Couch v Electus Distribution Pty Limited

[2023] NSWPICPD 8

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Couch v Electus Distribution Pty Limited [2023] NSWPICPD 8

APPELLANT:

Christopher Paul Couch

RESPONDENT:

Electus Distribution Pty Limited

INSURER:

AAI Limited t/as GIO

FILE NUMBER:

A1-W5611/21

PRESIDENTIAL MEMBER:

President Judge Phillips

DATE OF APPEAL DECISION:

10 February 2023

ORDERS MADE ON APPEAL:

1.    The Member’s Certificate of Determination dated 11 April 2022 is revoked.

2.    The matter is remitted for redetermination by another member.

CATCHWORDS:

WORKERS COMPENSATION – section 60 of the Workers Compensation Act 1987 – whether treatment by way of medicinal cannabis is reasonably necessary – cost of treatment considered – criteria in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 and Diab v NRMA Ltd [2014] NSWWCCPD 72 considered and applied – Diab criteria is not exhaustive – whether treatment is reasonably necessary depends on the facts of each case.

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr D Epstein, counsel

Wilsons Solicitors

Respondent:

Ms N Compton, counsel

Hicksons Lawyers

DECISION UNDER APPEAL

MEMBER:

Mr J Wynyard

DATE OF Member’s DECISION:

11 April 2022

INTRODUCTION AND BACKGROUND

1. Mr Christopher Couch (the appellant) was employed by Electus Distribution Pty Limited (the respondent). On 5 January 2016, the appellant was required to lift a heavy battery in the course of his employment and suffered a significant injury to multiple levels of his lumbar spine.

2. The respondent has accepted the appellant’s lumbar spine injury.

3. These proceedings involved a claim brought by the appellant pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) with respect to proposed treatment relating to the provision to the appellant of medicinal cannabis and the medical monitoring of that treatment. The respondent, by notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 9 June 2021, disputed this claim on the ground that it was not reasonably necessary as a result of his injury, pursuant to s 60 of the 1987 Act.[1] The respondent relied on various medical opinions, which queried the effectiveness of the treatment, its long term use, and recommended the appellant withdraw from any continued usage.

   [1] Application to Resolve a Dispute (ARD), pp 8–12.

4. The appellant’s Application to Resolve a Dispute was filed in the Personal Injury Commission (Commission) and was heard by the Member by video on 15 February 2022. As the matter did not complete on that date, both parties supplemented their oral submissions with written submissions. The Member delivered his written Statement of Reasons on 11 April 2022,[2] finding in favour of the respondent. The Member held that the claimed treatment was not reasonably necessary, primarily on the basis of its cost, being part of the criteria set out in Diab v NRMA Ltd[3] as to whether treatment is reasonably necessary. I will detail the Member’s reasoning later in this decision. It is against this decision that the appellant appeals in these proceedings.

   [2] Couch v Electus Distribution Pty…