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

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.
The respondent has accepted the appellant’s lumbar spine injury.
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.
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 Limited [2022] NSWPIC 153 (reasons).
[3] [2014] NSWWCCPD 72 (Diab).

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

The respondent has challenged whether this matter has reached the relevant threshold for the purposes of s 352(3) of the 1998 Act.[4] The respondent in summary says that as there is no precise plan for the proposed duration of the proposed treatment, it is not open for the Commission to assume that the monetary threshold of $5,000 has been met simply by utilising the term “monthly” in the ARD. The ARD claims a monthly amount of $464.00, being $384.00 for medicinal cannabis and $80.00 for monitoring appointments. The respondent asserts that the treatment either meets the threshold or it does not.[5]
[4] Respondent’s submissions, [12]–[19].
[5] Respondent’s submissions, [16].
The appellant responds by stating that the amounts claimed per month are based upon the opinions of a pharmacist, Ms Anna Kaluzny,[6] and of Dr Hiley.[7] Further, the respondent points to the report of Dr Nayak[8] who states that the duration of treatment is “ongoing” and as a result submits that the threshold has been met.
[6] ARD, p 90.
[7] ARD, p 62.
[8] ARD, p 69.
Finally, I would remark that there was evidence before the Member that the cost of the medication per month would be close to $5,000 per month (as calculated by the respondent’s counsel). The Member referred to this evidence at reasons [172] and [222].

Consideration

Section 352(3) of the 1998 Act provides as follows:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
In Olympic Fencing (NSW) Pty Limited v Crossley[9] Acting Deputy President Snell (as he then was) said as follows:
“A general order for section 60 expenses will never be for a specific sum. It has been the practice, in other Presidential decisions, to enquire into the sums of which recovery will be sought, pursuant to such general order, for the purpose of considering whether section 352(2)(a) is satisfied. Thus, notwithstanding the non-specific nature of such a general order, where the material before the Presidential member indicated the expenses involved were less than $5,000, leave was refused: Georgandas v Qantas Flight Catering [2003] NSWWCCPD 20, Miller v Anglican Retirement Village [2003] NSWWCCPD 33. Where the material indicated expenses recoverable pursuant to the general order would exceed $5,000, section 352(2)(a) was satisfied, and leave was granted: Lilly v Tomago Aluminium Company Pty Limited [2004] NSWWCCPD 62. I propose adopting the same practice.”[10]
[9] [2007] NSWWCCPD 121 (Crossley).
[10] Crossley, [24].
This is a matter involving a claim for s 60 expenses on an ongoing basis. Consequently, the matter for consideration is whether or not the issue on the appeal is at least $5,000. This matter is not a case where a general order is sought for payment of s 60 expenses, rather the appellant is seeking the payment of specific sums with respect to particular medical treatment, namely the provision of medicinal cannabis. The duration of the claim for medicinal cannabis has not been specified, inter alia because the appellant’s back pain has become chronic.
The medical evidence reveals that the appellant has had a long history of treatment since his injury on 5 January 2016. The Member set out at length in his decision the medication regime recommended at various times which the Member found has not been effective.[11] Medical opinion before the Member was to the effect that the use of medicinal cannabis is “palliation of symptoms”.[12] The evidence that the appellant has pointed to is that the doctors have recommended monthly treatments. The respondent states that it would take at least 10 months of this treatment, in accordance with that claimed in the ARD, for the threshold to be met or exceeded. This submission might have some force, but for the fact that there is no disputation with respect to the appellant’s injury or his pain (which admittedly does vary in intensity). There is a dispute about the efficacy of the proposed treatment, but that is a matter which has been decided in favour of the appellant by the Member and is not challenged on this appeal.
[11] Reasons, [203]–[208].
[12] Report of Dr Geoffrey Needham, 9 March 2020, Reply to ARD (reply), p 60.
Given the history of the appellant’s treatment since the date of his injury in 2016, and considering the evidence referred to by the appellant in support of his argument that the threshold has been exceeded, I am, consistent with the remarks I have cited in Crossley (above), comfortably satisfied that the amount in dispute in this matter exceeds the $5,000 threshold.
Additionally, before the Member was a quote from a pharmacist, Mr Pravesh Narayan, who calculated total cost of the treatment per month would be $4,681.09 meaning that if that treatment was conducted for more than one month, the threshold would easily be met and exceeded. I would remark that part of the respondent’s defence to the claim was that this latter claim based upon Mr Narayan’s calculation was considered to be unreasonable for the purposes of the Member’s consideration of the s 60 expense claim.
Having regard to the evidence on this issue which was before the Member, I am satisfied that the threshold has been established. I reject the respondent’s submission that the jurisdictional threshold has not been met.
As a consequence, I will proceed to decide the appeal.

EVIDENCE

This appeal takes place within a relatively narrow compass. Whilst the appellant was not successful before the Member, that decision related to the Member’s finding that the cost of the proposed treatment would not be reasonable. The other considerations with respect to the proposed treatment were found to be satisfied based upon the Member’s construction of the relevant criteria identified in Diab. As a consequence, my review of the evidence will concentrate on matters relevant to the cost of the proposed treatment. This will necessarily involve a consideration of the claim pleaded by the appellant, the evidence and the medical opinion as to the treatment recommended, its frequency and duration.
In the appellant’s statement of 30 September 2021,[13] he provides a long history of treatment by way of injections and pain medication to treat his back pain. He says he was first prescribed with THC oil at the Cannabis Access Clinics (CA Clinics) in 2018, which he used twice daily until July 2020, when he moved to a “flower-based” vaporised cannabis and a CBD wafer due to a reaction of hyperemesis from the oil. The appellant does not describe the frequency at which he took this but describes less pain during the treatment. He says his pain has increased dramatically since its cessation.
[13] ARD, p 2.
The appellant has come under the care of several practitioners specialising in medicinal cannabis treatment at CA Clinics since 2018, including Dr Davina Hiley, Dr Samuel Murray, Dr Arun Nayak and Dr Crosby Rechtin. Overall, the evidence of CA Clinics indicates ongoing improvement to the appellant’s pain levels and quality of life with the use of medicinal cannabis. The practitioners appeared to work closely with the appellant to monitor the efficacy of the treatment and any side effects, adjusting as required.
Initially, the appellant appears to have been treated through use of CBD oil, consistent with his statement and evidenced by several exemptions issued by the Australian Government Department of Health, Therapeutic Goods Administration in 2018.[14] A report by Dr Hiley dated 5 September 2018 noted that the appellant was taking these “long term medications in the foreseeable future … for symptomatic relief”.[15]
[14] ARD, pp 71–73.
[15] ARD, p 60.
In a report dated 27 May 2020, Dr Hiley advised that the appellant had been approved by the TGA for a product named “Althea Henik” in addition to CBD oil for “chronic pain”. The appellant had been “largely responding well to the treatment”, evidenced by “pain scores” during regular monitoring appointments.[16]
[16] ARD, p 61.
Dr Hiley recounted the extensive pain medication the appellant had trialled, including Endone, Palexia, Celebrex, Voltaren, Norspan, Norflex, Lyrica and Tramadol, which carried with it potential side effects and dependence. Following the commencement of a trial of cannabinoid medication at the CA Clinics in 2019, the appellant’s pain scores reduced from 8/10 to 6/10, presenting a “good result after a few months of treatment”. As at 15 April 2020, the appellant reported “significantly reduced pain score of 4/10” which is a “a 50% pain reduction overall on the scale and is a significant improvement for [the appellant], compared to when they first started.” The appellant would however “require a reduced dose of THC due to potential interactions/adverse effects” of hyperemesis.[17] Based on a report in July 2020, it appears the appellant ceased CBD oil treatment for some months whilst under the care of Dr Crosby Rechtin and instead resumed a flower based product and wafer which proved effective.[18]
[17] ARD, p 62.
[18] ARD, p 64.
Dr Hiley opined that the appellant’s medicinal cannabis treatment had been overall successful, noting the reduction of opioid and pain killer medications, significant improvement in his overall pain scores and quality of life, and reduction in overall THC to the use of a cannabinoid vape only on a “PRN basis” (as needs basis). Given this “significant improvement”, Dr Hiley expressed “support for the continued funding” in order to “maintain their current level of wellbeing, the ceasing of which risks [the appellant’s] pain and quality of life to deteriorate to pre-treatment levels.”[19] In turning to cost for the ongoing treatment, Dr Hiley advised that monitoring appointments would be $80 and approximately $300 for a 25ml bottle (plus shipping) depending on pharmaceutical price/product changes and required dosage.[20]
[19] ARD, p 62.
[20] ARD, p 62.
On 16 December 2020, Dr Hiley changed the appellant’s prescription of “Solace Cannabis High THC & Low CBD flower buds” to be dispensed at an interval of 10 days instead of 15 due to a change in dosage. Dr Hiley stated that the change in repeat intervals was based on clinical need and dosage remained under the TGA approved maximum.[21] I note there is also reference in this report to medication of “Australian Natural Rocky”. Whilst unclear, it appears that the medications referred to in this report may differ to the TGA approved “Athena Helnik” referred to by Dr Hiley above on 27 May 2020. The cost and interval of these particular products are not specified in this report.
[21] ARD, p 66.
On 17 February 2021, Dr Hiley responded to questions regarding the appellant’s treatment.[22] When asked to justify the benefits of ongoing use of medicinal cannabis, Dr Hiley responded that “[the appellant] is reviewed for response at every consultation. He has reported that the response to the medicinal cannabis has been good since switching from oil based treatment to a flower based treatment.” Dr Hiley supported this with articles evidencing medicinal cannabis for chronic non-cancer pain.
[22] ARD, pp 67–68.
Dr Hiley was alerted to the treatment recommended by pain specialist, Dr Nazha,[23] of compound analgesic cream, ketamine infusion, buprenorphine and a spinal stimulator and asked to comment on any adverse interaction with medicinal cannabis use. Dr Hiley stated that a precaution may exist if the appellant was taking CBD, which he was not, only THC flowers. Dr Hiley confirmed that the spinal stimulator and topical treatments would not pose an issue.
[23] Dr Nazha’s report is found in reply, p 41.
Dr Hiley clarified the appellant’s current prescriptions of “Australian Natural Rocky” flower buds (THC) and “Australian Natural Solace” dried herb (THC), both of which were out of stock at the time of writing and thus required a replacement of “MedReleaf Luminarium Dried” and “Bedrocan”. I note again it is unclear whether these medications referred to are in addition to those quantified by Dr Hiley in her report of 27 May 2020.
The appellant was also treated by Dr Arun Nayak of CA Clinics. In a response to a questionnaire dated 20 October 2021, Dr Nayak confirmed the safety and long term effectiveness of the cannabis flower and wafer prescribed to the appellant, and provided an opinion as to cost, frequency and duration of the treatment. The flower was administered through a vaporising device and inhaled through the lungs, and a wafer absorbed through the sublingual mucousa.[24] As to cost, Dr Nayak reported that consultations at the CA Clinics were $65 every 3-6 months, or shorter if needed. Dr Nayak estimated the price for the “ANTG Rocky” would be $215 for a 10g container, pending dispensary prices, and that the “the duration of treatment at this stage is ongoing”. The doctor referred to medicinal cannabis as a symptomatic treatment, not curative. If the appellant was to stop the treatment, the appellant’s symptoms would “return to baseline levels”.[25]
[24] ARD, p 69.
[25] ARD, p 70.
It appears that in conjunction with medicinal cannabis treatment, the appellant was treated by several pain specialists, Dr Russo,[26] Dr Nazha[27] and Dr Ho,[28] all of whom collectively recommended various pain management methods including medication, injections, radio-frequency and a spinal stimulator. I note that in a report of 31 March 2020, Dr Ho acknowledged the array of treatment the appellant had undergone and supported “his current cannabis oil treatment given the efficacy and safety”.[29]
[26] ARD, pp 23–31.
[27] ARD, p 60.
[28] ARD, pp 77–84.
[29] ARD, p 78.
Dr Graham Vickery, psychiatrist, independently examined the appellant on behalf of the respondent in 2017 and again in 2020 in respect of the appellant’s psychological condition as associated with his work injuries. In the latter report of 10 February 2020, Dr Vickery opined that although there had been a recovery of his psychiatric condition, it was unclear if this was due entirely, or at all, to the medical cannabis therapy. Dr Vickery further reported that “the short-term use of medical cannabis has been beneficial however the long-term prognosis is questionable with relation to functional gains”, noting the conflicting research regarding medical cannabis as a treatment. Given his opinion as to the appellant’s recovery, the doctor recommended a withdrawal from medicinal cannabis treatment, and did not recommend any alternative treatment.[30]
[30] Reply, pp 57.
Dr Geoffrey Needham, consultant in rehabilitation and pain medicine, was asked by the respondent to conduct a file review and provide an opinion on the appellant’s diagnosis, the appellant’s use of medicinal cannabis and alternative treatment. Dr Needham states that he was provided with Dr Vickery’s report of 10 February 2020 and “also background information compiled by GIO”. In the report of 9 March 2020, Dr Needham concurred that the appellant had persistent lumbar spine pain following a heavy lifting injury on 5 May 2016.[31] Dr Needham reflected on the multiple medications the appellant had taken, including Lyrica, Endone and medicinal cannabis.
[31] Reply, p 59.
The doctor’s opinion was that Lyrica was of minimal benefit and can cause significant adverse psychological effects, and also did not recommend the long term use of Endone due to tolerance, dependence and reduced motivation. On medicinal cannabis, Dr Needham opined that there was no scientific evidence that medicinal cannabis is effective for physical reconditioning and rehabilitation, however, noted that it may be of significant benefit where “recovery is not anticipated and the aim of treatment is palliation of symptoms”. Dr Needham stated it would be “beholden on the prescriber of [the appellant’s] various medications to provide evidence that any of the above treatments are of benefit”.[32] In terms of alternative treatment, Dr Needham recommended sustained physical reconditioning with a physiotherapist or exercise physiologist; a gradual reduction of the appellant’s medications (including admission as an inpatient) and continued psychological management to improve pain coping and self-efficacy.
[32] Reply, p 60.

Shortly after, the respondent qualified a pharmacist, Mr Luke McGrath, to conduct a pharmacy review and to contact the appellant’s treaters. In an initial report of 26 June 2020,[33] Mr McGrath says he was provided with a summary of the appellant’s medication profile, and noted that the only active medications were Endone, Somac and medicinal cannabis. After discussions with the appellant’s general practitioner, Mr McGrath provided his opinion on whether these medications were reasonably necessary. He considered that medicinal cannabis was helpful in that it allowed the appellant to stop using other pain related medications, although he did not recommend its ongoing use. Mr McGrath opined that Endone was not reasonably necessary as it should not be used with medicinal cannabis or long term. Mr McGrath reported that cannabis was a newly available product through a Special Access Scheme (SAS) and used to help manage conditions such as nausea, insomnia, epilepsy and chronic pain, with ongoing studies which established its efficacy in treating these conditions. Mr McGrath referred to alternative options to medicinal cannabis, including non-opioid analgesics such as paracetamol, but acknowledged that the appellant had trialled Lyrica, Norflex, Palexia and Endone without success and that the use of medicinal cannabis had allowed him to stop using opioid therapies. This was a positive step.
[33] Reply, p 67.
Notwithstanding, Mr McGrath reported that further research was needed to establish the safety and efficacy of medicinal cannabis, as highlighted by the RACGP, and particularly long term effects. As such he could not recommend a duration for the treatment in the appellant’s case. Whilst he considered it assisted to an extent, he concluded that the continued use of medicinal cannabis was not appropriate and the appellant should begin reducing his dosage. Mr McGrath agreed with the opinion of Dr Needham that the appellant should focus on physical reconditioning and psychological support and reduce his reliance on medications.
In another report dated 8 October 2020,[34] Mr McGrath affirms his prior opinion that the appellant should discontinue the use of medicinal cannabis. He reports that he has had further discussions with the appellant’s treating doctors, during the period in which the appellant ceased taking CBD oil due to adverse side effects of hyperemesis and was due to resume the flower and wafer. The appellant was back on opioids (including Panadeine extra and Oxycontin). Whilst Mr McGrath’s initial report cautioned against the continued use of opioids, such as Endone, he concludes in this report that the appellant should instead continue these “low dose opioids” if they provide to be an effective alternative to medicinal cannabis.
[34] Reply, p 80.
Dr Needham provided a supplementary report on 24 March 2021. In this report, Dr Needham refers to his “previously expressed opinion” that medicinal cannabis was unlikely to be helpful and could potentially cause adverse effects and lead to dependence. He states he would not recommend it for young persons, noting the treatment remains contentious. The doctor provides an opinion that medicinal cannabis is not “reasonable or effective" and reiterates his prior opinion of reducing prescribed medications together with conservative pain management treatments. He recommends that the appellant should progressively reduce the use of medicinal cannabis over a period of 6 weeks, rather than abruptly as this would likely lead to increased paid and emotional distress. Dr Needham did not believe there was any evidence that medicinal cannabis had been effective in reducing the appellant’s pain or improving function, rather that the situation was clouded by the appellant’s use of prescription medication and alcohol.[35]
[35] Reply, p 64.
Ms Anna Kaluzny, general practice pharmacist, prepared an independent report for the appellant’s solicitors dated 17 September 2021 regarding the reasonable necessity of medicinal cannabis. Ms Kaluzny was asked to consider the s 60 criteria outlined by Diab, including appropriateness, the availability of alternatives, its cost and effectiveness, and its acceptance by medical experts.
In considering the appropriateness of the treatment, Ms Kaluzny stated that “[the appellant] has been prescribed an extensive number of medications over the past several years to manage chronic pain, including opioids, antiepileptic medication and antispasmodics, however his chronic pain remains refractory to these treatments.” Given this, Ms Kaluzny opined that “it is reasonable to consider medicinal cannabis as a treatment option for [the appellant]. Review of [the appellant ’s] file shows successful treatment of chronic pain with medicinal cannabis products thus far.”[36]
[36] ARD, pp 89–90.
In considering the availability of alternative treatments and prolonged effectiveness, Ms Kaluzny observed that a “review of [the appellant’s] history shows an extensive number of medications have been tried, including opioid medications Endone, Palexia, Norspan and Tramadol, anti-inflammatory medications Voltaren and Celebrex, antispasmoic Norflex and the antiepileptic medication Lyrica”. She opined that the medications have a limited role in treatment of chronic pain, requiring close monitoring for efficacy and tolerability given common adverse effects including dizziness, cognitive impairment, drowsiness, dependence and significant withdrawal symptoms. According to Ms Kaluzny, opioids and Lyrica do not achieve clinically significant improvement in pain or function, or useful pain relief, rather posing a risk of dependence and withdrawal symptoms. Ms Kaluzny concluded that the appellant “appears to have exhausted all conservative medication treatment options for chronic pain.”[37]
[37] ARD, p 90.
On cost, Ms Kaluzny opined that “the average monthly cost of medicinal cannabis in Australia is $384” although did not indicate the type of medicinal cannabis.[38]
[38] ARD, p 90.
As to actual or potential effectiveness of medicinal cannabis, Ms Kaluzny described in technical terms its analgesic effect through a range of neural mechanisms, including activating inhibitory pain pathways, reducing pain associated with neural inflammation, acting on multiple receptors in the central nervous system and reducing pain caused by muscle spasms. Ms Kaluzny reported a significant reduction in pain observed in clinical trials, displaying its effectiveness as a treatment for pain.[39]
[39] ARD, p 90–91.
In considering the acceptance of medicinal cannabis by medical experts, Ms Kaluzny considered that medicinal cannabis was accepted as a treatment option for chronic pain by prescribers in Australia through the TGA, by way of several schemes (including the SAS) and clinical trials. Ms Kaluzny referred to these schemes prescribing medicinal cannabis for chronic pain as a demonstration of it being extensively sought after and as gaining wider acceptance, with approvals for medicinal cannabis products nearly doubling in the last 12 months.[40]
[40] ARD, p 91.
Ms Kaluzny considered Dr Needham’s opinion, and noted that treatment should be continued where there was evidence of benefit, as in the appellant’s case. A review of his file had shown that the use of medicinal cannabis was successful given the significant improvement in pain and quality of life, allowing him to taper off other medications, including opioids. Whilst Ms Kaluzny noted the adverse effects of medicinal cannabis, including potential withdrawal, she noted that the effects could be minimised with close monitoring and adjusting dosages.
Ms Kaluzny confirmed that the appellant would benefit with continuing treatment as part of his overall pain management strategy. While there were no guidelines as to the duration of use of medicinal cannabis, regular assessments as to responsiveness, effectiveness and adverse effects should occur one month after initiation and then periodically. Ms Kaluzny concluded that treatment should continue unless there is no obvious clinical benefit or due to adverse effects.[41]
[41] ARD, pp 91–92.
An Application to Admit Late Documents served by the appellant contains what appear to be handwritten prescriptions and a letter dated 14 February 2022 from Pravesh Narayan, a pharmacist/retail manager of Good Price Pharmacy in McGraths Hill.^[42] It reports that the appellant requires the following medication for “ongoing treatment”:
“Xativa CBD Wafer – 60 tabs - 2 week interval - $235.62
Solace 30 gm – 10 day interval - $739.95
Rocky x 3bottles – 14 day interval - $995”
[42] Appellant’s Application to Admit Late Documents, p 8.
The respondent also relied on a late document served prior to the Arbitration, being the report of Dr Jane Standen dated 27 September 2021. It is not part of an Application to Admit Late Documents but was accepted into evidence. In this report, the doctor states that “[the appellant] describes constant daily pain. He states at present he has no medications available to him for better management of pain flares. [The appellant] states previous provision of medicinal cannabis, which provided significant benefit is no longer approved through WorkCover.” Dr Standen concludes with a recommended treatment plan involving psychological counselling, radiology, trial neuromodulation and short acting opioid therapy.

THE MEMBER’S REASONS

The Member conducted a comprehensive review of the medical evidence referred to above, which is summarised in detail in his reasons at [24]–[129]. In addition to the evidence specific to the appropriateness of medicinal cannabis treatment, the Member summarised various hospital visits and the evidence of the appellant’s early treaters, including the treatment by his neurosurgeons Dr Al Khawaja (who administered lumbar injections), and the suggestion of surgery from Dr Sergides (which did not come to fruition).[43] The Member referred to the significant pain management treatment provided by his pain specialists, Dr Mark Russo, Dr Alan Nazha, and Dr Tim Ho, and commented that these specialists were of the view appellant was “catastrophising significantly”.[44] The Member referred to the reports of psychiatrists who treated the appellant, including Dr Naaz who thought the appellant was “self-medicating” with medicinal cannabis and thus referred him to a cannabis clinic in 2018.[45] The Member also considered the report of Dr Standen dated 27 September 2021 at reasons [94]–[96] and heard submissions from the parties regarding the absence of a recommendation from Dr Standen for medicinal cannabis as future treatment.
[43] Reasons, [28]–[31].
[44] Reasons, [189].
[45] ARD, pp 55–58.
Having completed his detailed review of the evidence, the Member then summarised the parties’ submissions. In particular, he noted the following submissions which were advanced on behalf of the respondent employer:
“Ms Compton repeated her submission that there is not sufficient clarity in the proposed treatment plan regarding the prescription of medicinal cannabis. She repeated that in any event medicinal cannabis was not part of the latest treatment plan proposed by Dr Standen, although she acknowledged Dr Standen’s observation that the provision of medicinal cannabis had provided benefit to [the appellant].”[46]
“Ms Compton also repeated that the [appellant] had not satisfactorily explained the cost involved in the prescription of medicinal cannabis. She referred to the quote from pharmacist, Mr Pravesh Narayan, dated 14 February 2022 and calculated that the total cost per month would be about $4,681.09.
Ms Compton contrasted that with the claim particularised in the ARD which was for $384 per month together with the monthly monitoring appointment. Ms Compton argued that the high monthly cost of this treatment for an unknown period was prohibitive and, I assume, unreasonable – particularly as this open-ended.”[47]
“With regard to the question of effectiveness, Ms Compton submitted that I would accept the opinions of Dr Needham and Dr Vickery. Ms Compton reproduced portions of both medical practitioners reports and submitted that Dr Needham’s opinion should be accepted in full. Ms Compton submitted that there was ‘minimal persuasive evidence’ of the long-term effectiveness of treatment by medicinal cannabis, other than a reduction in pain level.”[48]
[46] Reasons, [170].
[47] Reasons, [172]–[173].
[48] Reasons, [176].
It is evident from these submissions that whilst the respondent opposed this claim in its entirety, a significant complaint related to how the claim for medicinal cannabis had been particularised. The respondent pointed to the wide disparity between the amount claimed in the ARD and the quote in the evidence from the pharmacist, Mr Pravesh Narayan.[49] In terms of the appellant’s submissions, the Member noted the history of treatment and the evidence from the appellant that following the administration of medicinal cannabis, he experienced significant pain relief.[50]
[49] See reasons, [172]–[173].
[50] Reasons, [143], [151].
The Member then proceeded to set out the principles to be applied in a claim under s 60 of the 1987 Act,[51] noting in reference to Diab:
“The Deputy President also observed, and I agree, that ‘each case will depend on its facts’.”[52]
[51] Reasons, [185]–[187].
[52] Reasons, [186], citing Honarvar v Professional Painting AU Pty Ltd [2022] NSWPICPD 12 per Snell DP.
The Member then reviewed the evidence[53] before applying the evidence to what he has described as “the Diab criteria”. The Diab criteria are those set out within that decision at [88] and identified (a)–(e) in that paragraph.[54] The Member then dealt with each of these criteria in turn.
[53] Reasons, [189]–[199].
[54] See [66] below.

Criterion One

The Member found as follows:
“The first criterion in Diab concerns whether the treatment is appropriate. The evidence is persuasive that it is. [The appellant] stated that it improved his pain levels noticeably.”[55]
[55] Reasons, [200].
According to the Member, this improvement was corroborated by the medical opinions of Dr Hiley, Dr Vickery and Dr Standen.

Criterion Two

The Member found:
“As to the availability of alternative treatment and its potential effectiveness, [the appellant] has been managed for chronic pain since 2016 with a variety of alternative treatments, and an assessment of their availability and potential effectiveness is to a large extent, a matter of history.”[56]
[56] Reasons, [202].
The Member then described the significant history of treatment undergone by the appellant over time, including the wide variety of medication, injections, a ketamine infusion and pain management, before reaching his ultimate findings at reasons [213] and [214]:
“213. … I find that the available alternative treatment has not had the potential to be as effective as the treatment by medicinal cannabis.
214. It follows that I am also satisfied that the treatment by medicinal cannabis has actually been effective and, has the potential to continue to be so.”

Criterion Three

The Member found that the cost of the treatment was not reasonable. The relevant findings are as follows:
“221. The evidence was more precise before me, and I was not persuaded by Mr Epstein’s response. It was no answer to the respondent’s complaint, that [the appellant] was going to be under regular supervision. The providers of the medicinal cannabis were quite unambiguous as to the duration of any treatment and on one view the treatment was to be provided as long as [the appellant] required it. This is a problematic response, given that [the appellant] suffers from chronic pain. I have noted the opinion of three experts in pain management, all of whom stated that [the appellant] is catastrophising his injury, and that he is fearful of reinjury. There is accordingly no reliable evidence as to when, if ever, the [appellant] will recover from this condition.
222. It is also apparent that the estimate given in the ARD form of a monthly cost of $464 has not been confirmed. The treating doctors at CA Clinics eschewed any knowledge of the actual cost and recommended an approach be made to the pharmacies concerned with supplying the various products. Mr McGrath referred to at least six products that had been prescribed for [the appellant],[57] and the evidence from Mr [Narayan] demonstrates that the claimed cost of $464 per month is inconsistent with the actual cost. It would not be reasonable to expect the respondent to meet the costs of close to $5,000 per month as calculated by Ms Compton, with whose approximation I agree (my calculation came to $4,886.19 per month) on an open-ended basis.
223. There is thus no certainty as to the precise cost – or even the precise product, as I note Dr Hiley’s evidence that some product became unavailable and another less suitable product was found. In any event it is significantly different from that claimed.”
[57] Reply, p 85.

Criterion Four

Criterion four in Diab refers to “the actual or potential effectiveness of the treatment”. The Member dealt with this in a manner favourable to the appellant with respect to criteria two.

Criterion Five

The Member dealt with criterion five in a manner favourable to the appellant at reasons [224]:
“The remaining criterion relates to whether the proposed treatment is accepted by medical experts as being appropriate and likely to be effective. In that regard, if it becomes relevant, I am satisfied that notwithstanding the prescription of medicinal cannabis is a novel treatment, it has been embraced by the pain management profession to the extent that there were 10,000 referrals in the month of August 2021 alone, as stated by Dr Hiley. I also note that whilst the respondent witnesses expressed some reservations about the circumstances under which such a treatment should be offered, there was an acceptance that it was likely to be effective under some conditions and was appropriate to the palliation of an injured worker’s pain.”
Ultimately, the Member made an award in the following terms:
“There is accordingly an award in favour of the respondent.”[58]
[58] Reasons, [225].
The Certificate of Determination issued on 11 April 2022 records as follows:
“The Commission finds:
1. The proposed treatment is not reasonably necessary.
The Commission orders:
2. There is an award in favour of the respondent.”

GROUNDS OF APPEAL

The appellant submits that the Member’s decision was affected by the following errors:

Ground One: The Member failed to provide adequate reasons in finding that the proposed treatment of the administration of medicinal cannabis to treat an injury sustained on 5 January 2016 was not reasonably necessary and in doing so made an error of law.

Ground Two: The Member erred in finding that there was no reliable evidence as to when, if ever, the appellant will recover from his condition. This was an error of law and fact.

Ground Three: The Member erred in finding that the appellant was catastrophising his injury and that he is fearful of re-injury. This is an error of law.

Ground Four: The Member erred in finding that as the treatment was open-ended, the cost had the potential to be unreasonable notwithstanding that the appellant was under regular medical supervision. This was an error of law and fact.

Ground Five: The Member erred in finding that there was no certainty as to the precise cost and even the precise product. This was an error of law and fact.

LEGISLATION

Section 60 of the 1987 Act provides:
“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).

PRINCIPLES ON APPEAL

The principles to be applied on appeal are found in s 352(5) of the 1998 Act. These principles have been examined in a number of cases and are well settled. In Raulston v Toll Pty Ltd[59] (since 1 March 2021[60] applying to a ‘member’ rather than an ‘arbitrator’) Roche DP said as follows:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)     An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
[59] [2011] NSWWCCPD 25, [19].
[60] The date of relevant commencement of the 2020 Act.
This case involves an application for the payment of proposed medical treatment pursuant to s 60 of the 1987 Act. This area of workers compensation law is well settled. As Burke CCJ said in Rose v Health Commission (NSW):[61]
“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.”[62]
[61] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
[62] Rose, 48A.
Related to what Burke CCJ said in Rose, s 60 of the 1987 Act was extensively canvassed by Deputy President Roche in Diab. 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]:
“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)
As is evident from my above description of the Member’s decision, the Member has referred to “the Diab criteria” and assessed whether they have been established by the appellant.[63]
[63] Reasons, [200]–[225].
Further, the first appeal ground does allege an error on the part of the Member in terms of a failure to provide adequate reasons. In Singh v FTW Products Pty Ltd,[64] Deputy President Roche said as follows:
“The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).”[65]
[64] [2007] NSWWCCPD 230 (Singh).
[65] Singh, [63].

DISCUSSION

As is evident from the review I have undertaken of the Member’s decision, the Member having extensively reviewed the evidence then sought to apply decided authority (Rose and Diab) to the circumstances of this case. After a review of the evidence, the Member found that the appellant had succeeded in establishing all of what he described as “the Diab criteria” with the exception of the third criterion, namely the proposed cost of the treatment. As a consequence, the Member entered an award in favour of the respondent.

As to Ground One: The Member failed to provide adequate reasons in finding that the proposed treatment of the administration of medicinal cannabis to treat an injury sustained on 5 January 2016 was not reasonably necessary and in doing so made an error of law

The essence of the appellant’s complaint in this ground is found in the following submission:
“It is submitted that whilst the Member has dealt with all the ‘Diab’ criteria and found in the Appellant’s favour in respect of all of them except costs, he has not made it clear why his findings as to costs make it necessary for him to find the treatment was not reasonably necessary.
In the decision of Pelama Pty Limited v Blake (1988) 4 NSWCCR 264 it was held by Burke J at p 273:
‘If various alternatives existed for treatment the relative costs were a factor to be evaluated. There must be some cost benefit analysis. If a high cost, minimally effective regime had been instituted where a low cost, maximally effective alternative existed the former may well be adjudged not reasonably necessary. Even where but one avenue of possible treatment existed it may be that its effectiveness was so minimal and its costs so great that it could not be considered reasonably necessary.’
It is submitted that no such costs/benefit analysis was carried out by the Member in this case. All that occurred is that the Member found that there was no certainty as to the precise costs. It is submitted that there has been no attempt to explain why the uncertainty as to costs results in a finding that the proposed treatment is not reasonably necessary.”[66]
[66] Appellant’s amended submissions, 6 May 2022, [1.7]–[1.8].
In response, the respondent argues that the Member has dealt with the Diab criteria and further notes that “the Appellant was given an opportunity to respond to the Respondent’s submissions with respect to the proposed month costs within [its] reply documents, however he did not do so. He cannot now complain as to the issue of the calculation of the costs.”[67] The respondent asserts that the Member’s decision with respect to the costs of the proposed treatment was open to the Member to make on the evidence.[68] The respondent concludes by saying that the reasons were lengthy and detailed and, in accordance with authority, provided the appellant with an understanding as to why he did not succeed.[69]
[67] Respondent’s submissions, [29].
[68] Respondent’s submissions, [31].
[69] Respondent’s submissions, [36].
The respondent asserts that this finding was made in accordance with Diab.[70]
[70] Respondent’s submissions, [37].
As I have described, the Member has proceeded to apply “the Diab criteria” to the facts of this case. This process commenced at reasons [200] and following, and involved the Member evaluating each of the five criteria, ultimately finding that the appellant had established all of the criteria save and except for the cost of the proposed treatment. I think it is a fair reading of the Member’s decision that he has treated the criterion of cost as being determinative of the overall outcome. The Member, with some justification, criticises the appellant’s actual claim for costs as there is a divergence between the evidence actually before the Member and the claim that appears in the ARD.[71] The appellant complains that consistent with the decision in Pelama Pty Limited v Blake[72] per Burke J, there had been no cost benefit analysis undertaken by the Member. In some respects this is not a fair assertion in that before the Member, there was no comparison between the cost of the significant other medications that had been taken by the appellant apparently for little relief over the years and comparing that to the proposed costs of medicinal cannabis, which was it must be said particularised in an unhelpful manner. Even if for the purposes of this appeal I was to accept the Member’s finding that the cost would not be reasonable,[73] nowhere does the Member explain why this criterion alone should be determinative, consistent with the authority of Diab, such as to enter an award in favour of the respondent.
[71] See reasons, [172]–[173], [222]–[223].
[72] (1988) 4 NSWCCR 264.
[73] See reasons, [222]–[223].
As I have set out above, Diab at [88] sets out a number of factors to be considered when assessing the reasonableness of a claim under s 60 but this section of Diab states that these considerations “are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose”.[74] Further, considering the issue set out at point (d), the actual or potential effectiveness of the treatment, Deputy President Roche in Diab found as follows:
“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 ... As always, each case will depend on its facts.”[75] (emphasis added)
[74] Diab, [88].
[75] Diab, [89].
Diab then goes on to say:
“While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C).”[76]
[76] Diab, [90].
Rather than approaching this decision in accordance with these extracts from Diab that I have set out, the Member has only assessed the five Diab criteria as against the evidence and made findings accordingly. Nowhere has the Member explained why the appellant’s failure to succeed on the criterion of cost automatically results in the rejection of the application. The reasoning in this regard is inadequate.[77] There may be a circumstance where the cost is so high and the potential outcome marginal, that cost could be determinative having regard to all of the facts of the particular case. But that is not the circumstance in this matter. The Member has found that the treatment is appropriate, and the evidence is persuasive that it is. The Member has found that the appellant had undertaken a wide variety of alternative treatments which have not been effective. Indeed, he finds that the appellant’s use of medicinal cannabis has been effective and has the potential to continue to do so. This is a powerful finding.[78] Nowhere has the Member explained why a finding of unreasonableness with regards to the proposed cost of the treatment is to prevail or be preferred to the Member’s finding about the effectiveness of the appellant’s usage of medicinal cannabis which appears at reasons [214].
[77] Beale v GIO (NSW) (1997) 48 NSWLR 430, [443]–[444].
[78] Reasons, [214].
As I have set out from Diab at [90], the criteria are merely “useful heads for consideration” and the essential question is whether the treatment was reasonably necessary. The Member has approached the criteria not as useful heads for consideration but rather as a confined list of matters that an appellant is required to establish in order to gain an award under s 60 of the 1987 Act. A fair reading of the Member’s decision other than with respect to cost would suggest that the proposed treatment, namely the essential question to be asked, is reasonably necessary.
In misapplying the authority of Diab, the Member has erred in law. Further the Member in deciding that the criterion of cost was determinative, did not adequately express his reasons for this finding.
Ground One has been established.

As to Ground Two: The Member erred in finding that there was no reliable evidence as to when, if ever, the appellant will recover from his condition. This was an error of law and fact

The appellant alleges that the following sentence at reasons [221] constitutes an error of both fact and law:
“The providers of the medicinal cannabis were quite unambiguous as to the duration of any treatment and on one view the treatment was to be provided as long as [the appellant] required it.”
The appellant says the factual error is this. Namely, it was not for the appellant to decide how long he needed medicinal cannabis as the plan was that he would remain under medical supervision at all times.[79]
[79] Appellant’s amended submissions, [2.3].
As far as the error of law is concerned, the appellant submitted that firstly, whether the appellant will ever recover from his chronic pain is an irrelevant consideration to the provision of medicinal cannabis and secondly, it is not one of the Diab criteria.
The respondent says that the single line comment has been taken out of context and the entirety of the Member’s reasons need to be considered, particularly given that he accepted that the appellant suffered from chronic pain. The respondent says that the appellant has not identified what the error of fact or law is, and otherwise relies on its submissions in respect of Ground One.
This appeal ground is without merit. Firstly, with regards to the alleged factual error, I accept the respondent’s submission that the decision has to be read as a whole. The Member reviewed the lengthy history of medical treatment which had been undertaken by the appellant and which had led to temporary improvements in his experience of pain from time to time. As the respondent states, the Member accepted that the appellant had a chronic condition and that he suffered from chronic pain.[80] I do not read the offending section of paragraph [221] as stating that the duration of the medicinal cannabis treatment will be, as the appellant now alleges, “at the whim of the appellant”. I do not think that that is an accurate or fair reading of the Member’s reasons. I do not accept that the error of fact as alleged has been carried out.
[80] Respondent’s submissions, [39].
In terms of the error of law asserted by the appellant in this ground, the appellant has fallen into the same error as the Member as I have discussed with respect to Ground One. The appellant alleges that whether the appellant will recover is an irrelevant consideration and that it is not part of the Diab criteria. As I have found in relation to Ground One, the Diab criteria are not exhaustive. They are useful heads for consideration.[81] As Deputy President Roche said in Diab, each case will depend on its facts, meaning that matters wider than the five criteria identified in Diab can be considered. In this case there was an issue about the appellant’s chronic pain and hence the likely duration of any treatment. The Member was not in error to take these matters into account. No error is established. Ground Two is dismissed.

As to Ground Three: The Member erred in finding that the appellant was catastrophising his injury and that he is fearful of re-injury. This is an error of law

[81] Diab, [90].

The appellant alleges that the Member erred in finding that the appellant was “catastrophising his injury, and that he is fearful of reinjury”[82] and that this constitutes an error of law. This, the appellant argues, is irrelevant given the Member’s finding that the treatment was appropriate and effective.
[82] Reasons, [221].
Unhelpfully, the appellant has not stated how the error of law arises under this ground. The task the Member was engaged in was construing the medical evidence and endeavouring to ascertain its proper meaning. Clearly there was support in the evidence of Drs Russo, Ho and Nazha with respect to what is said to be the appellant’s catastrophising of his injury. The Member has accurately construed those reports. The real complaint from the appellant appears to be not that the Member was incorrect, but rather “he has exaggerated its importance”.[83] Intervention on appeal requires the identification of relevant error. With respect to the issue of catastrophising, no error has been identified. This aspect of Ground Three has not been made out.
[83] Appellant’s amended submissions, [3.3].
Finally, the appellant says that the Member’s finding regarding the appellant being fearful of re-injury has wrongly been attributed to three doctors when in fact only Dr Russo stated that the appellant was fearful of re-injury. Accepting as a statement of fact that this is correct, namely that the other two doctors did not record or posit a view that the appellant was fearful of re-injury, it is hard to see how this minor error has affected the result. Not every error leads to intervention on appeal.[84] This minor mistake has not affected the result.
[84] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45.
Ground Three has not been established and is dismissed

Grounds Four and Five: The Member erred in finding that as the treatment was open-ended, the cost had the potential to be unreasonable notwithstanding that the appellant was under regular medical supervision. This was an error of law and fact. The Member erred in finding that there was no certainty as to the precise cost and even the precise product. This was an error of law and fact

Both of these appeal grounds relate to the cost of the potential treatment. Given what I have found in relation to Ground One, there is no need for me to deal with either of these appeal grounds. I set out below beneath the heading “Decision” some obiter observations about the state of the evidence regarding the proposed treatment and the proposed cost of the treatment claimed by the appellant, which will need attention prior to the matter being reheard.

DECISION

The appellant has succeeded in establishing error on behalf of the Member and as a result the Certificate of Determination must be revoked. Ordinarily in a matter such as this involving a claim for medical expenses, I would proceed to redetermine the application. There are no real issues of credit pertaining to the appellant and the issues between the parties relate to a construction of the medical evidence. A redetermination is consistent with the objects and guiding principle of the 2020 Act.[85]
[85] See s 3 and s 42 of the 2020 Act.
Unfortunately, given the state of the evidence with respect to the proposed treatment and the estimated cost of the treatment claimed by the appellant, I must with some reluctance remit the matter to be determined by another member. Whilst the Commission is not a tribunal of strict pleading and can act without regard to technicalities or legal forms, there is a wide disparity between what has been claimed in the ARD and the evidence of the actual cost of the proposed treatment. The claim and the evidence are not in simpatico.[86] I would also remark that there appears to be an apparent disparity between what has been recommended by the expert medical evidence and that which has been particularised by the appellant. These are all matters that will require attention before the hearing on remitter. If the matter is to be re-particularised, it is only fair that the respondent have the opportunity to understand the case once it is better particularised.
[86] See what is referred to at [25] and [28] of this decision as an example.

The Member’s Certificate of Determination dated 11 April 2022 is revoked.
The matter is remitted for redetermination by another member.

Judge Phillips
President

10 February 2023