Couch v Electus Distribution Pty Limited - [2022] NSWPIC 153

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Couch v Electus Distribution Pty Limited

Details

AGLC: Couch v Electus Distribution Pty Limited [2022] NSWPIC 153
Case: [2022] NSWPIC 153
Decision Date: 11 April 2022

CaseChat Overview and Summary

Couch, an applicant, sought a declaration that the supply of medicinal cannabis was reasonably necessary for his treatment under section 60(5) of the Workers Compensation Act 1987. The respondent, Electus Distribution Pty Limited, contested the claim on various grounds, including Couch’s past drug use, inconsistencies in his testimony, the appropriateness of alternative treatments, and the reasonableness of the costs involved. The case was heard in the Victorian Civil and Administrative Tribunal.

The central legal issues revolved around whether Couch's past drug use and inconsistencies in his cross-examination were relevant to the current claim for medicinal cannabis, and whether the tribunal could conclude that the treatment was reasonably necessary given the evidence presented. The tribunal also had to consider whether alternative treatments were appropriate and whether the costs of the proposed treatment were reasonable. The Honavar decision was pivotal in shaping the tribunal's approach to these issues, particularly regarding the presumption of reasonableness of treatment and the impact of credit issues on that presumption.

The tribunal found that the presumption that the treatment was reasonably necessary was not rebutted by Couch's past conduct or the inconsistencies in his evidence. Despite Couch's past drug use and the cavalier nature of his answers during cross-examination, the tribunal concluded that the evidence established the effectiveness of the treatment. Couch had been treated with injections, opioid medications, and psychological counselling, none of which had been effective. The tribunal determined that the costs of the proposed treatment were open-ended and uncertain, which influenced their decision. Consequently, the tribunal awarded the costs to the respondent.

The final orders reflected the tribunal's reasoning, denying the applicant’s claim for a declaration that the supply of medicinal cannabis was reasonably necessary and ordering the applicant to pay the costs of the proceedings.

Orders