Faint v Elam Communications Pty Ltd - [2024] NSWPIC 377

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…

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 Faint v Elam Communications Pty Ltd

Details

AGLC: Faint v Elam Communications Pty Ltd [2024] NSWPIC 377
Case: [2024] NSWPIC 377
Decision Date: 12 July 2024

CaseChat Overview and Summary

Faint brought a claim against Elam Communications Pty Ltd for medical or related treatment expenses under section 60 of the Workers Compensation Act 1987. Faint argued that medicinal cannabis was reasonably necessary for his treatment, following injuries sustained at work. The respondent, Elam Communications Pty Ltd, contested the necessity of medicinal cannabis as a treatment expense. The court was required to determine whether medicinal cannabis could be considered reasonably necessary treatment under section 60 of the Act.

The court considered precedents including Diab v NRMA Ltd, Rose v Health Commission (NSW), and Bartolo v Western Sydney Area Health Service to evaluate the necessity of medicinal cannabis. It was established that medicinal cannabis could be considered reasonably necessary if it was essential for the treatment of the worker’s condition. The court found that, in Faint’s case, the provision of up to 2g of medicinal cannabis per day was reasonably necessary treatment, thus satisfying the criteria under section 60.

The court ruled in favour of Faint, confirming that the provision of up to 2g of medicinal cannabis per day was reasonably necessary medical treatment. This decision was based on the established criteria that treatment must be reasonably necessary and essential for the worker's condition. The court's decision aligns with the legal principles set out in previous cases and ensures that medicinal cannabis can be considered under section 60 when it meets the specified criteria.

Orders