘88. 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.
89.With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.’” (emphasis added)
115.Mr Chapman seeks a declaration firstly that the administration of Botox injections is reasonably necessary. Mr Beran submitted that Mr Chapman had an advantage in that he had already been in receipt of such treatment and declared that it was of benefit.
116.A more objective opinion was advanced by Dr Endrey-Walder in his report of 11 July 2023. He took the history of Mr Chapman’s medical issues. Chronologically they were:
· pre-injury right-sided total hip replacement with Dr Hartin;
· spinal cord stimulator introduced following the hip replacement;
· 9 July 2022 – date of onset of injury;
· GP Dr Parikh referred Mr Chapman to Physio Connex for physical therapy;
· 6 September 2022 – CT guided steroid injection along right side of the C5/6 articulation with Dr Kuru – without beneficial effect;
· 3 December 2022 – multi-level posterior decompression and fusion with Dr Hartin;
· resumed physical therapy with Physio Connex;
· increase in neck pain when cervical collar removed;
· 8 March 2023 referred to Dr Russo with ongoing pain primarily along trapezius muscle with spasm and mild torticollis;
· Targin, Panadeine Forte and Endep medication regime;
· 10 May 2023 – trigger point injections with Dr Russo effective 10 days. Botox injection given, and
· 30 May 2023 – Botox effective for three weeks for muscle spasm, but little by little they returned.
117.Dr Endrey-Walder, as noted above, advised that the cause of the spasms was “the way [Mr Chapman] holds his neck in a forward head posture.” This was:
“…likely to cause the chronic, daily, ongoing strain of the posterior cervical musculature and the trapezii, and this has been more or less proven by the resolution of symptoms with the multi-centric local anaesthetic injections and later by the Botox injection. The problem is that once the injections slowly lose their effect his symptoms return with a vengeance.”
118.Dr Endrey-Walder expected that a larger dose of Botox would be recommended by Dr Russo, and he noted that Botox injections could be repeated regularly. He said that there was little doubt that the cervical surgery had rendered most of Mr Chapman’s spine to be fairly rigid. After the administration of local anesthetic or Botox injections would be a good time to get Mr Chapman to overcome his forward head posture. Dr Endrey-Walder said, to repeat:
“… I would consider the local anaesthetic injection be simply diagnostic but the Botox should be of significant therapeutic value."
119.When Dr Endrey-Walder advised again on 7 November 2024, he noted further treatment:
· 12 July 2023 – 3.5 weeks relief following Botox injection by Dr Russo,
· continued on Endep, Targin and Panadeine Forte for pain;
· 9 August 2023 – Sodium Valproate treatment negative;
· 13 March 2024 – spinal cord stimulator implanted. Previous leads (presumably from the stimulator inserted following the right total hip replacement) removed and retrograde insertion of the new stimulator via laminectomy at C6/7;
· 1 July 2024 – Dr Banerjee (Benarjee) sleep study and recommendation for medicinal cannabis;
· 14 August 2024 – subutex started under Dr Russo. Ceased after two weeks due to side effect (falling asleep) and pain not ceasing;
· 18 September 2024 – Dr Russo found “palpable and visible right trapezius spasm. Botox recommended”;
· 11 July 2024 – Mr Chapman advises Dr Endrey-Walder that none of the spinal stimulator programming had worked, and
· medication regime that day: Endone, Gabapentin, Panadeine Forte at night, Somac, Targin.
120.Dr Endrey-Walder noted Mr Chapman’s poke neck stance throughout the consultation.
121.Ms Compton submitted that the force of Mr Chapman’s medical case was compromised because the medical experts recommending the Botox treatment (Dr Russo) and the provision of medicinal cannabis (Dr Banerjee) had “skin in the game.” Whilst Mr Beran responded that these experts were fellows of their appropriate Royal Colleges, Ms Compton’s view is not without some merit, and caution should certainly be used when assessing such self-interested opinions. This is so particularly with regard to the provision of medicinal cannabis, which is a comparatively recent addition to the options available to health practitioners for treatment.
122.It does not engender any confidence in the professionalism of a medical expert who writes reports on the letterhead of a business, and who says that he is a “top industry expert.”
123.I have accordingly referred to Dr Endrey-Walder’s reports for some corroboration of the opinions of Dr Russo. Mr Beran eschewed reliance on Dr Endrey- Walder’s reports, as the doctor did not in terms make any recommendations, but there is sufficient opinion therein to engender some confidence as to whether the treatment might be reasonably necessary.
124.In the case of the claim for Botox injections, Mr Chapman stated that his experience on 10 May 2023 was that he obtained relief of both pain and spasming.[25] He acknowledged that the muscle spasm in his neck had been caused by the neck surgery, which in turn was a form of treatment for his condition, albeit unsuccessful. Dr Endrey- Walder was aware that the effect of the Botox injections had worn off after about three weeks, but he stated that, whilst trigger point injections were diagnostic, the Botox injections were “therapeutic.”
[25] ARD page 8 at [58].
125.Dr Russo unsurprisingly endorsed this form of treatment, as he had administered it. However, his opinion was consistent with that of Dr Endrey-Walder, in that he observed the quite florid spasm in his report of 13 January 2025, and noted that “in and of itself [the spasm] needs control with Botox injection.”
126.Dr Gronow in his report of 8 October 2024 took a consistent history that the Botox injections Mr Chapman had received were “slightly helpful” but had only lasted six to eight days. On examination, he could not identify any right trapezius muscle spasm, although he did note wasting. In his opinion, Dr Gronow said that the previous Botox injections “were not benefit” and therefore the proposed Botox treatment was not reasonably necessary.
127.In a report to Dr Parikh of 12 July 2023, Dr Russo reported that the Botox (Botulinum toxin) injection had given Mr Chapman 3½ weeks of relief,[26] which result he repeated in his report of 13 January 2025.
[26] Reply page 203.
128.Ms Compton submitted that the evidence that the Botox injections of 10 May 2023 had only given pain relief for three weeks did not satisfy the Diab indicium that the proposed treatment be effective. Although Dr Russo had advised that the relief given by future Botox injections last three months, the actual experience of them did not engender confidence that such a prognosis was accurate.
129.However, it has not been suggested that the proposed Botox treatment would give continual relief. The evidence demonstrates that the one treatment Mr Chapman experienced on 10 May 2023 gave him some relief. I think it more likely that Mr Chapman did experience about three weeks pain relief, as he described in his statement and was confirmed by Dr Russo. Dr Gronow’s history of only eight days or so relief I think reflected his pessimistic view of Mr Chapman’s condition, from which Dr Gronow advised that there was unlikely to be any recovery. Dr Gronow’s history did accept that there had been some benefit (“slightly helpful”) in any event. It becomes a question of the evaluation of the benefit of the proposed treatment in the particular facts of the case.
130.In that regard, I prefer the opinion of Dr Endrey-Walder, that the administration of Botox injections has therapeutic value. I also accept the opinion of Dr Russo that Botox injections for musculoskeletal pain and spasticity is widely accepted in the medical community as a treatment option.
131.As to the prescription of medicinal cannabis, there was no opinion given by Dr Endrey-Walder. However, there is no reason to doubt Mr Chapman’s evidence that this treatment helped his sleep and anxiety. A significant benefit is that as of 28 January 2025 Mr Chapman was able to stop taking amitriptyline/Endep as a result of being prescribed medicinal cannabis oil.
132.Ms Compton submitted that whilst there is no dispute that the treatment improved Mr Chapman’s subjective symptoms, it had not been shown to be of any objective benefit, particularly of assisting pain relief. She relied on the history taken by Dr Gronow in his report of 8 October 2024 who noted that although Mr Chapman said the cannabis oil relaxed him and helped him to go to sleep, he still awoke at 3.00am, took an extra Targin, had a coffee and a cigarette, and waited for his wife to awake.
133.Whilst I accept that history may have been given to Dr Gronow about one episode, I do not accept the submission that this was a regular event, which I find to be improbable. Indeed, Mr Chapman said that occasionally he wakes up during the night due to his pain. Dr Gronow also took a history that there was a side-effect that made Mr Chapman feel “stoned.” I accept Dr Banerjee’s explanation, that such a side-effect was short lived, and there was no residual effect by the morning. Ms Compton’s submission that this treatment was not reasonably necessary because it was designed to assist Mr Chapman’s sleep rather than his pain, I find to be somewhat circular. The insomnia, which I accept is part of Mr Chapman’s symptom complex, would impact on his day-to-day functioning, as explained by Dr Banerjee.
134.In the circumstances of Mr Chapman’s case, I am satisfied that the administration of the cannabis oil is reasonably necessary. Mr Chapman has actively pursued as many avenues of rehabilitation as were suggested to him. He has tried medication (and I accept that he still needs medication for his pain), he has undergone extensive surgery which unfortunately has had the result of the problem with his right trapezius muscle which has in turn been exacerbated by the poke neck attitude he has subsequently adopted. Cannabis oil is effective in improving his global sense of well-being, which in turn can only assist in his ability to cope with his condition. The insertion of spinal stimulators has not been successful, and he has had to undergo surgical procedures to both install them, reprogram them, and eventually remove at least one of them.
135. Accordingly, I make the above orders.
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