Couch v Electus Distribution Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Couch v Electus Distribution Pty Limited [2022] NSWPIC 153
APPLICANT:	Christopher Paul Couch
RESPONDENT:	Electus Distribution Pty Limited
MEMBER:	John Wynyard
DATE OF DECISION:	11 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Section 60(5) of the Workers Compensation Act 1987 application for declaration that the supply of medicinal cannabis reasonably necessary; whether evidence of drug use and abuse five years ago relevant; whether inconsistent answers in cross examination relevant; whether alternative treatment appropriate; whether cost reasonable; Held- applying Honavar; presumption that treatment reasonably necessary not rebutted by credit issues; applicant now working and at university, conduct of 5 years ago does not displace presumption, answers in cross examination cavalier and careless but evidence established that treatment effective not displaced; applicant treated by injection, opioid medication, psychological counselling but not effective; costs of treatment open ended and uncertain: award respondent.
DETERMINATIONS MADE:	1. The proposed treatment is not reasonably necessary.
ORDERS MADE:	2. There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Christopher Paul Couch, the applicant brings an action against Electus Distribution Pty Limited, the respondent, for a declaration pursuant to s 60(5) of the Workers Compensation Act 1987 (1987 Act) in respect to the proposed treatment of the administration of medicinal cannabis to treat an injury sustained on 5 January 2016.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the proposed treatment reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was heard by video link on 15 February 2022. The applicant was represented by Mr Dennis Epstein of counsel instructed by Mr David Wilson from Wilsons solicitors. The respondent was represented by Ms Nicole Compton of counsel instructed by Mr Neil Bennett from the insurer, GIO. 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

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Admit Late Documents (ALD) and attached documents from the applicant (objected to);
(c)    Reply and attached documents, and
(d)    ALD and attached documents from the respondent (objected to).

FINDINGS AND REASONS

Preliminary matters

As noted above both ALDs were admitted over objection. During the hearing each party emailed me their documents which had not been lodged. For the reasons given ex tempore, both sets of documents were admitted.
Mr Epstein also sought to amend the ARD to add under “medical, hospital or related expenses”, an amount for past treatment in the sum of $1,673 with the details thereof being described “as produced”.
For reasons given ex tempore, I rejected that amendment, noting that if the applicant succeeded in his application, then no doubt an approach could be made to the insurer in respect of past treatment.

EVIDENCE

Applicant’s statement[1]

[1] ARD p 1.

Mr Couch made a statement dated 30 September 2021. He explained that on 5 January 2016 he had to lift a battery which was very heavy and in lowering it, suffered injury to his back. He said he was initially referred to a neurosurgeon Dr Al-Khawaja, who administered an injection to Mr Couch’s back which “did not help.” A prescription of Tramadol did not help either, Mr Couch said.
Mr Couch said that he suffered a pre-existing condition of GORD (gastro-oesophageal reflux disease) and irritable bowel syndrome. These conditions, he said, caused burning sensations in his stomach if he took oral anti-inflammatory medication.
Mr Couch said he was then referred to Dr Russo, pain management specialist, in August 2016. Dr Russo too administered an injection in February 2017 at Norwest Private Hospital. Mr Couch said it made him “very sleepy.” A second injection followed in March 2017, after which he had a Ketamine infusion by way of anaesthetic. He said:[2]
“However after taking that I forgot to take my daily medication of Palexia and Norflex. As a result of this I was extremely sleepy, and it was suspected that I had a drug overdose and I was admitted to Nepean Hospital. However, the reason for my sleepiness was the failure to take the Palexia and Norflex. The hospital notes indicate that I had taken an overdose but that is incorrect.”
[2] ARD p 2 [5].
Mr Couch had no further injections from Dr Russo as he was not achieving any long-term relief. The benefit from the two injections administered lasted six months, Mr Couch said.
Mr Couch said that he had previously suffered ADHD and had been under the treatment of a psychiatrist, Dr Lubna Naaz in that regard. He returned to her, as he said that he was suffering from depression due to the pain. He had also been bullied when he returned to work on light duties.
He said:[3]
“….When I saw Dr Naaz in 2016 and then later in 2017, she referred me to the Cannabis Clinic. However, it took several months before that treatment was approved.”
[3] ARD p 3 [6].
Mr Couch commenced treatment in 2018 at the Cannabis Clinical. There he was first treated by Dr Sharron Davis. He was prescribed THC oil which he would swallow three times a day, 1ml in the morning, 1ml in the afternoon and 2mls at night. Mr Couch said that immediately prior to commencing the treatment, his pain level was 6 out of 10 and it improved to 3 or 4 out of 10 with the treatment.
Mr Couch changed general practitioner (GP) at that point because he moved from South Windsor to Oakhurst, but he remained on the same oil-based cannabis treatment.
He said:[4]
“10. ln July 2020 I ceased having the oilbased cannabis. I was told that I had to rest, and I stopped taking that cannabis for 4 weeks.
The cannabis was then re-introduced but it was changed to flower-based which was vapourised. However, I had a problem known as hyperemesis. This was vomiting. lt appears that I had this problem because the break I had from taking the oil-based cannabis was not long enough.
Accordingly, l had a 2-month break and after that I resumed taking medicinal cannabis. I was vapourising the cannabis which was known as THC and also, I took a wafer which I put under my tongue and that was called CBD. I had no digestive problems from taking this medication.
While I had the break from the cannabis treatment the back pain, I had at that time was very bad.”
[4] ARD p 4.
Mr Couch then said that he had also been referred to another pain management specialist, Dr Tim Ho. Dr Ho prescribed magnesium and fish oil but that did not assist. A Pain Management Program was also attended by phone because of COVID but Mr Couch said “that did not work out”. Accordingly, Mr Couch said, Dr Ho’s treatment did not help him.
Mr Couch then referred to the declinature by the insurer in June 2020 to pay for any more medicinal cannabis. Mr Couch said he could not afford to have it “although I have had it now and then”.
He said that since ceasing the cannabis “my pain level has increased dramatically”. He then described the pain as “a strong aching pain in the centre of my lumbar spine which spreads out to my hips on both sides”.
Mr Couch said the pain was constant and that he needed to take Melatonin and strong sedatives to sleep. He described other symptoms and said that when he was on the medicinal cannabis he had “much lower pain”. His sleep was better and his mood was better.
Mr Couch said that recently he had been under the management of another pain specialist, Dr Nazha, who worked with Dr Russo.
A ketamine infusion was administered on 13 September 2021 which was a slow release seven-day injection. Mr Couch said that it “made everything worse. I was not sleeping well”.
Mr Couch said he was about to try a spinal stimulator. He said he was currently working, doing psychology work 12-15 hours per week.

The back injury

An MRI of the lumbosacral spine taken on 5 April 2016 showed disc disease at L2/3, L4/5 and L5/S1. The left paracentral disc protrusion at L4/5 and an associated annular tear.
The radiographer Dr Metri said:
“This is likely to result in significant focal back pain.”
He also noted that there was probably some involvement of the existing left L4 nerve root.[5]
[5] ARD p 20.
In a repeat MRI scan dated 20 January 2020, the conclusion of Dr Ian Clare, the radiologist was:[6]
“Mild lumbar are degenerative disc disease
L4 – 5 midline annular tear
no definite herniation or nerve root compression identified.”
[6] ARD p 75.

Dr Al Khawaja

A report from Dr Al-Khawaja, neurosurgeon, dated 18 March 2016 was lodged. He referred Mr Couch for an MRI, which on 29 April 2016 Dr Al-Khawaja said showed “significant injury at L4/5 and L5/S1 level and an injury at L2/3”.
Dr Al-Khawaja thought that the injuries at L4/5 and L5/S1 were most likely responsible for Mr Couch’s symptoms. On 11 May 2016 Dr Al-Khawaja reported an administration of that epidural block, and reported on 11 June 2016 that the lower back pain had improved, but that Mr Couch was having trouble with the upper back pain.
Dr Al-Khawaja suggested that Mr Couch go through pain management and exercise rehabilitation.

Dr Sergides

Mr Couch was assessed in 2018 By Dr Yanni Sergides, orthopaedic surgeon. Although he considered the possibility of surgery in a report of 11 February 2020, he ordered a nuclear medicine bone scan for a confirmation that surgery was indicated.[7] The bone scan was taken on 11 March 2020 and indicated low-grade degenerative change at L5/S1, no evidence of active facet joint arthritis, and a normal appearance of the sacroiliac joints[8]. No further evidence was lodged from Dr Sergides and I infer that the bone scan did not confirm that surgery was indicated.
[7] Reply p 27.
[8] ARD p 76.

Dr Marc Russo

Dr Russo, specialist pain medicine physician, reported to Dr Al Khawaja on 3 August 2016 and 19 October 2016.[9] Dr Russo also reported to Mr Couch’s GP, Dr Mutasim, on 14 December 2016 and 28 June 2017.
[9] ARD from p 23
In his report of 3 August 2016, Dr Rosso said:
“What [Mr Couch] describes is a diffuse large area of horizontal low back pain at approximately the L5 segmental level as a constant aching pain. Occasionally, he can experience a large stabbing pain referred into the buttocks and upper thighs posteriorly. He rates his pain on a numerical rating Scale of 7/10. It varies between 5 to 8/10 in any given week….
…..
… He continues to work in the warehouse 28 hours per week demonstrating a strong work ethic.”
Dr Russo administered psychometric testing and found that there was “significant catastrophising present.” The testing showed significant impairment in cognitive and behavioural response to persistent pain.
In his report of 14 December 2016, Dr Russo recorded:[10]
“Given his ongoing low back symptoms, which are now very well between being pain free and having pain on a numerical rating Scale of 4 to 8/10 in any given week, it is appropriate he proceed with continued conservative care…”
[10] Reply p 20.
In a report of 28 June 2017, Dr Russo concluded:
“I think, from here, Christopher needs to really focus on a home based exercise program and that will be the key to long-term further improvement. I will leave the next appointment open. I would be happy to review him down the line as required.”

Dr Tim Ho, pain and rehabilitation specialist

Dr Tim Ho reported to Mr Couch’s GP on 31 March 2020.[11] Dr Ho noted the prior pain management by Dr Russo by way of radio-frequency of the lumbar disc, PRP injection to the disc and Eternacept injection into the nerve root. Dr Ho noted there had been no benefit from that treatment, but in fact it had worsened the pain. Dr Ho reported the trial of multiple medications including Lyrica, Norflex, Palexia and Endone with significant side effects. Dr Ho said:
“… There is associated adjustment disorder, catastrophisation and reduced self-efficacy related to his pain.”
[11] ARD p 77.
Dr Ho noted that Mr Couch was not keen on further medication or interventional treatment. Dr Ho said:
“I would support his current cannabis oil treatment given the efficacy and safety. I have suggested further formal pain management program which Christopher is keen on. I have suggested a trial of Magnesium, fish oil and Vitamin B3. I have suggested a trial of ultramicronised PEA starting at 300 mg daily and increased gradually to 300 mg t.d.s.”

Dr Alan Nazha

Dr Alan Nazha, pain physician and interventional pain specialist, reported on 17 November 2020. Dr Nazha acknowledged that Mr Couch was known to two previous pain specialists – the “highly regarded pain specialist,” Dr Mark Russo in 2016-2018, as well as Dr Tim Ho. He noted that Dr Al-Khawaja and Dr Sergides had been involved and that Dr Sergides had “possibly” advocated a lumbar interbody fusion at L5/S1.
Dr Nazha recorded a history that the most amount of benefit came from the treatment by Dr Russo, namely the pulsed radiofrequency intradiscal therapy and Etanercept epidural steroidal injection. The applicant gained the most amount of improvement and was able to begin physiotherapy.
Dr Nazha reported that “unfortunately for Christopher, his pain began to return…” Dr Nazha noted that after seeing Dr Ho, Mr Couch had been engaged in a “psychoeducational pain management programme called ‘kick start’.” Dr Nazha said that Mr Couch had “done his best” with self-management strategies, and still saw a “well-regarded” chronic pain psychologist, Sava Tsolis.
Dr Nazha noted that the main complaint was an axial lower back pain which was always present. Dr Nazha said:
“It is a horizontal band across his lower back but also runs in a vertical plane predominantly within the midline. It does intermittently radiate down the right leg in what appears to be at the L5 distribution; however the leg pain does not bother [Mr Couch] that much as it is highly intermittent and the bigger pain is that on his lower back pain.”
Dr Nazha noted the investigations in the form of both MRI and SPECT – CT imaging. Dr Nazha thought that the bone scan indicated uptake at L5/S1 and that the MRI showed “type 2 Modic changes at L5/S1 with disc dessication.”
Dr Nazha administered self-report questionnaires, noting that the result for Mr Couch was that he was:
(a)     moderate for depression;
(b)    severe for anxiety and moderate for stress;
(c)    Severe for pain catastrophising, and and
(d)    on the numeric rating scale: worst 9/10, least 5/10, and average 6/10. 9 out of 10 and the least 5 out of 10.
In a heading entitled “Other matters,” Dr Nazha noted that Mr Couch utilises prescribed medical cannabis which had been provided to him by “Dr Murray.”
He noted that the medications being used were Norflex (but only on a pm basis) and “Oxycodone 5mg immediate release pm.” The Oxycodone was only administered “extremely intermittently,” Dr Nazha noted, such as when Mr Couch was taking long drives.
Dr Nazha noted that Mr Couch was comorbid for asthma, ADHD, gastroesophageal reflux disorder and irritable bowel syndrome. In a heading entitled “Medications,” Dr Nazha noted the ingestion of Norflex and Endone on a pm basis, and prescribed cannabis. Mr Couch utilised cannabis “extremely intermittently such as when he is taking long drives.” [12]
[12] ARD p 87.
Dr Nazha discussed a surgical option of a fusion, but Mr Couch wished to “hold off” for the time being. Dr Nazha thought that the alternative strategies were to look at neuromodulation and regenerative therapies, including perhaps the novels therapy of multifidus stimulation, which was “relatively non-invasive.”

Dr Lubna Naaz, consultant psychiatrist

The applicant lodged three reports from Dr Naaz, dated 11 November 2016, 12 March 2018 and 2 July 2018.[13]
[13] ARD from p 53.
On 11 November 2016 Dr Naaz reported that she had been managing Mr Couch since his work-related injury for an Adjustment Disorder with Depressed Mood related to a Chronic Pain Syndrome. Her report was a referral and recommendation that Mr Couch undergo sessions with a psychologist.
In her report of 12 March 2018 Dr Naaz advised that she had been managing Mr Couch since 2014. Her report was addressed to Mr Couch’s GP and acknowledged that the GP was aware that Mr Couch had a diagnosis of ADHD. Dr Naaz confirmed her earlier diagnosis and noted that Mr Couch was “self-medicating with Cannabis.” She said that she had last seen Mr Couch on 11 September 2017 when he had stopped all his medication and was exploring options of prescription of medicinal cannabis.
On 2 July 2018 Dr Naaz noted that Mr Couch had been trialled on the medication regime recommended by Dr Russo which she listed:
(a)    Endone
(b)    Palexia
(c)    Celebrex
(d)    Voltaren
(e)    Norspan patches
(f)    Norflex
(g)    Lyrica
(h)    Tramadol SR.
She repeated that Mr Couch had been self-medicating with cannabis. She said that Mr Couch was using his medications only on an as needed basis, due to the side effects.
Dr Naaz said:[14]
“Due to ongoing pain, his depression and anxiety are not controlled with a significant impact on his day to day functioning.
I therefore am referring him to a Cannabis Clinic for further evaluation and management”.
[14] ARD p 58.

Ms Sava Tsolis - 25 November 2017

Ms Tsolis was a clinical psychologist who reported to Dr Russo on 25 November 2017.[15] Ms Solis advised that she had assessed Mr Couch on 1 November 2017. She noted that Mr Couch had been suffering seven months of anxiety symptoms which first began following his resignation from his workplace in May 2017 “in the context of workplace bullying.”
[15] ARD p 51.
Ms Solis noted that the triggers for Mr Couch’s anxiety tended to be financial pressure, his inability to find alternative employment, and fear about the future. Ms Solis recorded a complaint regarding Mr Couch’s back pain which she was told was 5/10 in severity. Mr Couch’s anxiety symptoms had significantly impacted on his ability to function, and Ms Solis advised that “as a consequence of his workplace injury” he had experienced significant losses. She diagnosed an adjustment disorder with anxiety, compounded by chronic pain issues.

St John of God - 24 October 2016

A discharge summary from the St John of God Hospital was lodged.[16] Mr Couch had been admitted to the emergency department in a condition described as “presyncopal” on 24 October 2016. The Clinical Summary noted that Mr Couch had undergone intradiscal pulsed radiofrequency and PRP injection on 21 September 2016 presented with “lumbar back pain and fevers. Intermittent nausea since 19 October with drenching night sweats last 2/7…”
[16] ARD p 33.
A further clinical summary on the same date was that Mr Couch was “presyncopal”.

Norwest Private Hospital - 8 February 2017

The applicant also lodged a discharge summary from Norwest Private Hospital dated 8 February 2017[17] under the care of Dr Russo, which related to the administration of the first of his Entraceptl injections.
[17] ARD p 35.

Nepean Hospital - 6 March 2017

A facsimile to Dr Naaz from Dr Matthew Hannon, the psychiatric registrar at Nepean Hospital, was lodged. Dr Hannon stated that Mr Couch was reviewed by the Nepean Hospital psychiatric team after a neurology admission for “delirium.”[18]
[18] ARD p 39.
The notes of the admission stated:[19]
“Patient stated confusion. Onset 26 February 2017 worsened progressively until presentation to Hawkesbury Hospital on 1 March 2016
Disorientated, disrupted sleep cycle
Poor oral intake
Denied overdose acknowledged that has multiple different meds at home
Verbally aggressive with mother over the phone
Seeking opioids and sedatives PRM”
[19] ARD p 40.

Under the topic “DNA HX” the following was recorded:
“Stated smokes cannabis cones daily.
Binged alcohol MTAUSE
Previous (eligible) amphetamine use
Previous opiate misuse on benzaldehyde prescription.”
Dr Hannon made enquiries following Mr Couch’s admission.[20] He telephoned Mr Couch’s mother and recorded, relevantly, that she believed that Mr Couch had “consumed polypharmacy OD for sedative intent. Possibly Palexia/Quet’op’nc/Lyrica”
[20] ARD p 42.
Dr Hannon’s impression was:
“25-year-old male dependent on parents and Workers Comp… presented with new confusion episode which lasted four – five days requiring resus and monitoring. Pt is diagnosed with delirium, likely secondary to polysubstance use….
Diagnosis – primary substance use disorder with co-morbid chronic dysthyma and Borderline Personality traits…”

PRACTITIONERS FROM CA CLINICS

Dr Davina Hiley - 27 May 2020

Dr Hiley was one of the medical practitioners at CA Clinics. On 27 May 2020 she wrote “To Whom It May Concern” that:
“Christopher [Couch] has been approved by the Therapeutic Goods Administration (TGA) for: Althea Henik.” [21]
[21] ARD p 61 – I assume that Ms Henik was another patient.
Dr Hiley said that Mr Couch had been under her care and had largely been responding well to treatment. This was evidenced by the pain scores recorded as part of her regular monitoring appointments and those of “previous prescribers who were looking after the patient”[22].
[22] ARD p 61.
Dr Hiley reported that Dr Samuel Murray of the clinic had been treating Mr Couch and that in May 2019 Mr Couch reported a pain score of 8/10. By 18 September 2019 Mr Couch put his pain score at 6/10. Dr Hiley said this represented a good result after a few months of treatment.
Dr Hiley said that the pain score had “fluctuated somewhat” since then. She first reviewed Mr Couch in “September last year.” She reported that on 15 April 2020 there was a “significantly reduced pain score of 4/10” which, Dr Hiley said, represented a 50% pain reduction overall.
She said that had also determined that Mr Couch would require a reduced dose of THC “due to potential interactions/adverse effects that they (sic) may have been experiencing, notably hyperemesis.”
Dr Hiley said that the overall status of the patient “thus” was that he had:
“…been able to reduce or stop their opioid and painkilling medications that they had tried as conditional therapy in the past, significant improvement in their overall pain score and quality of life, reduction overall THC usage as per the last review we’ve had and required to use schedule 8 cannabinoid vape only on a PRM basis. This represents as a successful treatment for the patient overall….” (As written).
I assume that the reference to schedule 9 cannabinoid vape refers to the change in administration of the cannabis from oil base to flower base. (It would seem that Mr Couch began to react with hyperemesis to his oil-based medication at around this time, and not in July, as he said in his statement). Dr Hiley said:
“Given that the patient has had a such a significant improvement in their condition whilst being treated with medicinal cannabis, I would like to provide my support for the continued funding of the patients therapy. The patient will need it to continue in order to maintain their current level of wellbeing, the ceasing of which risks the patients pain and quality of life to deteriorate to pre-treatment levels”.
(As written).
Dr Hiley estimated the cost of 90 appointments to be $80, the cost of treatment is $300 plus shipping at $30 per 25ml bottle. The maximum cost per month therefore she said would be $330 which could vary. She did not give an estimate of how long such treatment should be provided for.

Dr Crosby Rechtin -27 July 2020

On 27 July 2020 Dr Rechtin, also from CA Clinics wrote to the applicant’s GP, Dr Bittar, thanking him for the referral and advising that he, Dr Rechtin, had prescribed “Cannatrek T20 Flower (Indica Mongolian)”. He noted that at the time Mr Couch was not taking any medication as he was being treated for “cannabis induced hyperemesis”. Dr Rechtin said that he will commence the applicant on “the vaporised product and a sublingual wafer.”

Dr Hiley 17 - February 2021

Dr Hiley issued a further report addressed to “To Whom It May Concern” on 17 February 2021.[23] This was apparently written in answer to questions firstly as to why Mr Couch was under the care of two practitioners. Ms Hiley stated that she was the only practitioner prescribing medicinal cannabis, and that Mr Couch had been referred to Dr Rechtin, whom she described as an “Emergency Specialist,” as a result of the hyperemesis. She said that Mr Couch’s care had been transferred back to her following resolution of that problem.
[23] ARD p 67.
On being asked whether there was any specific quantitative measure or functional measure by which Mr Couch was evaluated to have experienced benefit from the treatment, Dr Hiley stated that Mr Couch “is reviewed for response at every consultation.”
Dr Hiley said in answer to a further question that she had been informed that Mr Couch had been under the care of another pain specialist during a review with “Claims pharmacy” in 2020. She had also written “in the past” to Dr Bittar and to Dr Naaz. She had not been aware of the involvement of Dr Nazha in the patient’s treatment.
Dr Hiley then answered a question as to why she had recently prescribed an increase in medical cannabis when “our pharmacologist” had recommended a reduction. She stated that the particular products prescribed were both out of stock and accordingly Mr Couch had been prescribed another form of cannabis temporarily, which did “not match his exact requirements for the treatment.”
When asked whether she was aware that there were concerns about Mr Couch’s liver function, Dr Hiley’s response was difficult to understand in its entirety, as her last sentence was unfinished. However, she stated that she was unaware, and neither the patient nor his other practitioners had mentioned to her that liver function was being monitored, nor that any information had been given to her about Mr Couch’s alcohol consumption.
The final question concerned whether Mr Couch’s previous nausea as a result of taking medical cannabis had resolved. Dr Hiley responded that Mr Couch had told her that the issue had resolved, and that was why he had been returned to her care.

Dr Arun Nayak - 20 October 2021

Dr Nayak was another practitioner from CA Clinics who gave evidence. His report was dated 20 October 2021 and was again addressed “To Whom It May Concern.“[24]
[24] ARD p 69.
Dr Nayak answered further questions, presumably from Mr Couch’s solicitors, seeking further clarity as to the change in the type of medicinal cannabis that Mr Couch was treated with. Dr Nayak noted that Mr Couch was “under the care of a different doctor.” That doctor was described as “the doctor at the time” that Mr Couch was having his difficulties with the oil based cannabis.
Dr Nayak answered further questions regarding the cost of the treatment, stating that the price for the cannabis would vary between pharmacies and that the duration of the treatment was “ongoing.” This will be discussed in more detail below.
Also lodged was an email dated 11 February 2022 from “Ails”, CA Team, advising Mr Couch’s solicitors that they were unable to offer a report in the absence of Dr Nayak.[25]

Ms Anna Kaluzny - 17 September 2021
[25] Application to Admit Late Documents (ALD). Already abbreviated above, also no point reference in the ALD.

Ms Kaluzny was a pharmacist who supplied a report dated 17 September 2021 to the applicant’s solicitors.[26] She did not interview Mr Couch. She noted the extensive number of medications prescribed to Mr Couch over the past several years to diminish pain, but that it remained refractory to those treatments.
[26] ARD p 89.
She advised that medical cannabis products were recommended for a trial period where first and second line treatments had been ineffective. It was reasonable therefore, she said, to consider medicinal cannabis as a treatment option for the applicant. Mr Couch’s file showed that such treatment had been successful thus far.
Ms Zaluzny noted the extensive list of medications that had been used by Mr Couch. She advised that those medications had a limited role in treating chronic pain and she noted the common adverse effects for opioids, Lyrica and Norflex. She noted that medication options for chronic-non cancer pain are limited and that opioids did not provide any clinical significant improvement in pain or function. Such medicine should be tapered and ceased where the duration was of greater than 12 weeks, due to the risk of dependence, hyperalgesia and withdrawal symptoms.
Ms Kaluzny said:[27]
“Mr Couch appears to have exhausted all conservative medication”.
[27] ARD p 90.
Ms Kaluzny said that the average monthly cost of medicinal cannabis in Australia is $384. She said that the actual potential effectiveness of this form of treatment involved a range of mechanisms. These included “the release of neurotransmitters and neuropeptides from presynaptic nerve endings, modulation of neuronal excitability, activation of descending inhibitory pain pathways, and reduction of neural inflammation”[28]
[28] ARD p 92.
She noted that cannabinoids act on multiple other receptors in the central nervous system, acting of both spinal and supraspinal levels to produce analgesia. One of the most common symptoms that medical cannabis could be considered for was neuropathic pain and pain associated with muscle spasms.
Ms Kaluzny said that the Therapeutic Goods Administration has provided guidance around the use of medicinal cannabis. She said that 90% of the Special Access Scheme approvals of medicinal cannabis were for chronic pain. Ms Kaluzny said:
“… medicinal cannabis is extensively sought and accepted as a treatment option for chronic pain by prescribers in Australia. Approvals for medicinal cannabis products have nearly doubled over the past 12 months, with over 10,000 approvals granted in August 2021.”
Ms Kaluzny was asked for her opinion as to Dr Needham’s report. She said that a review of medical reports about Mr Couch showed that there was significant improvement in pain and qualify of life as a result of treatment with medicinal cannabis. Successful treatment had allowed Mr Couch to “taper and desist other medications, including opioids.” She noted the adverse effects regarding the administration of medicinal cannabis in clinical trial, which involved dizziness, cognitive impairment and drowsiness. She said however that close monitoring and adjustment can minimise these adverse effects.
She noted that withdrawal symptoms were common and that therefore medicinal cannabis products had to be tapered gradually and patient education was important.
Ms Kaluzny noted that there were no guidelines as to the duration or use of medical cannabis products for chronic pain. She also noted that driving under the influence with THC in the system was illegal. Treatment should continue unless there was no obvious clinical benefit, or there were adverse effects.

Dr Jane Standen - 27 September 2021

Dr Standen is a pain physician and interventional pain specialist who reported to Mr Couch’s GP, Dr Bittar on 27 September 2021. The report was lodged by the respondent.
Dr Standen noted that medicinal cannabis had been withdrawn, which comment will be discussed further below. Her report appeared to be based on the supposition that medicinal cannabis would no longer be available to the applicant, and she discussed other treatments, including future trials of meuromodulation and the use of a spinal cord stimulator. Mr Epstein sought leave to call evidence in regard to this evidence which was granted, and which I discuss shortly below.
Dr Standen noted that Mr Couch “described significant pain and associated disability, which appears to have been exacerbated by withdrawal of oral opioid based medications and provision of ketamine infusion.” She proposed the following treatment plan:
“l      I will seek approval for Christopher to see our clinical psychologist… For desensitisation strategies for pain and sleep strategies
(a)    I will seek approval for Christopher to see consultant psychiatrist Dr Sean Yenson. Christopher states that he does not have a therapeutic relationship with current psychiatrist which suggests provision of Seroquel. Christopher states he is not prepared to trial any antidepressant therapy with previous adverse effects associated with this class of medication.
(b)    I will seek approval to undertake updated imaging of the thoracic and lumbar MRI
(c)    I have indicated to Christopher that I will discuss with Dr Alan Nazha the possibility of trialling the neuromodulation. Christopher would only be suitable for neuromodulation that offers a seven-day trial without proceeding directly to implant. I suggested Medtronic spinal cord stimulator might provide this balance with the understanding that this can be programmed to sub- paraesthesia.
(d)    Please consider this endorsement of provision of a typical short-acting opioid therapy for pain crises. I have suggested provision of immediate release Palexia 50 mg for such crises. Christopher states that he uses no more than one packet of 20 tablets over a 3 to 6-month period.”

Mr Pravesh Narayam - 14 February 2022

Mr Narayam is a pharmacist at McGrath Hill Good Price Pharmacy. In the applicant’s late documents he supplied a certificate dated 14 February 2022 which set out the medications proposed for the continued supply of cannabis. He said:
“The below are medications Christopher Couch required for his ongoing treatment, as well as prices and interval for dispensing:
Xativa CBD Wafer - 60 tabs - 2 week interval - $235.62
Solace 30gm - 10 day interval - $739.95
Rocky x 3bottles - 14 day interval - $995”

Luke McGrath - 26 June 2020

The respondent also lodged two reports from Mr Luke McGrath, medicine review specialist pharmacist, dated 26 June 2020. This was the first of two comprehensive and informative reports lodged by the respondent.
Mr McGrath said that he had a number of conversations with Mr Couch’s GP, Dr Bittar, Dr Hiley, Dr Ho and Dr Naaz over a period of three weeks. Mr McGrath said:[29]
“Dr Naaz suggested that medicinal cannabis may not be the best option for Mr Couch given his psychological conditions however this is complicated by the fact that the pain medications trialled have been unsuccessful, to which she thought alternative medication options may have been explored prior to the use of medicinal cannabis.”
[29] Reply p 71.
Mr McGrath gave a most interesting survey of the effects of alternative medication which Mr Couch was either taking or had taken. He discussed:
·        Endone (which he cautioned could cause addiction and recommended against. Mr Couch had not used this medication for one month. Long-term use of opioids was not recommended but were for use only for the initial acute phase up to 12 weeks of the injury. Should be avoided with concurrent use of medical cannabis);
·        Somac (which is thought to be discontinued as its use had been caused by reflux which was no longer occurring as Mr Couch was being taken off oil based medicinal cannabis);
·        Norflex (for which Mr Couch possessed tablets but was no longer taking and was used for muscle control), and
·        Diazepine (only recommended for short-term use due to their potential to cause drowsiness, central nervous system depression and addiction, again, no longer being taken but on Mr Couch’s prescription list).
Mr McGrath said that treatment should focus on nonpharmacological interventions given that there was limited evidence to support the long-term use of medical cannabis in chronic non-cancer pain. He said when discussing treatment by way of medicinal cannabis: [30]
“Cannabis is a newly available product which is available by a special access scheme… and is prescribed by approved doctors within Australia to help manage conditions such as nausea, insomnia, epilepsy and chronic pain . There are currently many studies being conducted to establish clear evidence of cannabis’ efficacy towards these conditions .
…
.. Cannabis although not ideal in the treatment of chronic pain may have given way to the cessation of some opioid therapies within this claim which is a positive step in Christopher’s case.
…..
At present the evidence base for cannabis products is limited and further research is needed to examine the safety and efficacy of Medicinal Cannabis. As a result, we see no recommended duration of treatment with Cannabis in patients with chronic noncancer pain.
Given the long-term use of Medicinal Cannabis products and despite the fact that this has aided in the cessation of opioid and benzodiazepine medications in the past, I do not believe that this is appropriate to continue and a reduction should commence.”
[30] Reply p 74.
Later in his report Mr McGrath noted that the Royal College of General Practitioners highlights the need for further high-quality research into the safety and effectiveness of medicinal cannabis, as the current event was inconclusive[31].
“Medicinal cannabis products were found to increase the risk of short-term adverse effects such as disorientation, dizziness, euphoria, confusion, among others. These effects are augmented when narcotic medications are included in a medication regime.”
[31] Reply p 77.
Mr McGrath referred to the opinion of Dr Russo of 19 July 2018. This report was not lodged but I accept that is an accurate reproduction by Mr McGrath.
Dr Russo was quoted as saying:[32]
"The best evidence we have to date is that medicinal cannabis is ineffective for nociceptive pain arising from tissue injury or arthritis. It may have some benefit for certain subtypes of neuropathic pain, such as the pain of multiple sclerosis, although more work needs to be done to clarify this."
[32] Reply p 78.
Mr McGrath agreed with the opinion of Dr Needham as to the further steps of rehabilitation that need to be taken including the need for physical reconditioning and psychological support.
He said:
“Although the use of Medicinal Cannabis has assisted to some extent to date, this is not appropriate to continue long-term and alternative treatments must now be considered.”

Luke McGrath - 8 October 2020

In a later report of 8 October 2020 Mr McGrath contacted the medicinal cannabis prescriber at MedCan but was unable to locate a treating doctor as Mr Couch was being seen by a number of different doctors, and Dr Hiley was no longer the treating doctor.[33]
[33] Reply p 82.
Mr McGrath also contacted Mr Couch’s GP, Dr Bittar, and was told that Mr Couch for two months had ceased taking medicinal cannabis, due to severe nausea. Mr couch was now prescribed:
·        Panadeine extra;
·        Endone;
·        Norflex;
·        Seroquel;
·        OxyContin, and
·        Diazepam (to help with withdrawal from excess alcohol use and cannabis cessation).
Mr McGrath concluded:
“After reviewing the documentation supplied and discussing the current medications with the head pharmacists from med can Australia and Dr Bitter, the current treating doctor for Mr Couch, it was outlined that the previous prescribing of medicinal cannabis had causes significant nausea resulting in the cessation of medicinal products for 2 months.
Tanvee [the pharmacist interviewed by Mr McGrath] indicated that alternative medicinal cannabis products have now been prescribed but yet to be re-initiated but were likely going to be started in the coming weeks. This was under the care of a different prescribing doctor from med can Australia (Dr Crosby) in replacement to Dr Hiley who was previously consulted.”
Mr McGrath recommended that because there had been a reaction of chronic nausea to the prescription of medicinal cannabis, the low dose opioid medications which resumed seemed to have been efficacious in treatment. Mr McGrath thought in that case that the risk of adverse effects from medicinal cannabis, despite multiple medicinal cannabis products being trialled at different times, should result in the treatment being withheld. Mr McGrath also noted that that would “help reduce the co-prescribing by multiple doctors and concurrent prescribing of opioid medications and medicinal cannabis which may be possible with multiple prescribing doctors from different practices.”

Dr Paul Miniter - 20 July 2020

Dr Paul Miniter, orthopaedic surgeon, was retained as the medico-legal expert on behalf of the respondent, reporting on 20 July 2020.[34]
[34] Reply p 90.
Dr Miniter assessed the applicant on 16 July 2020. He had available the GPs notes and said that Mr Couch had a long history including a strong family history of mental health issues with anxiety, depression, ADHD with consequent medication between the ages of 6 and 16. Further comments regarding Mr Couch’s history by Dr Miniter will be discussed below.
Dr Miniter noted that Mr Couch was recommended to consider the use of medicinal cannabis. Dr Miniter said that the clinical notes of the GP showed that he had been a heavy cannabis user as a child and young adult, which had not continued. He noted that medicinal cannabis had recently been discontinued. This, Dr Miniter thought, was because of issues with cholestasis, and that Mr Couch was to try a different medical grade cannabis. Dr Miniter noted that this history was given to him by Mr Couch.
Dr Miniter thought that the mechanism of injury appeared to be genuine and it was likely that Mr Couch had sustained an L4/5 disc prolapse.
The insurer then sought Dr Miniter’s opinion on a report from Dr Bodel, given in early 2019.

Dr Geoffrey Needham - 9 March 2020

Dr Geoffrey Needham, consultant rehabilitation pain management specialist reported on 9 March 2020. He noted the multiple neurosurgical assessments and conservative management universally recommended at that stage by the medical practitioners.
He noted at that time Mr Couch was taking multiple medications which included Lyrica, Endone and medicinal cannabis. He noted there a past history of ADHD.
He reported that Mr Couch was undertaking university studies, which Dr Needham found to be quite impressive.
As to the treatment by way of medicinal cannabis Dr Needham said:
“3) Mr Couch has also been undertaking treatment with medicinal cannabis over a prolonged period of time - There is no scientific evidence to confirm the use of medicinal cannabis to be effective in physical reconditioning and rehabilitation in relation to injured workers although medicinal cannabis may well be of significant benefit in cases where recovery is not anticipated and the aim of treatment is palliation of symptoms. It would be beholden on the prescriber of Mr Couch's various medications to provide evidence that any of the above treatments are of benefit.”

Dr Needham - 24 March 2021

In a second report dated 24 March 2021[35] Dr Needham was of the view that the degenerative changes were most likely coincidental and that it was the annular tear at L4/5 was likely to be responsible for Mr Couch’s symptoms.
[35] Reply p 63.
Dr Needham noted in addition to the history taken in his earlier report that Mr Couch remained unfit for work duties over a prolonged period of time which was associated with adverse side effects from various analgesic and antineurotic medications. He said:[36]
“…There has been [a] suggestion of undue reliance on opioid medications and also reliance on alcohol
My previously expressed opinion was that medicinal cannabis was unlikely to be a helpful medication in this situation and could possibly cause adverse effects or also lead to dependence on this medication. In general I would not recommend medicinal cannabis for young persons who are undertaking active rehabilitation. This treatment remains contentious and is not recommended by the vast majority of pain medicine or rehabilitation physicians.”
[36] Reply pp 63-64.
Dr Needham said that he did not believe medical cannabis was a reasonable or effective treatment in Mr Couch’s case. Treatment should focus on the reduction of prescribed medications and the use of “conservative multidisciplinary pain management treatment” such as medical, psychological, and physical therapy. He repeated that the minimisation of problematic medications such as opioids was recommended.

Dr Vickery - 23 January 2017

Dr Graham Vickery, psychiatrist, was retained as the qualified specialist for the respondent. He first reported on 23 January 2017.[37]
[37] Reply p 44.
Dr Vickery took a consistent history of the back injury, and noted that Mr Couch was being managed on Palexia and Norflex. At that time Mr Couch was working two to three hours for three days a week, and complained of harassment and bullying at work.
Dr Vickery found there to be an Acute Adjustment Disorder, which had substantially resolved. He noted that the applicant “uses cannabis and at times consumes up to four standard units of cannabis.”

Dr Vickery - 10 February 2020

On 10 February 2020 Dr Vickery reported that Mr Couch had been treated for ADHA in his teen years and had been taking psychostimulant medication until September 2016 which he had ceased due to taking increased level of Palexia.[38]
[38] Reply p 52.
Dr Vickery noted that Mr Couch completed year 12 in 2018, and his results had been so good that he had been in a university course, having done two semesters at that stage.
Dr Vickery noted that Mr Couch had been undertaking medical cannabis treatment since October 2018 and noted that Mr Couch said that he was not as angry as he was when he was still having sleep problems. Dr Vickery said:
“The short term use of medical cannabis has been beneficial however the long-term prognosis is questionable with relation to functional gains… There is conflicting research of medical cannabis as a treatment modality in such cases.”
Dr Vickery said there was no current psychiatric diagnosis and in view of Mr Couch’s recovery he recommended a trial of withdrawal of medical cannabis therapy over the following three to six months.

Oral evidence

As indicated, leave was granted for Mr Couch to give evidence regarding the report of Dr Standen. This application arose because Mr Couch had an appointment to see Dr Standen on 23 February 2022, and agreement was initially reached that the respondent would concede that fact. Mr Epstein however pressed his application, as Mr Couch wished to clarify a reference made by Dr Standen to the provision of Palexia for “pain crises”, which was said to be misleading. Leave was granted for that purpose.
Mr Couch said in chief that Palexia was prescribed to him on the understanding that he used it on a minimum of 3-6 months basis as a last resort – “plan B” – to the use of medical cannabis. Mr Couch said that medical cannabis was to be the main medication and not to be replaced. A “last resort” was when he had strong flare-up of his back pain, or that when he was using too much medical cannabis so that “it became pointless,”
In cross-examination Mr Couch said that Dr Standen prescribed the Palexia on their first telehealth consultation. He agreed that he had been prescribed Palexia since September 2021, saying he was still on his first prescription box.
Ms Compton asked Mr Couch about his comment that he used Palexia when he had taken too much medical cannabis. Mr Couch said that he may have said that to her, but it was not correct – “a bit muddled up.” He then said that a strong pain flare-up was between 8/10 and 10/10 and medical cannabis was not as useful “at those heights.” Mr Couch said he needed to use Palexia in conjunction with the medical cannabis, to be able to work.
In answer to a question that Mr Couch only took cannabis at a lower level of pain, Mr Couch said that “more specifically, it maintains a lower level.” Mr Couch said that with the cannabis his pain level was maintained at “about 4/10” and if he did not have the cannabis “it sits at about 6-7/10.”
When Ms Compton put to Mr Couch that the level of pain was the same as when he was being treated by Dr Russo in 2016, Mr Couch said that he was then dealing with a level of pain “anything between 6/10 and 8/10.”
Ms Compton was permitted, over objection, to suggest that throughout Mr Couch’s treatment by various pain specialists, he had been honest about the levels of pain he described. Mr Couch agreed, but when it was put that some times his pain had been as low as 4/10, Mr Couch qualified his agreement by saying he was under the influence of medication. Ms Compton suggested that the lowest it had got whilst using medicinal cannabis had been a 5. Mr Couch demurred and said he had reported, he believed, in the past 3 or 4/10 using medical cannabis.
Mr Couch said that he had never been pain free, regardless of what medication he took.

SUBMISSIONS

Mr Epstein referred to the original back injury treatment given by Dr Al Khawaja of an epidural block. Mr Epstein referred to the subsequent pain management treatment Mr Couch was given. Mr Epstein submitted that Mr Couch had to go to Hawkesbury Hospital and St John of God Hospital with fevers following the administration of a neurotomy with Dr Russo. Mr Epstein referred to the St John of God Hospital notes in that regard.
Mr Epstein referred to the discharge summary from Norwest Private Hospital of 8 February 2017 which related to Mr Couch’s first Etanercept injection, and stated that the second one followed in March 2017 under Dr Russo. Mr Epstein said that Mr Couch was then admitted to Hawkesbury Hospital on 1 March and then to the Nepean Hospital where he remained for six days for a suspected drug overdose. This was an error, I understood Mr Epstein to submit, which was “clarified” by Mr Couch in his statement.
Mr Epstein noted that by this time Mr Couch was under the care of a psychologist, Ms Tsolis, and was under the care of Dr Naaz. Dr Naaz referred Mr Couch to the cannabis clinic. After a delay whilst his application was approved, Mr Couch’s pain level reduced from 6/10 to 3 or 4/10.
Mr Epstein referred to Dr Sergides’ opinion in 2018 that a conservative approach should be adopted after he had reviewed an MRI scan.
Mr Epstein referred to the reports from the Cannabis Clinic and the detail of the treatment afforded pursuant to the TGA approval. I was referred to the report of Dr Ho’s support for the treatment.
Mr Epstein relied on the report of Dr Hiley that there had been a 50% reduction in Mr Couch’s pain. Mr Epstein referred to Mr Couch’s explanation as to the vomiting that caused him to cease for a few months.
Mr Epstein noted the deleterious effect Mr Couch had experienced after the insurer ceased payment for his cannabis treatment. He relied on Dr Hiley’s response to questions as to how Mr Couch’s progress was assessed and his hyperemesis. Mr Epstein referred to the questions answered in the “To Whom It May Concern” reports I have discussed above. Mr Epstein noted that costing was best addressed by the pharmacies that supplied it.
Mr Epstein referred to Ms Kaluzny’s report and noted her acceptance of the proposed cannabis treatment. He relied on her evidence that this treatment was now an accepted option by the medical profession, noting that 90% of approvals were for chronic pain which showed that it was extensively sought by providers, and had doubled in recent times.
Mr Epstein then considered the reports of Dr Needham. It was nothing to the point that medicinal cannabis was not effective in physical reconditioning and rehabilitation, Mr Epstein argued, as the purpose of the treatment for Mr Couch was to reduce the pain. The purpose was palliative, Mr Epstein argued, which Dr Needham acknowledged was a legitimate use for the treatment.
Mr Epstein submitted that Mr Couch’s condition was not expected to improve and accordingly the treatment was appropriate. Mr Epstein referred to Dr Sergides’ opinion that this treatment would be needed to get Mr Couch back into the work force. Mr Epstein conceded that in fact Mr Couch was back in the work force but was nonetheless not able to do the sort of physical work he had been doing.
Mr Epstein referred to Dr Sergides’ later report in which Dr Sergides contemplated surgery. Mr Epstein said that therefore Dr Sergides did not consider that conservative treatment would work.
Mr Epstein said that the application fitted into the criteria in Diab[39]. The only effective treatment was shown to be the proposed treatment. He submitted that even Dr Needham had agreed that it had that effect.
[39] Diab v NRMA [2014] NSWWCCPD 719 (Diab).
In that regard Mr Epstein submitted that the opinion of Mr McGrath that medicinal cannabis did not reduce chronic pain, was contrary to Dr Needham’s report. It was also contrary to the opinion from the cannabis clinic and Mr Couch himself.
In the final analysis the issue is one of fact, Mr Epstein said. The evidence was very strong that Mr Couch had experienced significant improvement from this treatment. He conceded that there was a problem as to how long Mr Couch had to have it, but that was because the experts were unable to say, subject to a regular review, which was occurring. He was under regular supervision.
None of the decisions relating to these applications required such precision as was intimated by the respondent. The cost aspect was uncertain, but had been explained, he said.

Ms Compton

Ms Compton opened her address by asking what was being sought in this application. The ARD requested the supply of medicinal cannabis at a total of $464 per month indefinitely is what was being sought.
The costs were said to be $384 per month for the product, but the insurer did not know which product was being prescribed. The supply of cannabis anyway was always under review and might be more or less. She said there was no way the insurer could calculate what the cost would be without any accompanying indication by way of a plan or anything else. In reference to Diab, she said the cost was onerous and was unlimited.
Ms Compton said there were two aspects to the applicant’s statement that medicinal cannabis was effective, or appropriate under the Diab criteria. The first was that the applicant had a history of cannabis use that predated his injury. There was a history of opioid abuse with opioid overdoses recorded, notwithstanding that he attempted to glaze over that history by saying that he did not overdose, but had made a mistake in his medication. Ms Compton submitted that the applicant made that claim in his statement of 2021, but that it did not sit well when the contemporaneous record was examined. The contemporaneous record should be preferred - particularly when it gave a “plethora” of information in this regard.
It was likely that Mr Couch was being “upfront” when the entry in the Nepean Hospital recorded the cannabis use and opioid abuse. This history was significant, Ms Compton said, as it showed a history of drug abuse.
This could not be dismissed as an erroneous entry, Ms Compton submitted, because the history was repeated by Dr Naaz, who noted in March 2018 that he was self-medicating with cannabis. This was again noted by Dr Naaz in her July 2018 report.
Further, Ms Compton said, Mr Couch had an unrelated anxiety disorder with depressed mood. Thus, if Mr Couch was medicating for other purposes, it did not suggest that it was reasonably necessary for his workplace injury.
Ms Compton referred to the reports of Dr Hiley in 2020, who said the supply of medicinal cannabis was going to be long term into the foreseeable future. Ms Compton referred to Dr Hiley’s reliance on the pain score to demonstrate progress, and that 4/10 represented a 50% improvement since Mr Couch had been taking cannabis. Ms Compton referred to the pain scores recorded in 2016 when the pain score had been recorded by Dr Russo in August 2016 at between 5 and 8/10, and then in December 2016 as being between pain free and
[40] Reply p 20.
4 and 8/10 in any given week.[40] Ms Compton argued that since Mr Couch was still at work at the time of the August 2016 report, it could be expected that his pain would be the strongest – the injury having occurred in January 2016.
It followed that the submission that there had been a significant improvement because of the use of medicinal cannabis could not have any weight, Ms Compton said. The pain scores were similar before Mr Couch began using cannabis.
Ms Compton noted that Mr Couch had been using medicinal cannabis for about three years and suffering side effects from time to time. These were no different to the sort of side effects that can be caused by opioid medications. It was extremely costly and open ended.
Dr Standen’s September 2021 report revealed that she was the applicant’s current treating pain specialist, and yet she was not mentioned in the applicant’s case, which Ms Compton submitted was significant. Of particular interest, she submitted was Dr Standen’s history that Mr Couch was not taking medicinal cannabis at the time, as the insurer had withdrawn approval.
It was this report in the evidence that best described Mr Couch’s current situation in terms of his clinical picture. There was no indication that Mr Couch was still taking medicinal cannabis, he was still working, and still studying, Ms Compton said. She noted that Dr Standen’s report constituted a treatment plan which did not include medicinal cannabis. The only medication considered was Palexia 50mg for “pain crises.”
Ms Compton referred to Mr Couch’s cross-examination that it was never the intention to stop the use of medicinal cannabis, and Palexia was to be used in addition to the cannabis when his pain flared. That, Ms Compton stated, was not what Dr Standen said.
Ms Compton referred to the pharmacist’s report of Ms Kaluzny, submitting that her report was not specific to Mr Couch, but was a file review, and too general to be accepted as applicable to Mr Couch’s case. Moreover, her criticism of Dr Needham’s report could have no weight, as she was not qualified to give that opinion.
Ms Compton then referred to Dr Miniter’s report of 2020 and his finding that Mr Couch suffered a 7% whole person impairment (WPI). Dr Miniter referred to a report from Dr Bodel that had not been lodged. Ms Compton submitted that there was no indication in Dr Miniter’s report that he disagreed with Dr Bodel’s opinion, except that Dr Bodel might have given more for the activities of daily living.Ms Compton submitted that a Jones v Dunkel inference was accordingly available.
Ms Compton also submitted that the low assessment went to the issue of appropriateness, as there was authority to suggest that it involved an element of proportionality to the objective seriousness of the injury. That objectivity was supplied by the WPI assessment.
At this point the allocated hearing time expired, and directions were made for written submissions to be lodged to complete the matter.

WRITTEN SUBMISSIONS

Ms Compton

Ms Compton summed up her oral submissions, and then repeated her objection to the admission of the late documents lodged by the applicant, which I referred to at the outset of these reasons.
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 Mr Couch.
Ms Compton said that although Dr Standen had the opportunity to recommend ongoing medicinal cannabis, she did not. Ms Compton also emphasised Mr Couch’s evidence in cross examination that he was utilising cannabis in conjunction with the Palexia, which contrasted with Dr Standen’s history that Mr Couch did not have access to any ongoing medicinal cannabis as at September 2021. An inference was available, I understood Ms Compton to submit, that Mr Couch was continuing to use cannabis, which he had sourced himself.
Ms Compton also repeated that the applicant 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.

Ms Compton repeated her submissions regarding Mr Couch’s estimate of the numerical pain scale improvement in his pain with the use of medicinal cannabis could be given little weight when compared to his estimate when he was using different treatment for his pain in 2016.
Ms Compton then addressed the subject of adverse effects caused by the use of medicinal cannabis. She referred to the opinion of Ms Kaluzny, which discussed such effects and which stated that close monitoring and adjustment was required to minimise those effects.
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.
Ms Compton referred to the evidence of Dr Vickery in January 2017 that Mr Couch had been using cannabis, and that Mr Couch sustained a psychiatric condition which had largely resolved when seen. Ms Compton contrasted that assessment with Dr Vickery’s opinion of February 2020 that the effect of the medicinal cannabis, which Mr Couch had been taking since October 2018 was not assisting the applicant as much as previously. Ms Compton acknowledged that there had been some recovery and Dr Vickery said it was unclear whether the recovery was due entirely or at all to the medicinal cannabis. She noted Dr Vickery’s view that short term use of medicinal cannabis had been beneficial but that he questioned whether it was suitable for long-term gains. Ms Compton also referred to Dr Vickery’s view that there was conflicting research into treatment by medicinal cannabis in such a case. Ms Compton submitted that Dr Vickery’s two reports demonstrated that there was no noticeable improvement “(other than reported reduction in pain.)”
Ms Compton concluded by referring to Shaun Donnelly v Camsans Pty Ltd [2021] NSWWCC19 where a similar application regarding medicinal cannabis was rejected. The facts were different and Ms Compton acknowledged that each case has to be considered on its merits, but she submitted that the decision was relevant to my consideration.

Mr Epstein

Mr Epstein responded that it had not been established that Mr Couch sustained a drug overdose when he was admitted to Nepean Hospital. The notes, when carefully perused, revealed that on balance there was only a suspected drug overdose and the applicant’s explanation should be accepted, corroborated as it was by the reference to his parents’ knowledge.
Mr Epstein addressed the submissions regarding the pain scale submissions made by Ms Compton. He analysed the medication prescribed by Dr Russo and submitted that the fluctuations recorded by him could not be described as satisfactory pain control. Mr Epstein suggested that the reason for the better pain scale results reported by Dr Russo in 2018 was because the reports of Dr Naaz revealed that Mr Couch was also self-medicating with cannabis at the time.
Mr Epstein also referred to the pain scale score given to Dr Murray in May 2019, which was 8/10 and that it was the medicinal cannabis that reduced the score back to 4/10. He also referred to the other scores reported by CA Clinic. Mr Epstein submitted that Mr Couch’s pain levels had fluctuated over the years since Dr Russo recorded the earlier pain levels, and that the evidence showed that with medicinal cannabis Mr Couch’s pain levels no longer fluctuate, and that they were reduced.
Mr Epstein referred to Dr Standen’s report, noting that she was the third pain specialist that Mr Couch had seen. He submitted that in 2020 Mr Couch was also under the care of other pain specialists, and indeed was still visiting the CA Clinic. He cited Mathew Clark v Secretary, Department of Transport [2020] NSWCC 2010 (Clark)in support of his submission that just because pain management has been recommended, it did not mean that medicinal cannabis was not necessary.
Mr Epstein answered Ms Compton’s reliance on Ms Kaluzny by pointing out that Ms Kaluzny was not discussing cannabis, she was discussing opioids in the passage Ms Compton relied on.
As to Ms Compton’s reference to a Jones v Dunkel inference because Dr Bodel’s report had not been lodged, Mr Epstein submitted that the issue of WPI was irrelevant. Mr Epstein also submitted that there was a rehabilitation plan for Mr Couch, and that in any event the respondent had not raised that issue in its s 78 Notice. He further submitted that the cost of the treatment was reasonable, and that no weight could be given to Mr Narayan’s letter. Mr Epstein concluded that the proposed treatment was “both reasonable and necessary.”

DISCUSSION

Section 60 of the 1987 Act provides relevantly:
“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.”
In Honarvar v Professional Painting AU Pty Ltd [2022] NSWPICPD 12, DP Snell considered the authorities regarding the interpretation of the term ‘reasonably necessary.’ He said from [32]:
“32. Burke CCJ dealt with the test of reasonably necessary in Rose v Health Commission (NSW).39 His Honour referred to the word ‘includes’ at the commencement of the definition in s 59 (see [30] above). His Honour noted that whilst the definition ‘purports to ‘include’ the matters thereafter enumerated, that definition is in fact exhaustive: Lamont v Commissioner for Railways [1964] NSWR 406; Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216.’ The ongoing relevance of Thomas, albeit in a different context, was confirmed in Pacific National Pty Ltd v Baldacchino.
33. His Honour, following a careful analysis of s 60, set out the following ‘general principles’:
‘In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1.Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.’
34. In Diab Roche DP dealt with the term ‘reasonably necessary’ in the context of s 60 of the 1987 Act. The Deputy President, applying Clampett v WorkCover Authority (NSW), said that the word ‘reasonably’ was used as a diminutive and moderated the effects of the word ‘necessary’ … reasonably necessary is a lesser requirement than ‘necessary’. The Deputy President concluded that matters relevant to the issue of ‘reasonableness’ included, but were not necessarily limited to, the matters raised in Rose at ‘5’ in the passage quoted immediately above. The Deputy President also observed, and I agree, that ‘each case will depend on its facts’.”
(Citations omitted).
It was not suggested that the proposed treatment infringed the terms of s 59 of the 1987 Act as to the definition of medical or related treatment. The issue in dispute was whether the prescription of medicinal cannabis was reasonably necessary, as that term has been defined by authority. Accordingly the presumption cited by DP Snell which I have reproduced above applies. That is to say, there is a prima facie presumption that the medical treatment is relevant treatment for the purposes of the Act, and thus presumed to be reasonable. The evidentiary onus then moves to the respondent rebut that presumption. DP Snell said at [162]:
“The test governing the recovery of expenses for medical or related treatment pursuant to s 60 is discussed above. The parties have proceeded on the basis, which I accept, that it is appropriate to apply the test described in Rose and Diab (see [33] to [34] above). In Diab Roche DP summarised the criteria going to ‘reasonably necessary’ as identified in Rose. The Deputy President said:
‘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’.
163. The Deputy President in Diab also said:
‘Reasonably necessary does not mean ‘absolutely necessary’. If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’ ….
And:
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.” (omitting citations).
A chronology of Mr Couch’s case is useful.
·        Mr Couch was born in 1991.
·        Teen years treated for ADHA (Dr Vickery), possibly with anxiety and depression (Dr Miniter).
·        Under medication between 6 and 16 years (Dr Miniter).
·        2014 under psychiatric care from Dr Naaz.
·        5 January 2016 – date of back injury.
·        18 March 2016 – referred to Dr Al Khawaja.
·        11 May 2016 – lumbar epidural injection with Dr Al Khawaja.
·        11 June 2016 – Dr Khawaja recommends referral for pain management.
·        3 August 2016 – seen by Dr Russo.
·        Ceased psychostimulant medication in September 2016 (Dr Vickery).
·        21 September 2016 – intradiscal pulsed radiofrequency and PRP injection therapy by Dr Russo.
·        24 October 2016 – admitted to St John of God Hospital.
·        11 November 2016 – Dr Naaz recommends treatment from a psychologist.
·        8 February 2017 – etanercept injection administered by Dr Russo at Norwest Private Hospital.
·        1 March 2017 – admission to Hawkesbury Hospital. Transferred to Nepean Hospital complaining of “confusion” since 26 February 2017. Admits smoking cannabis cones daily.
·        28 June 2017 – Dr Russo recommends home based exercise and ceases treatment.
·        11 September 2017 – Dr Naaz records that applicant “has been self-medicating with cannabis.” Dr Naaz reports that Mr Couch had ceased all medications and was exploring options of the prescription of medical cannabis.
·        2 July 2018 - Dr Naaz listed the medication regime available to Mr Couch, notes that he used them on an as needed basis due to side effects, and was self-medicating on cannabis. Referral to the Cannabis clinic for further evaluation and management.
·        September 2018 – commenced treatment at the Cannabis Clinic.
·        31 March 2020 – referred to Dr Ho for pain management by GP.
·        May 2020 – treatment halted due to cannabis induced hyperemesis.
·        8 October 2020 – recommendation by Mr McGrath that cannabis treatment cease because of Mr Couch’s hyperemesis. Pharmacist notes alternative products being started in coming weeks.
·        28 October 2020 – treatment resumed with vaping and wafer application.
·        24 March 2021 – Dr Needham recommends gradual reduction of treatment over six weeks.
·        9 June 2021 – s 78 Notice issued ceasing payment by insurer for treatment by medicinal cannabis, effective immediately.
·        27 September 2021 – Dr Standen proposed a treatment plan following the withdrawal of the insurer’s funding of the medicinal cannabis treatment.

Evidentiary issues

The respondent has endeavoured to rebut the above presumption by raising a number of evidentiary issues. Ms Compton submitted that the objective assessment of an injury was relevant to the issue of appropriateness, without identifying the authority to which she referred. With respect, I doubt that such a test exists in cases such as this. Dr Miniter was of the opinion that the subject injury was genuine in any case, but I note that both Dr Russo in August 2016, Dr Ho in March 2020 and Dr Nazha in November 2020 found that Mr Couch was catastrophising significantly, and accordingly the degree of objective orthopaedic opinion is of little relevance.
Ms Compton referred to the discharge summary from Nepean Hospital which she submitted revealed a substantial history of drug abuse. I agree with that submission. As at March 2017, when Mr Couch was 25 years old, he was clearly familiar with a variety of medications both legal and illegal. He had experience with amphetemines, opioids, benzodiazepine, alcohol abuse and was smoking cannabis cones daily. Whether it was deliberate or accidental, Mr Couch was in Nepean Hospital as a result of an overdose.
Whilst this conduct was reprehensible, and indeed the type of conduct that Dr Needham and Mr McGrath were concerned about in the prescription of cannabis to young persons, it does not suggest that Mr Couch was not suffering from a chronic pain condition. Having said that, it is certainly demonstrated that at that time, he was not a person who could be depended upon to approach his medication responsibly.
However, this conduct needs to be placed in its historical perspective. I note that Mr Couch, despite his chronic pain, has obtained work and continues his studies in psychology. This advancement in his situation is, as was expressed by Dr Vickery, to be applauded. Dr Vickery recorded that Mr Couch in fact completed year 12 in 2018. Dr Vickery reported:[41]
“Mr Couch completed Year 12 in 2018 and ‘I did much better than I expected, and I achieved a score of over 95 when I had never finished anything before and now I'm doing a university course and I've done two semesters.’
Mr Couch reported that "the first semester was about adjustment and I passed my subjects and for the second semester I figured out my study strategy and I can crunch a lot of information in a short period before the exams and I did previous exams and my marks were up in the credits and almost distinctions."
[41] Reply p 56.
There is no evidence that this change in Mr Couch had anything to do with the successful application of his medicinal cannabis treatment. However it is compelling evidence of a maturity hitherto not suspected. Dr Miniter recorded that Mr Couch left school at year 9. He started an apprenticeship which he did not finish, and had worked since as a labourer, doing further courses that he did not complete. He told Dr Miniter that he was studying psychology and was to begin a four week period as a medical receptionist “with the intention of returning to work…” He is still employed and still completing his university education.
It seems that Mr Couch came to the realisation when he achieved such good marks for his mature age HSC in 2018 that his potential was greater than he had hitherto realised.
This evidence redounds to Mr Couch’s credit – as indeed was acknowledged by Dr Vickery and Dr Needham. It reflects a maturity that was clearly not present prior to 2018 and accordingly his estimate in 2021 of the positive effect that he described from the proposed treatment has some weight. It was beneficial, and alleviated his pain.
Mr Couch did himself no favours by his somewhat cavalier appearance under cross-examination, but I do not think that his evidence is therefore to be discounted. It was corroborated by Dr Hiley, whose evidence I have no reason to doubt. I note that there have been no further incidents regarding the misuse of his medication since 2017, or of any further adverse effects since the resumption of treatment in October 2020 from the use of medicinal cannabis. I accept that his condition is regularly monitored by the CA Clinic practitioners.
Accordingly this attack on Mr Couch’s credit has not displaced the prima facie presumption that the treatment is reasonably necessary.
Ms Compton’s next submission as to Mr Couch’s reliability arose from the answers he gave in cross-examination. I did not think Mr Couch was “muddled up” when he retracted his answer that he took Palexia when he had taken too much cannabis. His alternative answer that he took Palexia when his pain was at such “heights” that the use of cannabis was ineffective, did not seem to me to have any connection between the two answers. It is more likely that he was not answering with any care, and was being somewhat cavalier towards the process. He also appeared to overlook the fact that he was not being prescribed cannabis when being treated by Dr Standen, although he may very well have sourced his own, as he said in his statement
The same criticism can be made of his answer as to the level of pain he had experienced when being treated by Dr Russo. His answer was a nonchalant estimate that was both incorrect, and again showed a lack of care about considering his answer. Again, however, the effect of these inconsistencies did not displace the fact that he had been under treatment for chronic pain since 2016 and that the use of medicinal cannabis was beneficial in the alleviation of the pain caused by that condition.

The Diab criteria

The first criterion in Diab concerns whether the treatment is appropriate. The evidence is persuasive that it is. Mr Couch stated that it improved his pain levels noticeably. He said that in the time it was not available, both when he was recovering from his hyperemesis during the two months he did not take it (I note that the contemporaneous evidence indicated that it was for a longer period, but nothing turns on this difference) and after it was no longer approved, that his back pain became “very bad” and his pain levels increased dramatically.
The improvement in pain levels whilst he had access to the medicinal cannabis was corroborated by Dr Hiley and Dr Vickery, and noted by Dr Standen.
As to the availability of alternative treatment and its potential effectiveness, Mr Couch 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.
He has undergone a lumbar epidural injection with Dr Al Khawaja on 11 May 2016, without any lasting relief. He had an intradiscal pulsed radiofrequency neurotomy with platelet rich plasma injection on 21 September 2016 with Dr Russo, which resulted in his admission to St John of God in a presyncopal state. He has undergone two Entracept injections with Dr Russo, the first on 8 February 2017 and the second at some indeterminate time not identified in the evidence. Mr Couch identified the date as ‘March 2017’ and linked it to his admission to Nepean Hospital, but I have some reservations about that assertion, as no mention of any procedure was made in the extensive notes within the discharge summary.
In any event, Mr Couch has also undergone ketamine infusion procedures. The first would appear to have occurred with Dr Russo following the second Entracept injection according to Mr Couch’s statement, and the second with Dr Nazha on 13 September 2021, which Mr Couch said made everything worse.
The prescription of alternative medications has not been effective. They were the subject of comment throughout the evidence. Dr Naaz listed the medication regime recommended by Dr Russo as 2 July 2018. To repeat, they were:
·        Endone;
·        Palexia;
·        Celebrex;
·        Voltaren;
·        Norspan patches;
·        Norflex;
·        Lyrica, and
·        Tramadol SR.
Mr McGrath’s list on 26 June 2020 showed:
·        Medicinal cannabis;
·        Endone;
·        Norflex, and
·        Diazepine.
Following the cessation of cannabis treatment due to the hyperemesis, Mr McGrath on 8 October 2020 listed:[42]
·        Somac Dose remains the same;
·        Norflex Dose remains the same;
·        Oxvcontin New medication;
·        Panadeine extra New medication;
·        Seroquel New medication, and
·        Diazepam New medication (not to continue).
[42] Reply p 84.
Dr Nazha on 17 November 2020 reported that Mr Couch was prescribed:
·        Medicinal cannabis;
·        Oxycodone;
·        Norflex, and
·        Endone.
Dr Standen in her report of 27 September 2021 noted that Mr Couch had withdrawn from oral opioid base medications and provision of ketamine infusion. Her treatment plan was for Mr Couch to be treated by a range of therapies that did not include medication, and I note Mr Couch’s reluctance to trial any further antidepressant therapy. Dr Standen recommended therapeutic treatment from both a psychologist and a new psychiatrist, and other treatment that did not involve the use of medication that caused adverse effects. This treatment plan was similar to that outlined by Dr Needham in his report of 24 March 2021.
I do not accept that a return to opiate medication is a viable alternative. Mr McGrath’s expert opinion was not supportive of such medication in his first report, and I was not convinced by his subsequent opinion that there should be a return to such medication when Mr Couch was recovering from his hyperemesis. The subsequent successful treatment, until it was withdrawn some eight months later, attests against Mr McGrath’s recommendation that it should cease. Mr McGrath was unaware that this treatment had continued, and his opinion is accordingly of little weight.
Neither do I think that the treatment plan advanced by Dr Standen was potentially more effective. She reported that Mr Couch stated[43]:
“..previous provision of medicinal cannabis, which provided significant benefit is no longer approved through WorkCover…”.
[43] ALD p 1.
Dr Standen did not otherwise comment, and I infer that she made her recommendations on the assumption that the treatment was not available. Mr Couch appears to have sourced his own cannabis, according to his answers in cross-examination.
Dr Needham’s view is also not persuasive. His opinion on 24 March 2021 that medicinal cannabis was unlikely to be a helpful medication in this situation was given in ignorance that such treatment had resumed on 28 October 2020. Further, his opinion that the treatment might “possibly” lead to adverse effects or dependence must be accepted as a generality. Adverse effects are likely with any medication, as Mr McGrath explained, but Mr Couch’s situation was monitored, and he had no further problems for the following eight months of treatment, a factor of which Dr Needham was unaware, and his opinion is according unhelpful. I find that the available alternative treatment has not had the potential to be as effective as the treatment by medicinal cannabis.
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.
The respondent submitted that the claimed amount of $384 per month was excessive and uncertain because the costs of the different cannabinoid products varied. It submitted that there was no plan by which the insurer could calculate its liability, and that the potential for the cost to be unreasonable was evident, as the treatment was open-ended.
The question was raised with Dr Nayak, as I have indicated, in his report of 20 October 2021. He quoted $65 per consultation which was to occur every three to six months depending on the stability of the patient. He said the costs of the “follow-ups” were subject to change based on “various factors in the market and changes to the AMA codes for billing.” He said that the cost of medication was not available from CA Clinics as it did not supply the products prescribed. Dr Nayak suggested that it was “best to follow-up with the supplier or the pharmacy…” He noted that the price will vary between pharmacies. He also stated that the duration of the treatment was “ongoing.” As indicated, Dr Hiley also stated in 2018 that the supply of medicinal cannabis was envisaged to be long-term medication into the foreseeable future, as they were for symptomatic relief. Dr Nayak expressed the duration of the proposed treatment in similar terms, saying it was a “symptomatic treatment, not curative.”
The medications and their cost were listed by the pharmacist Mr Narayam on 14 February 2022, which I have reproduced above. The amounts appearing within that quote are certainly higher than that claimed by the applicant. The wafer product was priced at $235.62 every fortnight; a product entitled “Solace” was priced at $739.95 every 10 days, and three bottles of “Rocky” cost $995 every fortnight. Ms Compton estimated that the monthly cost of this treatment was in the region of $4,681.09. Mr Epstein conceded that the open-ended nature of the treatment was potentially a problem, but he relied on the evidence in that regard, submitting that Mr Couch was under regular supervision.
In Clark Member John Isaksen accepted that the claim for the use of medicinal cannabis was reasonably necessary as it had improved the applicant’s response to pain and thereby alleviated the consequences of his injury (at [72]). The applicant in that case had been paying for his own medicinal cannabis since 2018.
As to the question of cost, Member Isaksen, referred to the opinion of the respondent’s pharmacist, that the respondent should not meet the cost of any further medicinal cannabis because there were “no clear pathways in terms of duration for this treatment and the applicant has had a past history of illicit use of cannabis. He also opines that the demand for high dose opioids and illicit substance abuse is more the result of established dependency rather than for pain relief” (at [42]).
It does not appear that the question of the actual cost was the subject of any more than general evidence, and Member Isaksen, made an order that the respondent should pay for the cost incurred by the applicant, but not for future treatment. The learned Member noted that if the applicant proposed to continue with the treatment then in the absence of approval from the respondent, he would need to make an application pursuant to s 60.
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 Mr Couch 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 Mr Couch required it. This is a problematic response, given that Mr Couch suffers from chronic pain. I have noted the opinion of three experts in pain management, all of whom stated that Mr Couch is catastrophising his injury, and that he is fearful of reinjury. There is accordingly no reliable evidence as to when, if ever, the applicant will recover from this condition.
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 Mr Couch,[44] and the evidence from Mr Nayaram 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.
[44] Reply p 85.
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.
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.
There is accordingly an award in favour of the respondent.

[2022] NSWPIC 153

11 April 2022