Faint v Elam Communications Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Faint v Elam Communications Pty Ltd [2024] NSWPIC 377
APPLICANT:	Michael Faint
RESPONDENT:	Elam Communications Pty Limited
MEMBER:	Mitchell Strachan
DATE OF DECISION:	12 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60 medical or related treatment expenses; whether medicinal cannabis is reasonably necessary; Diab v NRMA Ltd, Rose v Health Commission (NSW) and Bartolo v Western Sydney Area Health Service considered; Held – the provision of up to 2g of medicinal cannabis per day is reasonably necessary medical treatment pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The provision of up to 2g of medicinal cannabis (T25 Topas flower (25% THC)) per day, is reasonably necessary medical treatment pursuant to s 60 of the Workers Compensation Act 1987. 2. The respondent is to meet the cost of up to 2g of medicinal cannabis (T25 Topas flower (25% THC)) per day from 22 December 2023.

STATEMENT OF REASONS

BACKGROUND

Michael Faint, the applicant in these proceedings, makes a claim for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) for the continuation of medicinal cannabis for chronic pain.
The treatment is referred at times as CBD oil however the treatment recommended by the prescribing doctor is in fact “T25 Topas flower (25% THC)”. I have referred to the treatment sought as medicinal cannabis in these reasons.
It is accepted that due to the nature and conditions of the applicant’s employment with the respondent he sustained injury to his back and neck.
As a result of these injuries, the applicant came to cervical and lumbar spinal fusion procedures. He has ongoing pain and disability resulting from these injuries.
On 26 April 2022 the applicant was awarded lump sum compensation pursuant to s 66 of the 1987 Act with respect to 44% whole person impairment with respect to these injuries.
The claim for continuing medicinal cannabis treatment was declined by the respondent’s insurer and the applicant has now commenced the present proceedings in the Personal Injury Commission (Commission).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the provision of medicinal cannabis is reasonably necessary treatment pursuant to s 60 of the 1987 Act including both the reasonable necessity of the treatment sought and the regime.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration hearing before me on
24 June 2024 conducted by MS Teams.
The applicant was represented by Mr Morgan of counsel, instructed by Ms Alawie of Law Partners. Mr Grimes of counsel appeared for the respondent, instructed by
Ms Semaan of McCabes. Ms Sarhene attended on behalf of the respondent’s insurer, EML.
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

Oral evidence

Neither party sought leave to adduce any oral evidence or cross-examine any witness.

Documentary evidence

The following documents were in evidence before the Commission:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents and attachments filed by the respondent.
There was significant documentary evidence before the Commission, particularly attached to the ARD, which was not relevant to the limited issues agreed to be in dispute between the parties. At the commencement of the arbitration hearing, I reminded counsel of the need to refer in submissions to that evidence which was relevant to my consideration of the issues in dispute.
In Gamestar Pty Ltd v Lockhart (1993) 112 ALR 623 (Gamestar) the High Court observed that a Court is not required to “search for supportive evidence” in support of a claim. The High Court stated:
“In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. Gaudron J was correct in holding that there was no denial of natural justice.”
These observations have been applied in the Workers Compensation Commission (see for example Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 at [208]; Carter v Star Track Express Pty Ltd [2015] NSWWCCPD 60 at [34] and in the Commission Sara v G&S Sara Pty Ltd [2021] NSWPIC 286). The principle is otherwise consistent with the objectives of the Personal Injury Commission Act 2020 (PIC Act) which provide that the Commission is to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible” (s 3, PIC Act).
I otherwise observe that the Commission has a statutory obligation to provide a “brief statement of reasons”.
Consistent with the observations of the High Court in Gamestar, in determining the issues in dispute, I have confined my consideration to the evidence referred to by the parties during submissions.

Applicant’s evidence

The applicant relies on two statements. Much of the latter part of the initial statement is better categorised as submissions on the available medical evidence rather than direct evidence of the applicant.
In his first statement dated 10 January 2024 the applicant states that due to the nature and conditions of his employment with the respondent he sustained injury to his cervical and lumbar spine. Due to this injury he underwent C5/6 and C6/7 cervical discectomy in September 2019 and lumbar discectomy and fusion procedure in July 2020. Following the surgical procedures his neck improved and his back pain lessened but he continued to feel burning sensations in both feet.
The applicant states in March 2022 he was assessed by Medical Assessor Berry and ultimately a certificate of determination was issued by the Commission with respect to 44% whole person impairment with respect to his injuries.
In April 2022 the applicant states he told his general practitioner Dr Marcus, that he had stated taking cannabis oil and was feeling positive responses to medicinal cannabis. He states that between December 2022 and June 2023 Dr Marcus consistently certified him as having no work capacity and expressed concerns about excessive CBD intake.
The applicant states that when he saw Dr Hardy in September 2023, he detailed his current symptoms which included recurrent neck pain radiating to his right shoulder, temporary numbness in his right hand upon waking, occasional left arm numbness and muscle responses triggered by movements.
The applicant states that the use of medicinal cannabis has been more beneficial than other medications for managing pain as well as improving sleep. Prior to using medicinal cannabis his sleep quality was poor and he now sleeps soundly for 8 to 10 hours. He stated that other medications and opioids barely affected his pain.
In his second statement dated 22 April 2024, the applicant states that he needs to use medicinal cannabis to have a basic quality of life.

Medical evidence

Medico-legal reports

The applicant relies on the opinion of Dr Mark Hardy dated 27 September 2023.
Dr Hardy holds a Bachelor of Medicine, Bachelor of Surgery. He has undertaken specialist training necessary for admission as both a Fellow of the Royal Australian College of General Practitioners and the Australasian Chapter of Addiction Medicine of the Royal Australasian College of Physicians. He describes his specialisation as “Addiction Medicine, Dual Diagnosis, Acquired Brain Injury”.
Dr Hardy noted the history of the onset of symptoms in the cervical and lumbar spine and subsequent surgical treatment which is not controversial.
Dr Hardy noted the applicant’s symptoms at the time of his assessment included:
i)     recurrent pain in his neck, radiating to the right shoulder;
ii)     waking up with a “dead” right hand, extending up to the elbow, resolving over the first hour of waking;
iii)    occasional left arm deadness, which resolves within 5 minutes;
iv)    spontaneous left finger flexes when he flexes left foot;
v)     band-like nociceptive pain across the lumbosacral spinal region, aggravated by sitting for long periods;
vi)    frequent ache down the left leg, through the buttock to the knee;
vii)   occasional ache down the right leg, through buttock to thigh (like someone is driving a screwdriver through his back);
viii)     numbness in his feet, and
ix)    neuropathic pain from both knees through to the feet.
Dr Hardy also took a history of past medication use. With respect to Targin, the applicant reported “I hated it, I was awful on it”. It was noted to cause depression and suicidal ideation. With respect to Lyrica the applicant reported “I was going a bit nutty”. “I felt goofy all the time”. “I was off the planet”. It was noted to cause cognitive impairment.
With respect to self-reported pain levels, the applicant reported to Dr Hardy that his worst pain was 9-10/10 whereas when on medicinal cannabis the pain at worst was 7-8/10 and at best was 0/10. While on medicinal cannabis the applicant was able to mobilise, was less dear avoidant and had significantly improved sleep.
Dr Hardy took a history that the cannabis use was not interfering with social, family or interpersonal responsibilities and the applicant did not feel that there was a need to cease it.
Relevantly, Dr Hardy considered the applicant was suffering from failed spinal surgery syndrome with chronic nociceptive and neuropathic pain. He considered the applicant’s prognosis to the ‘guardedly poor’. He noted he had had a substantial trial of traditional medications which provided either no benefit or minimal benefit with considerable cognitive impairment.
Dr Hardy expressed the opinion that he agreed with Dr Nayek’s treatment of the applicant with medicinal cannabis and did not see a need to desist with it. He considered it was helping with the applicant’s chronic pain and did not agree that it was being abused or misused.
Dr Hardy noted that most available and potentially helpful alternative treatments had been tried without success or with unacceptable side effects. He considered the medicinal cannabis had a reasonable potential benefit for the applicant.
Dr Hardy noted that while medicinal cannabis is not suitable to all patients, it is within the range of helpful treatments for the applicant. He noted the cost of the treatment was approximately $400 to $800 per month. While various bodies, including the Faculty of Pain Medicine, RACP, has published opposition statements it remains widely prescribed by many pan specialists, physicians, psychiatrists and general practitioners and the use of medicinal cannabis for chronic non-cancer pain is supported by a body of medical literature.
Dr Hardy did not consider the applicant met the diagnostic criteria for cannabis use disorder and considered ongoing treatment was entirely appropriate.
He considered the dosage was within the normal range for patients using inhaled cannabis.
The respondent relies on the opinion of Dr David Gorman. Dr Gorman holds a Bachelor of Medicine, Bachelor of Surgery and Bachelor of Science (Medical Science). He has undertaken specialist treating necessary for admission as a Fellow of both the Royal Australasian College of Physicians and the Faculty of Pain Management of the Australian and New Zealand College of Anaesthetists. He describes his specialisation as ‘Pain Specialist, Consultant General Physician and Medical Oncologist’.
Dr Gorman provided an initial report to the respondent’s insurer dated 14 December 2022.
Dr Gorman noted the history of cervical and lumbar fusion surgery. He noted that following the cervical fusion surgery in December 2019 the applicant tried some illicit cannabis and he began with Cannatrek around February or March 2022.
Dr Gorman recorded that the applicant continued to experience low back and neck pain with pain in both legs. The applicant was only taking cannabis now, at up to 4g per day which he either vaporises or smokes.
Dr Gorman noted the applicant had previously taken Targin, Lyrica and Voltaren.
Dr Gorman noted the applicant had ongoing pain following a cervical and lumbar fusion. He did not consider that the medicinal cannabis had improved his function and that his dosage was escalating, consistent with a psychoactive and addictive compound.
He was concerned that the applicant was using the medicinal cannabis to treat a substance abuse disorder rather than the work injury with only limited improvement in his symptoms and function.
Dr Gorman noted that the use of medicinal cannabis is not supported for chronic pain by either the Faculty of Pain Medicine or the International Association for the Study of Pain.
Dr Gorman does however concede that the Therapeutic Goods Administration accepts chronic pain as an indication for medicinal cannabis.
Dr Gorman considered that the applicant had had extensive treatment over a long period and should now be self-managing his pain with exercise and modest doses of analgesics. He recommended the applicant gradually ween himself off the medicinal cannabis and recommended support from a psychologist or psychiatrist with expertise in substance abuse disorders.
Dr Gorman provided a second report dated 9 March 2023 in which he sets out a recommended process for weening the applicant off medicinal cannabis including a monthly reduction of 20-30%, reintroduction of Targin and guidance from a psychiatrist or drug and alcohol expert.
Dr Gorman provided a third report dated 13 June 2024. Dr Gorman confirmed his view that the applicant had developed a cannabis use disorder which was interfering with his recovery and required treatment. He noted that in the long term the applicant will require pharmacologic treatment for his chronic pain together with an active self-managed exercise program. He also recommended consideration of spinal injections, blocks and spinal cord stimulator.
Dr Gorman accepted that ongoing pain following fusion surgery can be prolonged and severe.
Dr Gorman maintained his view that the applicant’s trial of medicinal cannabis had not demonstrated any significant improvement overall in the applicant’s symptoms or capacity.
Dr Gorman referred to a paper by Danielle Dawson which found that around 25% of people that use cannabis for medical reasons were estimated to have a cannabis use disorder.
Dr Gorman concedes that cannabis use disorder is best diagnosed by a psychiatrist or Drug and Alcohol specialists but considered he had reasonable knowledge in the area.

Treating medial evidence

The applicant’s treating general practitioner, Dr Bishoy Marcus, provided a report to the respondent’s insurer dated 31 March 2023. He records that he had tried speaking with the applicant about his medicinal cannabis use, but he was totally unreceptive. He had not been able to speak with the medicinal cannabis prescriber. He agreed with Dr Gorman that the applicant’s medicinal cannabis intake was excessive however acknowledged he had limited experience in the area. He was not comfortable helping the applicant wean off the medicinal cannabis as he had no training in the area. He recommended a multidisciplinary team to assist the applicant with his medicinal cannabis addiction. He provided a referral to Dr David Ward, addiction psychiatrist. He was otherwise at a loss as to where to go with the applicant.
The clinical records of Dr Marcus (Myheath Edmonson Park) are also in evidence.
Dr Marcus first saw the applicant on 13 October 2021. He noted a very complex medical history with prior cervical and lumbar fusions and marked pain.
On 27 April 2022, Dr Marcus recorded that the claimant was on cannabis oil from treating nurse practitioner and was overall stable.
On 2 November 2022, Dr Marcus recorded a conversation with a case manager. The applicant is apparently sending her $800-$900 worth of receipts for medicinal cannabis every 8-9 days. Dr Marcus advised was excessive but unable to get through to clinic that is prescribing.
On 12 December 2022, Dr Marcus recorded that the applicant is managing ok overall and on medicinal cannabis helping him manage his pain.
On 27 January 2023, Dr Marcus recorded a case conference with respondent’s insurer. Noted that pain specialist had advised medicinal cannabis not warranted and that the applicant had an addiction, using at least 4g daily.
On 1 February 2023 the applicant consulted Dr Marcus seeking clearance to drive.
Dr Marcus was unable to provide this due to the amount of medicinal cannabis he was smoking and safety concerns with driving.
On 10 March 2023 Dr Marcus recorded there was no change in the applicant’s condition, and he continued with chronic pain. He was still on a high dose of cannabis.
On 1 April 2023, Dr Marcus wrote to the applicant explaining that the insurer wanted to stop paying for medicinal cannabis products and that ongoing use was not supported by
Dr Gorman. He details the concerns with sudden cessation due to the very high dosage but that he was unable to support weaning the applicant due to lack of specialist training and experience but he had provided a referral to an addiction medicine specialist.
Dr Ashish Nayak provided a brief report dated 11 April 2024. Dr Nayak is one of the doctors responsible for the prescription of the medical cannabis to the applicant. The report confirms that the applicant has a medical condition, being chronic low back pain, and is on prescription based medicinal cannabis. The prescription is recorded as T25 Topas flower (25% THC) with a dosage of 1-2g before bed. He records that the applicant is doing well on medical cannabis for his chronic pain and that he intends to review the applicant every 3-6 months.
The records of Phenix Health are also before the Commission and were referred to during submissions. Practitioners are Phenix Health are responsible for prescribing medicinal cannabis to the applicant.
The records are of very limited assistance as the notations are brief and are all dated
8 April 2024, presumably the date on which they were extracted. The notes generally record the prescription of T25 Topez Flour and note chronic pain. One notation however by a
Dr Adem suggested the applicant was demanding 10 repeats and recorded a diagnosis of anxiety, mood disorder and ADHD.

SUBMISSIONS

The submissions of the parties during the arbitration hearing were recorded and I will not repeat each of the arguments of counsel in these reasons however the key issues are summarised below.

Applicant’s submissions

The applicant submitted that the dispute, based on the opinion of Dr Gorman, could not stand where the basis for Dr Gorman’s opinion, being that the applicant required assistance to ween himself from medicinal cannabis before it being discontinued by the insurer had not been met.
The applicant submitted that medicinal cannabis is reasonably necessary treatment for the applicant’s condition pursuant to s 60 of the 1987 Act with reference to the analysis and principles set out in Diab v NRMA Limited [2014] NSWWCCPD 72.
The applicant submitted that I should have regard to his own statement evidence, setting out his account of the benefits of medicinal cannabis, including in comparison to other treatment, particularly opioid analgesics such Targin.
The applicant referred to the opinion of Dr Mark Hardy and submitted that I would prefer his opinion over that of Dr Gorman. The applicant submitted Dr Hardy is an addiction medicine specialist whereas Dr Gorman is a pain management specialist and oncologist.

The applicant submitted that it was Dr Hardy’s opinion that the applicant did not suffer from a substance use disorder and further that the treatment being provided was appropriate and provided therapeutic benefit and should be continued.
The applicant submitted that Dr Hardy considered the cost of the treatment with medicinal cannabis was appropriate in comparison with other treatment and the benefit obtained.
The applicant submits that Dr Hardy does not consider the applicant needs to be weened off the medicinal cannabis as recommended by Dr Gorman. The fact that the treatment is working is evidence of itself that the treatment is appropriate. Dr Hardy is more than comfortable with the applicant’s ongoing use of medicinal cannabis and that he suffers from a significant disability which resulted in an assessment of 44% whole person impairment.
The applicant submits that there is no conclusive evidence that the applicant is abusing or misusing his medicinal cannabis and that where other treatment modalities have been exhausted there is a place for the use of medicinal cannabis and the benefits of the treatment speak to its reasonableness.
The applicant submitted that where the treatment is providing a benefit, it was not necessary for the treatment to be 100% effective for it to be reasonably necessary.

Respondent’s submissions

Whereas the applicant submitted that the treatment plan to ween the applicant off the medicinal cannabis was never provided by the respondent’s insurer, the respondent submits that the applicant never came to the respondent’s insurer seeking approval for treatment to cease his medicinal cannabis use.
The respondent submits the claim is vague and lacks specificity, including with respect to the ongoing cost and that the supporting evidence of Dr Nayak also lacks specificity.
The respondent submits that there is evidence from treatment providers that they are concerned with the applicant’s apparently increasing intake of cannabis however the respondent submits there is no meaningful evidence from the treatment providers who are prescribing the medicinal cannabis to support the claim.
The respondent submits that the note of Dr Adem (from within the records of Phenix Health) is suggestive of drug seeking behavior which is consistent with the opinion of Dr Gorman that the applicant has a substance use disorder.
The respondent submits the records of Phenix Health offer no comfort nor support for the claim and there should be a report from a treatment provider who is prescribing the medicinal cannabis.
When asked specifically during submissions if I should draw an inference from the lack of evidence from the prescribing doctor, the respondent submitted that the claim brought in the ARD has no medical support for it and that I would not be satisfied that the applicant has met his onus in establishing entitlement to the treatment sought.
The respondent submitted that I should accept the opinion of Dr Gorman as it is supported by the history taken by the general practitioner and Dr Adem.
The respondent submits, based on Dr Gorman’s opinion, that the medicinal cannabis is not an effective treatment, that alternative treatments are available and the cost is more than other pharmaceutical options (noting records that the applicant is submitting invoices at more than $900 per fortnight).
The respondent submits that I would not be satisfied that the use of medicinal cannabis is reasonably necessary, and that the applicant has not met his onus with respect to the claim made.

Applicant in reply

The applicant clarified that the treatment sought was ongoing use of medicinal cannabis, as recommended by Dr Nayak in his report of 11 April 2024.
The applicant submitted in reply that the dispute raised in the dispute notice was not with respect to the use of medical cannabis but rather ongoing use was denied based on the opinion of Dr Gorman. If the pre-conditions of Dr Gorman’s opinion had not been reached (that is a medically supervised withdrawal) then the dispute must fail.

FINDINGS AND REASONS

The initial dispute notice issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) disputes liability for the continuous usage of medicinal cannabis on the basis that it is not reasonably necessary treatment as required by s 60 of the 1987 Act. The decision is made with reference to the opinion of Dr Gorman. The applicant sought a review of the initial decision to dispute liability. The decision was confirmed on review with a further notice issued on 29 November 2023.
The applicant bears the onus of proving that the medical treatment claimed is reasonably necessary. The relevant test for establishing reasonable necessity is set out in the decision of Deputy President Roche in Diab. In that matter, the Deputy President cited with approval the test articulated by his Honour Judge Burke in Bartolo v Western Sydney Area Health Service [1997] 14 NSWCCR 233. Thus, treatment will be considered reasonably necessary if the Commission finds that it is preferable that the worker should have the treatment than it be forborne.
Considerations relevant to deciding whether treatment is reasonably necessary include, but are not limited to, the appropriateness of the treatment, the availability of alternative treatment and the potential effectiveness of the alternative, the cost of the proposed treatment, the actual potential effectiveness of the proposed treatment and the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
In Diab, Roche DP also noted that the word “reasonably” operates to qualify the effect of “necessary”, such that the injured worker does not need to prove the treatment is absolutely necessary.
There is no dispute that the applicant sustained injuries to his cervical and lumbar spine and has undergone significant surgical procedures which have left him with ongoing chronic pain.
It is the applicant’s evidence, supported by the opinion of Dr Hardy (who records that pain can reduce at times to 0/10 when using medicinal cannabis), the limited notes of Phenix Health and the records of Dr Marcus, that the use of medicinal cannabis has reduced the level of pain experienced by the applicant and have had a significant impact on the quality of his sleep.
I accept the applicant’s evidence that the use of medicinal cannabis is providing significant pain relief. Pain relief is a sufficient basis for treatment to be reasonably necessary, it is not necessary that the treatment leads to a considerable increase in function or increase in capacity for employment for it to be reasonably necessary.
While Dr Marcus’s notes record the applicant’s subjective views as to reduction in pain, he holds concerns as to the extent of use of medicinal cannabis. These concerns do not appear to be of independent origin but rather came about once concerns were raised by a claims officer employed by the respondent’s insurer and reinforced after being provided with
Dr Gorman’s initial report.
While Dr Marcus may have formed a view that the applicant’s use of medicinal cannabis is excessive, he concedes himself that he is not experienced in the area and appears to largely adopt the position of Dr Gorman. This is not a criticism of Dr Marcus and it is a mainstay of medical practice for a generalist to defer to a specialist. While I accept the history of complaints and benefits recorded by Dr Marcus, I am unable to put any independent weight on his opinion that the applicant’s use of medicinal cannabis is inappropriate. Dr Marcus does however accept in April and December 2022 that the applicant’s condition was stable and the medicinal cannabis was providing some benefit. I accept this as contemporaneous evidence of the benefit and symptom relief experienced by the applicant while using medicinal cannabis.
Dr Gorman, adopting the position of the Faculty of Pain Medicine and the International Association for the Study of Pain, does not consider medicinal cannabis is appropriate for treating chronic pain. Dr Gorman considered the applicant was using medicinal cannabis to treat a substance disorder rather than the underlying chronic pain.
Dr Hardy does not consider the applicant has developed a substance disorder. Further,
Dr Hardy expressed the opinion that the applicant has experienced significant benefit in reduction of pain when using medicinal cannabis without the side effects experienced while using traditional opioid analgesics.
In respect of the assertion that the applicant is suffering from a substance disorder, having regard to their training and experience, I prefer the opinion of Dr Hardy, having undertaken specialist training for admission as a Fellow of the Australasian Chapter of Addiction Medicine over that of Dr Gorman who has conceded that a diagnosis of cannabis use disorder would be best made by a psychiatrist or drug and alcohol specialist. I infer from his fellowship of the Australasian Chapter of Addiction Medicine that Dr Hardy is a drug and alcohol specialist. This was put to me in submissions by the applicant and no counter submission was made by the respondent. For these reasons, I do not accept on the evidence before me that the applicant is suffering from a substance use disorder.
I am concerned by the lack of communication between those prescribing the medicinal cannabis and the applicant’s primary care providers. The applicant would clearly be assisted by a multidisciplinary and holistic approach to his ongoing care and pain management.
While the lack of meaningful evidence from Dr Nayak or another professional responsible for the prescription of medicinal cannabis on its own, would weigh against a finding that the applicant has met his onus in establishing the treatment sought is reasonably necessary, I am assisted by the comprehensive report of Dr Hardy.
Whilst I accept that the treatment is somewhat novel, having regard to the report of Dr Hardy and his training and experience which I have set out above, I accept that the applicant has and will continue to obtain some relief from the use of medicinal cannabis. It is not necessary for the applicant to demonstrate that the proposed treatment will provide a complete cure.
The potential effectiveness of the treatment must also be weighed against the position in which the applicant currently finds himself. He is in a great deal of pain, and has undergone both surgical and conservative treatment which has not resolved his pain. He states, and I accept, that the pain in his cervical and lumbar spine has improved with the use of medicinal cannabis. The use of medicinal cannabis has provided at least partial relief of the applicant’s symptoms and improvement to his quality of life, including sleep. I believe the applicant should have the opportunity to experience such demonstrated improvement.
For these reasons, I accept that the use of medicinal cannabis is appropriate treatment for the applicant’s condition and it has proven to be effective at reducing pain.
With respect to potential alternatives, traditional opioid analgesics have been trialed but resulted in unsatisfactory side effects. While other alternatives such as spinal blocks or a trail of a spinal cord stimulator have been suggested by Dr Gorman, these has not been explored by his treatment providers and it is not suggested they would be more effective than the use of medicinal cannabis. The availability of alternatives on their own does not weigh against medicinal cannabis from being one of a number treatment options which may meet the requirement of being reasonably necessary.
With respect to the cost of the proposed treatment, the respondent submits that this is not clear, with a range provided of $400 to $800 per month. The respondent takes issue with this range. I note however that this range mirrors the dosage range recommended by Dr Nayak of 1-2g per day.
There is a suggestion in the material before the Commission that the applicant may have been seeking reimbursement for more than this amount. That would not be appropriate nor supported by the report of Dr Nayak as the prescribing doctor. It is for this reason that I have not made a general order but have limited the award such that it mirrors Dr Nayak’s recommendation.
Dr Hardy otherwise considered the cost comparable with other analgesic medication.
Given the benefits that I have found the applicant experiences from the use of the medical cannabis, without the side effects he has experienced with more typical pain relief pharmacology, I do not consider a cost of $400 to $800 per month to outweigh the other benefits, even if more expensive than other analgesic medication, particularly given the side effects the applicant states he experienced.
Finally, it is evident that the use of medicinal cannabis for the treatment of non-cancer related chronic pain is controversial. It is not supported by Faculty of Pain Medicine within the Royal Australian College of Anaesthetists or the International Association for the Study of Pain. The Therapeutic Goods Administration accepts chronic pain as an indication for medicinal cannabis use. Dr Hardy in his reports has referred to a body of evidence that is supportive of its use.
I note the comments of Burke CCJ in Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 (Rose) at paragraph 47:
“Obviously the more widely used a particular regimen is in relation to the particular condition, the more likely it is to be a reasonable necessity. The converse also applies. However, all therapies must have a beginning. Medicine is an evolving field. Pasteur's antisepsis was not quickly and unanimously embraced by the profession of his era. Novelty, per se, may weigh against necessity but certainly does not exclude it. Necessity is, in the end, an empirical evaluation. If, after all, orthodox regimes have been ineffective or, even before they have been tried some radical new treatment which is perhaps disparaged by the medical profession at large, is tried and does work in the case of a particular patient with a particular problem, then it seems to me there may be some difficulty in saying it was not necessary. In medicine, as in other fields, the unorthodoxy of yesterday can be the orthodoxy of tomorrow. That may still leave its position today ambivalent but, speaking of the good trees, it is said: ‘By their fruits shall ye know them’.”
While controversial, I accept that the use of medicinal cannabis in these circumstances is supported by a body of evidence and is widely prescribed for conditions such as the applicant’s.
After considering all of the medical evidence, the applicant’s symptoms and the submissions from both parties, I consider that, the provision of medicinal cannabis, as recommended by Dr Nayak, is reasonably necessary treatment pursuant to s 60 of the 1987 Act.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 377

12 July 2024