French v Harwood Slipway Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	French v Harwood Slipway Pty Ltd & others [2022] NSWPIC 473
APPLICANT:	Riley Terrence French
RESPONDENT:	Harwood Slipway Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	25 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claims for injuries to back and legs; claim for treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); medicinal cannabis; consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the prescription of medicinal cannabis is reasonably necessary medical treatment as a result of the injury to the applicant’s back on 20 July 2009 which arose out of or in the course of his employment with the respondent; Honarvar v Professional Painting AU Pty Limited, Rose v Health Commission, Diab v NRMA Limited and Murphy v Allity Management Services Pty Limited considered; Held — the prescription of medicinal cannabis is recently necessary medical treatment so long as approval is obtained from the Therapeutic Goods Administration as a result of the applicant’s back injury; the evidence only allows the Commission to order payment for the costs of and incidental to the applicant being prescribed with medicinal cannabis into the future for a period of 73 days; award that the respondent pay the applicant’s past section 60 of the 1987 Act expenses in relation to the prescription of medicinal cannabis; award that the respondent pay the applicant’s future section 60 of the 1987 Act expenses for 73 days in relation to the prescription of medicinal cannabis; no orders or findings made regarding the applicant’s future section 60 of the 1987 Act expenses in relation to the prescription of medicinal cannabis beyond the period of 73 days.
determinations made:	The Commission determines: 1. The prescription of medicinal cannabis (Arizer Solo II Vapouriser Inhalation Device, Beacon Medical THC+F Flower 20% THC Sensi Star Indica Dried Herb, LGP Classic 20:5 Oil, and MGC MP 1:1 Oil) to the applicant as referred to in the reports from Dr Adams dated 19 October 2020 and 5 January 2021, is reasonably necessary medical treatment (so long as approval is obtained from the Therapeutic Goods Administration) as a result of the applicant’s back injury, which arose out of or in the course of his employment with the respondent on 20 July 2019. 2. The Commission only has evidence before it to allow it to order payment for the costs of and incidental to the applicant being prescribed with medicinal cannabis (as described above) into the future for a period of 73 days – if the applicant requires this prescription for a longer period, he will need to make an appropriate claim upon the respondent in this regard – the Commission currently makes no determination regarding the applicant’s entitlements following the relevant period of 73 days. The Commission orders: 1. The respondent is to pay to the applicant an amount of $1,770 (with credit to be given to the respondent for any amounts already paid), pursuant to s 60 of the Workers Compensation Act 1987, in relation to the receipts attached at pages 546-548 of the Application to Resolve a Dispute. 2. The respondent is to pay for the costs of and incidental to the applicant being prescribed with medicinal cannabis (as described above and subject to the obtaining of approval from the Therapeutic Goods Administration) for a period of 73 days, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Riley French (the applicant) is 33 years old. He was employed by Harwood Slipway Pty Limited (the respondent) from around November 2008 to around August 2009. He worked for it as an apprentice boat builder.
He injured his back during his employment with the respondent on 20 July 2009. He had some time off work, for which he received weekly compensation benefits. He then worked for various other employers until 18 June 2019, but has not worked since.
The respondent has accepted that the applicant sustained a back injury on 20 July 2009, which arose out of or in the course of his employment pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), and it has also accepted that his employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act. The respondent continues to make weekly compensation payments to the applicant as a result of his incapacity for work since 18 June 2019. The respondent and the applicant also entered into a complying agreement around January 2011, by which the respondent agreed to pay lump sum compensation to the applicant pursuant to s 66 of the 1987 Act on the basis that he had sustained 5% whole person impairment as a result of the injury.
One of the applicant’s current treating doctors, Dr Adams, has recommended to the applicant that he be prescribed with medicinal cannabis to treat his back injury. Specifically, she has prescribed the following:
(a)    Arizer Solo II Vapouriser Inhalation Device;
(b)    Beacon Medical THC+F Flower 20% THC Sensi Star Indica Dried Herb;
(c)    LGP Classic 20:5 Oil, and
(d)    MGC MP 1:1 Oil.
In these reasons, when I refer to medicinal cannabis, I will be referring to the prescription of these items by Dr Adams.
The respondent issued a notice denying liability for the prescription of the medicinal cannabis, under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 23 November 2020. It has since issued further notices confirming its denial of liability in this regard, dated 7 May 2021 and 1 December 2021. It disputes that the prescription of the medicinal cannabis is reasonably necessary treatment for the applicant as a result of the 20 July 2009 injury, pursuant to s 60 of the 1987 Act.
By way of an Application to Resolve a Dispute (the ARD) filed with the Personal Injury Commission (the Commission), the applicant requests an order that the respondent pay for the costs of and incidental to the prescription of the medicinal cannabis recommended by Dr Adams in accordance with s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties therefore agree that the issue in dispute in the Commission proceedings is:
(a) whether the prescription of medicinal cannabis recommended by Dr Adams is reasonably necessary medical treatment as a result of the injury to the applicant’s back on 20 July 2009, which arose out of or in the course of his employment with the respondent.

PROCEDURE BEFORE THE COMMISSION

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.
A conciliation conference was held in the dispute on 1 July 2022. On that occasion, Mr Hickey of counsel appeared for the applicant, instructed by Mr Langler, and Ms Compton of counsel appeared for the respondent, instructed by Ms Davis. The applicant was present, as was a representative from the respondent’s insurer, Mr Gore-Lenskyj.
At the commencement of the conciliation conference, the ARD also:
(a)    made claims against five additional respondents (the initial second respondent-sixth respondent) to Harwood Slipway Pty Limited (the initial first respondent);
(b)    made a claim for weekly compensation benefits, and
(c)    made claims for injuries alleged on 16 May 2018, 3 October 2018, and 25 March 2019.
Ms Compton also appeared on behalf of the second and third respondents, and Mr Doak appeared on behalf of the fourth, fifth and sixth respondents.
During an extensive conciliation, the applicant eventually decided to withdraw the claims referred to at paragraph 10 above, leaving the dispute referred to at paragraph 7 above as the only dispute to be determined by the Commission. The respondent initially objected to this withdrawal, and due to time constraints on 1 July 2022 as well as the need for the respondent’s legal representatives to determine whether they were conflicted, the dispute was listed for a further preliminary conference on 5 July 2022.
At the preliminary conference, the respondent withdrew its objection to the withdrawal proposed by the applicant, but also advised that a resolution of the remaining dispute before the Commission was not possible. As a result, that dispute needs to be determined by the Commission.
Directions were made following the preliminary conference that the claims referred to at paragraph 10 above were discontinued, and that the applicant and the remaining respondent were to lodge written submissions with respect to the remaining dispute before the Commission.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents, and
(b) the respondent’s Reply (the Reply) and attached documents.
There was also in evidence before the Commission a Reply lodged by the initial fourth, fifth and sixth respondents. However, neither party in their submissions has referred to the documents attached to this Reply, and I therefore do not propose to rely upon those documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided two signed statement dated 30 April 2021 (page 3 of the ARD) and 6 May 2022 (page 631 of the ARD).
In the first statement, he advises that his duties with the respondent included welding, grinding, fitting out yachts, sweeping, sanding, scraping, moving steel, mowing, whipper snipping, and painting.
He describes his accident on 20 July 2009, when he felt severe pain in his lower back shooting down both his legs, after standing up following being bent over and crouched down, while scraping and sanding the deck of a boat.
The respondent referred him to a doctor (Dr Bennett), who in turn arranged radiological tests and a spinal injection. He was also referred to a doctor practising in musculoskeletal medicine (Dr Craig).
He began to consult with his previous general practitioner (Dr McCarthy) around December 2009, who referred him for further radiological tests, physiotherapy, and then exercise physiology. Dr McCarthy also referred him to a neurosurgeon (Dr Cochrane).
He was variously certified as unfit for work or only fit for suitable duties employment by Dr McCarthy, up to 30 May 2011, when he was certified as fit for pre-injury duties.
He was again certified as unfit for work due to a recurrence of his back injury between 5 December 2011 and 12 January 2012. He then advises that:
“My back would sometimes get sore after a full day at work, but it wasn’t too bad in the morning after warming up. I would get spasms in my back about once or twice a year that would last a week or so then just go away. I just learnt to live with the pain.”
The statement then refers to his labouring employment with various employers since 20 July 2009. He worked for Clarence Coast Constructions between February 2016 and May 2018, and advises:
“During this time although I had intermittent back pain which had been ongoing since my original injury with Harwoods I did not experience any increase in my back pain doing my work and was generally coping ok.”
He worked for TCL Solutions (TCL) on and off during 2015 and 2016, and then he worked for it again from May 2018 to March 2019. TCL (under different corporate identities) was originally claimed against as the second and third respondents.
He states that during his work with TCL, his lower back got sorer every day while he was doing his daily work activities. At the end of 2018, the pain was going down his legs and his back was going into spasms. He took a few days off work. He took medication and “was only just coping”.
His work with TCL involved mostly truck driving, which would in turn involve loading and unloading materials such as formwork, scaffolding, reo bars, tools, rubbish, and broken concrete. He was in a team, and team lifting was practised. The truck that he drove was old and lacked suspension.
He was also required to do some concreting, stripping formwork, and placing bearing pads under bridges.
In March 2019, he stopped working for TCL and began working for Advance Premier Solutions, which traded as Civil Form (Civil Form). Civil Form (under different corporate identities) was originally claimed against as the fourth and fifth respondents.
His work with Civil Form involved regularly getting in and out of cars. He would have to carry tools and equipment long distances, and load and unload grout, tools, containers, and formwork. He was also involved in concreting, grinding, and jack hammering. He states that these tasks “were making my back worse”.
Around the end of May 2019, his back locked up while he was at work, and he had a week off work. He was then certified as being unfit for work, and his employment was terminated on 18 June 2019.
He has not worked since 18 June 2019.
He consulted with Dr McCarthy, who referred him to Dr Wood. He was later referred for physiotherapy treatment (which he undertook regularly during 2020), and he was also referred to a pain specialist (Dr Clarke) and a neurosurgeon (Dr Schwindack).
He began consulting with a psychologist (Peter Popko) in July 2020, as he was becoming depressed from the pain that he was experiencing and the fact that he was unfit for work.
Dr McCarthy referred him to Dr Adams on 3 June 2020, and he consulted with her on 19 October 2020.
He requested that the respondent commence paying him weekly compensation since 18 June 2019. The respondent initially denied liability in this regard, but then accepted liability following arranging for him to be examined by Dr Kinny on 12 March 2020. The respondent continues to pay him weekly compensation.
He states that:
“My back never fully recovered after my original injury with Harwoods. I would continue to experience intermittent back pain after this injury and I had an occasional flare ups. I have always had that niggling nerve pain since that injury, but it was not bad enough to prevent from continuing to work for long periods of time. I tried to stay as fit as I could. Before working for TCL or Civil Form my pain levels in my back would vary between 2 and 8 and in my legs between 1 and 8.”
After his work with TCL and Civil Form, his back pain and his restriction have become worse, and his lower back pain now varies between 5 and 10, and his leg pain varies between 4 and 8.
He continues to have “nerve problems; numb toes and feet and tingling”. He has become irritable and anxious due to his pain, and he avoids socialising. It upsets him that he cannot play with his son, and he feels useless.
Dr Adams prescribed him with medicinal cannabis, which he found to be “effective in reducing my pain from my work injury”. It also eased his anxiety and depression. It was more effective and did not have the strong side effects of the previous prescription medications which he had been prescribed (including Prednisone, Naproxen, Endone, Endep, Lyrica, Tramadol, and Benzodiazepine).
He would like to continue to use medicinal cannabis.
In his second statement (signed on 6 May 2022), the applicant confirms that his pain and restrictions have continued up to present. As a result of the pain as well as his severe depression, he does not believe that he has any capacity for work.
He mentions that he previously used cannabis, and has advised his medical practitioners in this regard. He smoked cannabis for pain relief following his 20 June 2009 injury, until around late 2014. He also started smoking cannabis again after stopping working in June 2019, as it gave him pain relief.
He advises that the respondent initially paid for a one month supply of medicinal cannabis following his consultation with Dr Adams on 19 October 2020. He then himself paid for some medicinal cannabis (prescribed by Dr Adams) in July 2021. He used this sparingly when he was in extreme pain, and he no longer has any left.
Dr Adams’ initial report dated 19 October 2020 can be found at page 126 of the ARD. She reviewed the applicant in relation to treatment with medicinal cannabis for management of chronic neuropathic pain. She explained to the applicant the potential benefits and side effects of that treatment. She prescribed the treatment at or below the maximum amount approved by the Therapeutic Goods Administration.
In her 5 January 2021 report (page 129 of the ARD), she summarises her clinical justification for prescribing the applicant with medicinal cannabis as follows:
“Chronic severe persisting pain in lower back and around hips
Pain radiates down both legs, and numbness in feet.
Toes in L foot are numb
Gets back muscle spasms.
Work injury to back in 2009
Lost job due to this
Physio twice a week
has seen spinal surgeon, has not recommended surgery
Has been referred to pain management team, appt next month
Currently taking Tramadol, Valium, Naprosyn for pain
Tramadol causes vomiting if takes regularly
Valium makes him feel tired the next day
Endone causes vomiting
Endep caused over sedation
Lyrica caused weight gain
Chiro has not helped, increased the pain
Osteopath ineffective
Not responding to previous medications and treatments.”
She notes that the applicant’s activities of daily living have been affected, and that he struggles with household chores. Muscle spasms in his back disturb his sleep.
She confirms her prescription as follows:
“Riley was prescribed a combination of MP 1:1 oil (equal ratio of CBD and THC oil) for the morning and after lunch, LGP 20:5 oil at night, and Beacon medical flower for breakthrough pain”.
She also notes that following her previous prescription of medicinal cannabis to the applicant, he “was going very well”. His pain had improved, his sleep was better, and his mood was better. Following the respondent’s refusal to pay for the medicinal cannabis, he had been prescribed Tramadol again, which was causing him nausea.
The applicant’s solicitors arranged for him to be examined by Dr Sheehy. The doctor reported to them on 14 October 2021 (page 88 of the ARD).
He takes a history of the applicant’s 20 July 2009 injury, and he reviews radiology from 30 July 2009 and 23 February 2010. He also takes a history of the applicant’s work at TCL which “aggravated his back but did not particularly produce any new symptoms”, as well as the applicant’s work at Civil Form which involved concreting and picking up building materials, work that he was able to continue with despite persisting problems with his back and legs. He reviews radiology from 17 February 2021, which consistently with the earlier radiology, shows pathology at L3/4 and L4/5.
He notes that the applicant’s back pain fluctuates, and that he experiences significant cramping in the left leg and pain radiating down the left leg. He also notes that the applicant did not find pain-relieving medication to be of benefit, but that he did find that cannabis oil assisted him.
He diagnoses as follows:
“He sustained an injury to the L3/4 and L4/5 discs in the original injury of 2009. He has had an extensive program of conservative management over the decade with the mainstay often being the avoidance of bending and lifting. His condition has fluctuated and has deteriorated over recent years. The predominant responsibility however for the ongoing problems relate to the original injury.”
He opines that the 2009 injury was aggravated during the applicant’s employment with TCL and Civil Form, and when pressed, advises that the contribution to the applicant’s condition would be 80% to the 2009 injury, 10% to TCL, and 10% to Civil Form.

The applicant was unfit for employment as a builder and concreter, and was only fit for duties involving working at bench height, provided that he could sit and stand as he wished. He should be referred to a spinal surgeon with consideration given to decompression surgery. In relation to the prescription of medicinal cannabis to the applicant, the doctor advises:
“He does find cannabis oil provides him with significant relief. Other medications have not been helpful and serious consideration should be given to considering this medication for this particular patient. Despite the published series that do not support good results with cannabis oil there are individuals who do benefit.”
In a second report (page 95 of the ARD), Dr Sheehy specifically answers questions put to him by the applicant’s solicitors. He opines that the 2009 injury was aggravated by the heavy manual labouring and concreting work performed by the applicant since, and that that work was the main contributing factor to the acceleration of the applicant’s pathology evidenced in the 17 February 2021 radiology reviewed by the doctor.
There are two reports from the applicant’s treating pain specialist, Dr Clarke, in the ARD.
The 5 November 2020 report (page 131 of the ARD) is slightly confusing as the doctor refers both to a nurse consultation on 24 August 2020 as well as his consultation with the applicant on 5 November 2020.
The report notes that the applicant presented with a long-standing history of lower back pain following the 2009 accident. He experienced three to five flare-ups of pain each year, with each flare-up lasting approximately one to two weeks. His concreting work subsequent to the accident often contributed to the flare-ups.
The applicant was undergoing physiotherapy twice per week, and was otherwise managing his pain with rest and medication. He smoked cannabis and drank alcohol to alleviate pain, and was in the process of applying to use medicinal cannabis. He had a history of recreational drug use, and had been previously charged with possession of illegal substances.
He reported a constant aching and sharp sensation in his lower back and buttocks, as well as the anterior aspects of his hips and thighs bilaterally. He also described numbness in the toes of his left foot. His pain was aggravated by bending, twisting, squatting, and lifting. He flexed his knees whilst lying flat in order to reduce the pain. He was unable to work due to the pain and lay supine for extended periods during the day to relieve the pain.
It would appear from the context of the report that the histories referred to in the last three paragraphs (but specifically paragraph 60) were obtained during the nurse consultation on 24 August 2020.
The report then refers to psychometric testing which was carried out and radiological investigations which were reviewed. A physical examination was also carried out, which revealed decreased muscle bulk in the left calf and diminished pinprick sensation on the medial left calf and the middle toes of the left foot.
The report then continues with an assessment/impression and recommendations (which in the context of the report would have been made during or following the doctor’s consultation with the applicant on 5 November 2020). The doctor diagnoses probable radicular lower limb pain, and that neurological findings suggesting L5 nerve root sensory change.
The doctor also notes:
“Since the Nurse review, Riley has improved considerably both from a analgesic perspective and functional perspective. I asked him to repeat the DASS 21 today. They were previously quite abnormal but the results today were significantly different and closer to normal. He attributes these benefits to the recent initiation of formal medical cannabis prescribing”;
and
“He has made significant lifestyle changes and lost a good deal of weight, ceased taking alcohol and apparently takes no other medication apart from his medical cannabis. He also reports improved sleep hygiene”;
and
“I am pleased to say Riley has responded very well to the medical cannabis which has been prescribed. I do not feel inclined to aggressively offer other strategies at this time.”
The doctor recommends attendance at a pain management education session and further radiology. He also suggests that the applicant should be re-trained. He does not believe that interventional strategies should be pursued, stating:
“Given the significant analgesic benefit, improve sleep, improved motivation and improved mood state he claims to have achieved through his use of medical cannabis, I do not think it would be appropriate to pursue interventional strategies. We would risk potentially losing some of these gains.”
There is another report from Dr Clarke dated 22 December 2020 at page 137 of the ARD. Following his consultation with the applicant on that date, the doctor notes that the applicant is unfortunately back on Tramadol following the respondent’s refusal to pay for his medicinal cannabis prescriptions, despite the applicant’s claim that the medicinal cannabis had had a positive effect on his function and quality of life. Relevantly, the doctor states:
“While this (Tramadol) is more conventional, I am not sure it represents a superior approach. This in the context of me not being a proponent of cannabis. We should however treat each patient independently and the evidence base for much of what we do in pain medicine has some vulnerabilities.”
The doctor goes on to warn that while interventional strategies may not yet be needed, the applicant may need to be referred back to him if there is a trend of increasing pharmacotherapy.
There are also two reports from the applicant’s treating psychologist, Peter Popko, in the ARD.
The 27 May 2021 report (page 139 of the ARD) provides a history that the applicant was referred to Mr Popko by Dr McCarthy and had to that date, attended 16 consultations with him. The applicant’s “current situation includes moderate levels of depression and anxiety with ongoing concerns related to fluctuating, sometimes severe, levels of chronic pain”. Diagnoses of major depressive disorder and generalised anxiety disorder are made. The disorders are characterised by a depressed mood most of the day, diminished interest in activities, insomnia, agitation, feelings of worthlessness, inappropriate guilt, diminished ability to concentrate, indecisiveness, worry, restlessness, fatigue, irritability, muscle tension, and sleep disturbance.
A history of substance abuse is obtained by Mr Popko.
Mr Popko’s prognosis for the applicant is however favourable if his chronic pain can be effectively managed and an alternative career path established. The psychologist notes that the applicant reported to him having significant improvement in his mood and pain management with medicinal cannabis.
There is another report from Peter Popko dated 2 December 2021 at page 143 of the ARD. Between the two reports, he had consulted with the applicant on an additional 10 occasions. His diagnosis remained the same as in the 27 May 2021 report, but he noted that the DASS 21 testing which he conducted on 2 December 2021 revealed “extremely severe” results.
Much of the rest of the 2 December 2021 report repeats opinions and conclusions contained in the 27 May 2021 report. However, the psychologist also states:
“Previously, Mr French has trialled two one month medicinal cannabis courses via Dr Adams, which he found to be extremely beneficial in multiple aspects. These aspects included pain management, sleep problems, anxiety reduction and depression reduction. It is unlikely that Mr French would have a problem with over-use of medicinal cannabis, he is fully aware of the need to adhere to the prescribed limits. It is worth noting that Mr French has been prescribed medications with a higher addiction potential than cannabis in the past, in particular diazepam and opiate drugs, and he did not abuse or become dependent upon these”;
and
“My clinical notes relating to his previous medicinal cannabis courses concur with Mr French’s subjective reports on the benefits of the medicine. On 20/07/21, I observed that he appeared decidedly better, with a firm positive attitude and improved sleep schedule in spite of severe pane sciatica down his left leg. There was minimal anxiety episodes during this time, an absence of racing thoughts and his confidence appeared strong”.
The applicant’s general practitioner, Dr McCarthy, has provided a report dated 27 January 2022 (page 561 of the ARD).
Dr McCarthy initially consulted with the applicant on 21 December 2009. He took a history of the applicant’s injury with the respondent, and reported the nature of the injury as “2 lumbar disc prolapse L3/4 and L4/5 with compression the left L5 nerve root”.
He describes the applicant’s current symptoms as “constant severe lumbago”, “bilateral sciatica with numbness in legs and leg cramps”, “insomnia” and “reactive secondary severe anxiety disorder and severe depression”. He does not believe that the applicant is fit for any manual labour employment.
He considers the applicant’s employments with TCL and Civil Form to have aggravated and accelerated his disc injuries, and in relation to his current state, he opines that they contribute 12.5% each, whereas his employment with the respondent contributes 75%.
In relation to the prescription of medicinal cannabis, the doctor advises:
“In my opinion the provision of cannabis is reasonably necessary for Riley’s work injuries. Riley has trialed medical cannabis with reported significant improvement in his mood, chronic lumbar pain and sleep without any significant adverse drug reactions. Riley has tried analgesia and antidepressant medication both of which he had adverse drug reactions…….Long term opiate analgesia is not recommended for chronic spinal pain any more because of adverse drug reactions and the risk of dependency.......Riley states the cost of medical cannabis is c. $800 per script which lasts 1-2 months depending on the severity of his pain”.

There is other evidence in the ARD from Dr McCarthy:
(a)    referrals in 2010 (pages 99-103) for the applicant to consult with Dr Cochrane (neurosurgeon), to consult with Dr Craig (pain specialist), to undertake physiotherapy treatment, to undertake exercise physiology treatment, and to begin a gymnasium membership;
(b)    a referral in February 2018 (page 106) for the applicant to undertake physiotherapy treatment;
(c)    a referral in August 2019 (page 107) for the applicant to consult with Dr Wood (neurosurgeon);
(d)    referrals in 2020 (pages 108-109 and 112-115) for the applicant to undertake physiotherapy, to consult with Dr Clarke, to consult with Dr Schwindack (neurosurgeon), to consult with Dr Adams, and to consult with Peter Popko;
(e)    a report dated 23 January 2020 to GIO General Limited (page 110) in which the doctor noted that the applicant had not had any pre-existing conditions prior to 20 July 2009, and that he had had a recurrence of the injury that he suffered on that date - the report recommended physiotherapy, attendance upon a pain specialist, and medication (Diazepam, Naprosyn, Sone, and Tramal), and
(f)    a certificate dated 22 October 2021 (page 116) in which the doctor noted that he had cared for the applicant for 19 years, and that the applicant had never demonstrated any addiction symptoms or behaviour to prescription drugs – he also noted that the applicant had benefited greatly from medicinal cannabis, which had allowed him to cease his narcotic analgesia.
There is also medical evidence from other treating doctors of the applicant’s in the ARD - from Dr Bennett, Dr Craig, Dr Cochrane, Dr Schwindack, and Dr Siu (neurosurgeon). I have considered this evidence (much of which deals with treatment recommended for the applicant in the years immediately following his 20 July 2009 accident) and will refer to it further if I am specifically referred to it in submissions.
I do however note the opinions in Dr Schwindack’s 19 May 2020 report (page 123 of the ARD) in relation to the management of the applicant’s “non specific lower back pain” that:
“I want him to reconsider the strong pain medications as ongoing and long term use of these has a negative impact on his cognitive/pain pathways. He needs to see his physio/exercise physiologist to work on an exercise program to mobilise his back. I’ve suggested hydrotherapy, Pilates, cycling and walking.”
I also note the opinions in Dr Siu’s 23 December 2021 report (page 608 of the ARD) that:
“Mr French is a 32-year-old who complains of a 12-year history of low back pain and left leg pain. This developed acutely one day at work in 2009 when he was scraping the deck of a boat. He squatted down, got up and suddenly felt something ‘went’ in the back. He then gradually recovered from this with non—operative treatment (injections and physiotherapy) and managed to return to work. He then developed recurrent pain and deterioration in 2019. He recalls that he was doing a lot of driving and heavy lifting at that time, which caused a significant aggravation. The pain at one point was so severe to the point that he could hardly walk and was in a wheelchair. With perseverance with conservative treatment, including a period of using medicinal cannabis, there has been improvement”;
and
“I think Mr French is suffering from chronic left sciatica with recurrent severe flare-ups over the years since an initial workplace injury in 2009. Given the severe recurrent sciatic symptoms, surgery in the form of a microdiscectomy is indicated. I have explained the above to him, highlighting the pros and cons of surgery versus continuing non-operative treatment…….There is a lot of information to absorb and Mr French would like to have more time to think about it. He would also like to persevere with conservative treatment a bit longer.”
Aside from the evidence already referred to in these reasons, the ARD also contains:
(a)    various claim and other forms completed by or on behalf of the applicant, and lodged with either the respondent, TCL, or Civil Form;
(b)    various correspondence (including dispute notices) between the applicant or his legal representatives, and those representing the insurance interests of either the respondent, TCL, or Civil Form;
(c)    a payments list from the respondent’s insurer;
(d)    various radiological reports;
(e)    clinical notes from Dr McCarthy, Dr Clarke, Peter Popko and Yamba Physio & Sports Injury Clinic;
(f)    various certificates of capacity issued by Dr McCarthy;
(g)    documentation regarding the applicant’s earnings;
(h)    searches conducted with the State Insurance Regulatory Authority and the Australian Securities and Investment Commission;
(i)    the Therapeutic Goods Administration’s December 2017 guide for the use of medicinal cannabis in the treatment of chronic non—cancer pain, and
(j)    An academic article regarding the use of medicinal cannabis in the treatment of chronic pain, authored by Luke Henderson and others, and appearing in an October 2021 publication from the Australian College of General Practitioners.
I have considered this evidence and determined that some of it is irrelevant to the specific dispute that I need to determine. Of the evidence that is relevant, I will refer to it further if I am specifically referred to it in submissions.
I do however find the conclusion (found at pages 604-605 of the ARD) reached in Luke Henderson’s article to be on point:
“Medicinal cannabis is worthy of consideration in the management of chronic pain, and it is important that doctors are aware of the positives and negatives related to its use. The more commonly prescribed oral products (oils, sprays and capsules) are attractive since they can be delivered in a more controlled and socially acceptable manner than inhaled products, although they have a slower onset. While CBD products are attractive given better safety when driving or performing other safety-sensitive tasks current supportive evidence for their efficacy is limited. Harm minimisation should always be front of mind in prescribing decisions, particularly with patients who are driving regularly or using heavy machinery. It must be recognised that the long-term effects of medicinal cannabis, potential drug-drug interactions and efficacy across different pain types remain only partly understood. The guiding principle of start low, go slow is crucial, with the aim to obtain clinical benefits at the lowest possible dose and to minimise risks and side effects.
A recent and authoritative systematic review, commissioned by the International Association for the Study of Pain, concluded the current evidence ‘neither supports nor refutes claims of efficacy and safety for cannabinoids, cannabis, or cannabis-based medications in the management of pain’ and that there is ‘the pressing need for studies to fill the research gap’, a conclusion supported by another recent systematic review. The Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists concluded that until higher-quality evidence is available, currently available cannabinoid products should only be prescribed as part of a registered clinical trial.
Despite the fact that current supportive evidence is of low overall quality, there are tens of thousands of patients with chronic pain being prescribed medicinal cannabis products in Australia, and hundreds of thousands using illicit cannabis products to self-medicate chronic pain. Many have legitimate lived experience of lasting pain reduction with cannabis that is not easily disregarded. There is clearly a disconnection between the pronouncements of specialist medical colleges and current prescribing and community use of cannabinoids in Australia. It is hoped that the results of the next generation of clinical trials of cannabinoid products and pain would help to resolve this tension.”
Finally, the ARD contains (at pages 545-548) a schedule, together with supporting receipts, regarding the applicant’s claim for the costs which he has already incurred in being prescribed medicinal cannabis. He paid Dr Adams $200 for a telephone consultation on 19 October 2020, he paid $1097 on 24 October 2020 for the prescription of the four items prescribed to him by Dr Adams (see paragraph 4 above) to be filled, and he paid $473 on 22 July 2021 for the prescription of two of the four items prescribed to him by Dr Adams to be filled.

Respondent’s evidence

The respondent largely relies upon the opinions expressed by Dr Gorman in his 4 May 2021 report (page 80 of the Reply).
Dr Gorman took a history of the applicant’s injury with the respondent, and his treatment with spinal injections and physiotherapy at the time. He then took a history of the applicant’s pain worsening in June 2019, such that he has had back spasms since then.
He noted Dr Clarke’s record that the applicant had “done well” with medicinal cannabis, and therefore the doctor was disinclined to offer other strategies.
He recorded that the applicant “was using cannabis cones until five to six months ago when he had one month of the oil plus a vaporiser. He said that ‘illicit cannabis is not as good as oil’”.
He also recorded the applicant’s current medication as Tramal, Valium and Prednisone. The applicant saw a psychologist every fortnight, and was undertaking physiotherapy “in the pool”.
The applicant was anxious and stressed, and experienced panic attacks. He continued to have pain in his lower back, hips, and the back of both his legs. His toes were numb. He only had good sleep for two to three hours per night, and he did little in terms of household activities.
On examination, the doctor recorded:
“He can flex his lumbar spine to 30° only with tightness across the lumbar spine. Extension was 10°, again with tightness across the lumbar spine.
Lateral flexion was 20° to the right and left with his fingertips 10 cm above his knee.
He described his right leg as having pins and needles but did not have them during my examination – he did however have some numbness in the 2nd, 3rd and 4th toes.
Reflexes and motor power were normal.”

The doctor reviewed radiological investigations from September 2009 and November 2020, and diagnosed discogenic lumbar spinal pain.
The doctor did not believe that the prescription of medicinal cannabis to the applicant was appropriate, and he provided four reasons:
“1.     He has already trialled medicinal cannabis as well as illicit cannabis without any significant maintained improvement in function.
2.      The Faculty of Pain Medicine is not supportive of medicinal cannabis for chronic pain as outlined in the attached Position Statement and Press Release. The evidence does not support its analgesic effectiveness - CBD in particular has no established effectiveness. THC/CBD preparations have greater psychoactive and addictive properties.
3.      Mr French has had previous substance abuse issues with alcohol overuse and the use of illicit cannabis. I believe it would be inappropriate that we re-start an addictive preparation.
4.      If THC is used this will stop him driving which will interfere with his rehabilitation and quality of life. Many worksites would be unhappy having a worker on medicinal cannabis and this may preclude him from some occupational roles.”
The Position Statement (dated 11 February 2019) and Press Release (dated 23 March 2021) from the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists are attached to the Reply at pages 59-71. Unfortunately, neither document is authored specifically (although the Press Release quotes comments from Associate Professor Vagg), other than to say that they originate from the Faculty..
The summary of the Position Statement on its first page reads as follows:
“1.     The Faculty of Pain Medicine (FPM) acknowledges the changed regulatory environment for the use of medicinal cannabis in Australia and New Zealand. In Australia this includes the rescheduling of tetrahydrocannabinol (THC) from S9 (Prohibited substances) to S8 (Controlled drugs) and the granting of licences for the cultivation of Cannabis sativa and the manufacture and production of medicinal cannabinoids. In New Zealand this includes proposed changes to the Misuse of Drugs Act 1975 to allow terminally ill people to possess and use illicit cannabis, to enable regulations to be made setting quality standards for products, and to deschedule cannabidiol (CBD) as a controlled drug. THC would remain a class B controlled drug, except when contained in a class C controlled drug, and except when contained in a CBD product.
2.      FPM recognises both the political imperatives underpinning these changes and the community demands that have generated them.
3.      FPM adheres to the principle that substances intended for therapeutic purposes be fully characterised chemically, pharmacologically and toxicologically, to the extent that they would be eligible for registration by regulatory authorities (Therapeutic Goods Administration in Australia; Medsafe in New Zealand).
4.      The sociopsychobiomedical framework that informs the assessment and management of people with chronic non-cancer pain requires active engagement of patients in a multimodal management program, and recognises the adverse effects that may be associated with polypharmacy in general and with cannabinoids in particular.
5.      FPM is very concerned about the adverse event profile in cannabis users, especially in young people, including impaired respiratory function, psychotic symptoms and disorders and cognitive impairment.
6.      At the present time, the scientific evidence for the efficacy of cannabinoids in the management of people with chronic non-cancer pain is insufficient to justify endorsement of their clinical use.
7.      FPM recognises the difficulties inherent in performing trials of any medications in patients with chronic non-cancer pain. Nonetheless FPM believes that if pragmatic trials of cannabinoids are considered to be necessary they should be conducted on a coordinated national basis.”
Dr Gorman relied upon the Position Statement and the Press Release in order to inform his opinions, and specifically referred to the statement in the Press Release that medicinal cannabis should not be prescribed for chronic pain. He acknowledged that medicinal cannabis was being used for chronic pain but that it was not accepted by the Faculty.
The doctor also acknowledged the genuine nature of the applicant’s pain complaints, but summarised his opinion as follows:
“I would not support the use of medicinal cannabis. He has already used medicinal cannabis for a period and did not make any significant functional gains during that time. He has used illicit cannabis for a longer period and again did not make any functional gains.”
Instead of medicinal cannabis, the doctor recommended ongoing treatment involving medication (but not high doses of Prednisone), hydrotherapy, psychologist’s appointments, and the use of techniques learned in a pain education course.
The respondent also relies upon a report from Dr Kinny dated 18 March 2020 (page 74 of the Reply).
The doctor obtained a history from the applicant that he first injured his lumbar spine in 2009, and was diagnosed as suffering a disc prolapse. He was treated with physiotherapy, pain management, and steroid injections. He was able to return to work, but his back “never fully settled”. He worked as a concreter, then as a foreman, and finally as a supervisor. His back gradually deteriorated over the first half of 2019, and he stopped working.
The doctor recorded the applicant’s current symptoms as involving back flare ups which “can last for up to a month at a time, and there is usually very little time in between such flares”. He used a walking stick and performed hardly any household activities. He could only sit down for up to 30 minutes, and he could only walk 250m before needing to rest. He averaged three hours of sleep per night, and had developed depression.
On examination, the doctor found that the applicant moved extremely cautiously. He had restrictions with flexion, extension, rotation, lateral bending, and straight leg raising.
The doctor diagnosed that the applicant was suffering degenerative disc disease at L2/3, L3/4, and L4/5, and that “this was started off with traumatic disc damage in 2009”. He provided a detailed rationale for this opinion, as follows:
“Mr French has severe discogenic back pain, with a component of left S1 referred pain. The original injury occurred in 2009, and whilst it settled to some extent subsequently, it never fully did so. Mr French’s symptoms started to deteriorate again early in 2019, to the point where in June 2019, he became unable to continue with workplace activity. The main feature radiologically of his current MRI scan compared to those of nearly a decade ago is that there is now significant L2/3 disc pathology as well. I note that Mr French lodged a ‘recurrence claim’ in June 2019, without a frank incident being reported, and I agree that his current condition can quite rightly be regarded as ongoing from the original workplace injury, i.e a progression in terms of deterioration and symptoms from the original injury. I do not regard the claimant as having suffered a significant new injury event, but rather a progressive worsening in symptoms, as degenerative changes take place in the spine as a result of the original disc injuries. You will note that there is now significant damage to the L2/3 disc, which was not present in 2009 or 2011.”
The doctor believed that the applicant would eventually require spinal surgery and should be referred to an appropriate specialist. He did not need “simple pain management in isolation”. His prognosis was guarded.
The Reply also includes a report (at page 91) from Grafton Base Hospital in relation to the applicant’s admission to it on 8 November 2015. On that date, he reported to the hospital with symptoms of vomiting and diarrhoea following substance abuse, including the smoking of marijuana. He was treated with fluids and discharged from the hospital after around three hours, into the care of Dr McCarthy.
There is a questionnaire that Dr McCarthy completed on 22 February 2011 also included in the Reply (at page 87). In that questionnaire, the doctor advises that he is consulting with the applicant monthly, but not prescribing him with any medication. The applicant is not working and may require a lumbar microdiscectomy in the future. The applicant was then fit for work as a plant operator or electrician, but not in retail, customer service, or real estate.
The Reply also includes the following evidence:
(a)    claim forms submitted by the applicant to the respondent and TCL;
(b)    dispute notices issued on behalf of the respondent and TCL;
(c)    the complying agreement reflecting the agreement between the applicant the respondent that he had sustained 5% whole person impairment as a result of his 20 July 2009 injury;
(d)    Dr Clarke’s report dated 5 November 2020 – included in the ARD also and discussed at paragraphs 58-66 above;
(e)    vocational, earning capacity, and injury management reports, and
(f)    payment and tax records for the applicant.
I have considered this evidence and determined that some of it is irrelevant to the specific dispute that I need to determine. Of the evidence that is relevant, I will refer to it further if I am specifically referred to it in submissions.

Applicant’s submissions

The applicant's submissions have been reduced to writing and I will therefore not repeat them in detail.
The applicant refers the Commission to the medical evidence in the ARD initially following his 20 July 2009 injury, with specific reference to the radiological evidence (see the reports at pages 148-154) and Dr Cochrane’s reports (see the reports at pages 118-122). In Dr Cochrane’s 26 March 2010 report, his diagnosis is:
“Left S1 radiculopathy from L5/S1 nerve root compression. This is due to acute disc prolapse, likely to have occurred on 20/7/209 given the history of acute pain commencing on that date”.
Dr Cochrane then suggested that the applicant had a 30% chance of requiring a microdiscectomy, and the doctor also suggested that the applicant work “in a less physically engaging field”.
In Dr Cochrane’s 8 June 2010 report, his diagnosis is:
“Ongoing low back pain with episodic sciatica and spasm and paraspinal muscle spasms. Improved left sided sciatica and leg pain. The diagnosis therefore is disc degeneration due to traumatic disc injury at L5/S1 with improving left S1 radiculopathy”.
In that report, Dr Cochrane also advises that “the prognosis is that he will show a moderate improvement but with episodic exacerbations in back pain with re-injury if he enters a heavy work role”.
In relation to the radiological evidence initially following the applicant’s 2009 injury, it is submitted:
“It was at least evident from an examination of the scans and reports carried out to this time that the Applicant had significant pathology at L4/5 and apparent nerve compression or abutment at L5 left nerve root in addition to the abnormal pathology at L3/4 at which the descending left L4 nerve root was in contact with disc protrusion at that level.”
The applicant then refers the Commission to the more recent radiological evidence in the ARD (see pages 155 and 156) and submits that that evidence demonstrates “the significant pathology identified at L4-5 and L3-4 with the same nerve root involvement as was found in 2010 & 2011 MRI scanning”.
In relation to medical treatment for the pain being suffered by the applicant in his back and legs, together with the related anxiety and depression that he refers to in his statements, he submits that the prescription of medicinal cannabis is reasonably necessary treatment. He refers to his statement evidence as to the effectiveness of the medicinal cannabis when he tried it, and as to the ineffectiveness and strong side-effects experienced by him with prescription medication.
Dr McCarthy records that Endone caused him nausea, vomiting, and adverse drug reactions (see page 107 of the ARD and paragraph 79 above). Dr Schwindack records that he had to cease Lyrica due to its side-effects, and advises him to reconsider strong pain medications (see page 124 of the ARD and paragraph 82 above). Dr Clarke records that he was “unfortunately” back on Tramadol after the respondent refused to pay for the continued prescription of medicinal cannabis (see paragraph 67 above).
In contrast, apart from the applicant’s statement evidence, the ARD contains evidence from Dr Sheehy, Dr McCarthy, Dr Adams, Dr Clarke, Dr Siu, and Peter Popko, who all endorse the use of medicinal cannabis for him, largely on the basis that when he tried it, there were improvements with his sleep patterns, his pain levels, and his mood. Dr Clarke did not wish to pursue other “interventional strategies” considering the effectiveness of the applicant’s treatment with medicinal cannabis. Peter Popko noted that his anxiety and depression levels deteriorated once he ceased medicinal cannabis.
In relation to the medical opinions proffered by Dr Gorman, the applicant submits that the doctor (see pages 82-83 of the Reply) recorded the side effects which he experienced with Tramal, Oxycontin and Endone.
The doctor also recorded his current symptoms (see paragraph 92 above) which were “at complete odds with the recorded state of the Applicant when he was using medicinal cannabis”.
The doctor acknowledged that medicinal cannabis was being used for the treatment of chronic pain even though it was not accepted by the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists. The applicant submits that he suffers from chronic pain.
In relation to the doctor’s view that the applicant’s use of medicinal cannabis in the past had not provided him with any significant improvement in function, it is submitted:
“That is no reason to deny the worker the treatment sought if indeed it is accepted that he is affected by chronic pain and the medicinal cannabis when prescribed as controlled by his treatment providers gives him relief or is therapeutic in terms of his injury”.
Finally, in relation to the requirement for the 20 July 2009 injury to materially contribute to the applicant’s need for treatment, he refers the Commission to the opinions expressed by Dr Sheehy, Dr McCarthy, Dr Siu, and Dr Kinny. Those opinions all implicate that injury as being predominantly responsible for the applicant’s ongoing symptoms. His current condition can be regarded as ongoing and unresolved following that injury. The applicant also submits:
“There need only be a material contribution to the need for the treatment sought by the event of the subject injury. The need for treatment may be due to more than one causative event but that does not causally negate a material contribution for the treatment needed”.

Respondent’s submissions

The respondent’s submissions have been reduced to writing and I will therefore not repeat them in detail.
The respondent acknowledges that the applicant has an excepted lumbar spine condition, but disputes that the prescription of medicinal cannabis is reasonably necessary treatment for that condition.
The respondent refers the Commission to the authorities of Honarvar v Professional Painting AU Pty Limited [2022] NSWPICPD 12 (Honarvar), Rose v Health Commission (NSW) (1986) 2 NSWCCR 2 (Rose), and Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), in relation to the tests to be applied in determining whether treatment is recently necessary.
The respondent also refers the Commission to its various dispute notices, and adopts the reasons stated in those notices. In the 7 May 2021 notice (page 67 of the ARD), it relies upon the opinion of Dr Gorman as quoted at paragraph 95 above. In the 1 December 2021 notice (page 81 of the ARD), it also refers to Dr Gorman’s opinions as well as his referencing of the position of the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists, which is not supportive of the prescription of medicinal cannabis to treat chronic pain. It states:
“The faculty is Australia’s leading pain specialty body that sets standards in pain medicine and is responsible for education and training in the discipline in Australia and New Zealand. They highlight that currently available medical cannabis products are not even close at this stage to showing that they deserve a place in the management of the complex patients who suffer from ongoing pain”.
It then also refers to State Insurance Regulatory Authority guidelines:
“It is with these comments in mind that we also refer to the SIRA Guidelines which confirm that based on current research evidence, medical cannabis is classified as a high risk medication. High risk medication has the potential for negative health outcomes, dependence and accidental overdose. It remains that there is limited medical literature available, particularly on the long-term effect of the use of cannabis as a medical treatment”.
The respondent submits that the applicant has not provided any evidence of a scheme or regime for the prescription to him of medicinal cannabis. The prescription is claimed for two years, but no practitioner has explained why.
“There is no plan or proposal by any doctor of the length of treatment or type of treatment being medicinal cannabis claimed, nor the proposed treatment outcome. There is no written proposal for the types of proposed medicinal cannabis or their costs nor the timing of any reviews. The applicant has not provided how the monthly amount as claimed in the ARD has been reached. There are ‘letters’ of support, but no proposal or plan for the treatment. Additionally, there is no evidence of any past TGA approval”.
The respondent submits that the Commission would have difficulty accepting the opinions of Dr Sheehy as:
(a) he is not sufficiently qualified (being a neurosurgeon) to provide an opinion on therapeutic pain management, and
(b) while he acknowledges that “there are individuals who do benefit” from the prescription of medicinal cannabis, he does not specifically refer to the applicant as benefiting from the past use of it, or being one of those “individuals”.
The respondent submits that in the context of the applicant performing heavy manual labouring and concreting work for 10 years after his 20 July 2009 injury, a question arises as to when he found that he was not assisted by pain-relieving medication, but was assisted by medicinal cannabis. This only occurred after that 10 years of work, and the respondent therefore submits that the lack of effectiveness of alternative pain-relieving medication for the applicant should be considered to have been caused by the work that he did in those 10 years (while he worked for employers other than the respondent).
The respondent submits that there is no evidence “which is persuasive” that the applicant noticed improvement in his pain levels following the initial prescription to him of medicinal cannabis, or that any improvement in those pain levels was due to that prescription. The applicant did not return to work and the evidence is “scant” that there was any reduction in the other medication prescribed to him. There are no reports “detailing the treatment’s success to objectively provide foundation of the opinion proffered by Dr Adams or Dr McCarthy of any improvement in the Applicant’s condition”.

The respondent submits that in the light of a history of significant illegal marijuana use (as evidenced in the applicant’s admission to Grafton Base Hospital on 8 November 2015 - see paragraph 107 above), the Commission would not be persuaded that even monitored medicinal cannabis treatment would be appropriate for him.
The respondent submits that Dr Gorman is the only doctor who has provided opinions specifically dealing with the tests outlined in Honarvar, Rose and Diab. He explains why he does not believe medicinal cannabis to be appropriate therapy (see paragraph 95 above); he identifies complications from medicinal cannabis treatment (it can be addictive, habituating, and interfere with driving and work); he opines that the effectiveness of medicinal cannabis is not at all established based upon the Position Paper of the Faculty of Pain Management of the Australian and New Zealand College of Anaesthetists; he does not believe that the prognosis with medicinal cannabis “is good for the short or long-term”; he confirms that while medicinal cannabis may be being used for chronic pain it is not accepted by the Faculty; and he recommends the following alternative treatment for the applicant – hydrotherapy, his current medications (but with less Prednisone), a pain education course, and psychological treatment.

Finally, the respondent advises that in relation to the applicant’s claim for past medical expenses (see paragraph 86 above), he has in fact paid the amounts of $200 and $1,097, and the only amount that it has not paid is the amount of $473. It refers to its list of payments (at page 85 of the ARD) in this regard.

Applicant’s submissions in reply

The applicant has lodged submissions in reply. Having been reduced to writing, I will not repeat them in detail.
In relation to the respondent’s submissions regarding Dr Sheehy’s opinion, the applicant submits that the doctor considered the applicant’s history of medicinal cannabis providing him with significant relief, and therefore advised that “serious consideration” should be given to continuing with its prescription “for this particular patient”. This advice is in support of the applicant’s claim for treatment with medicinal cannabis, and is consistent with the medical opinions of especially Dr Clarke and Dr Adams.
The applicant submits:
“It is not for medical opinion to address the test of whether medical treatment is reasonably necessary as that is a threshold test set by the 1987 Act which the Member will consider met or not met after evaluating and analysing the whole of the evidence. I submit it is not a requirement for medical experts to be aware of the legal content of the phrase ‘recently necessary’ when providing commentary and opinion”.
The applicant submits that the opinions of Dr Sheehy should be given more weight than the opinions of Dr Gorman, as Dr Gorman did not properly explain why he appears to have ignored the therapeutic and beneficial effects of the medicinal cannabis upon the applicant as recorded in the report of Dr Clarke.
Dr Gorman also failed to appreciate that the “point at issue” is therapeutic treatment for long-term chronic pain and reduction in anxiety and depression, when he opined that medicinal cannabis would not significantly maintain improvement in function, would result in the applicant being unable to drive, and would interfere with the applicant’s rehabilitation.
In relation to the respondent’s submission that the applicant has not provided any evidence of a scheme or regime for the prescription to him of medicinal cannabis, the applicant refers to Dr Adams’ reports (see paragraph 48 above) and the dose limits specified in those reports as to its prescription.
In relation to the respondent’s submission that there are no reports “detailing the treatment’s success to objectively provide foundation of the opinion proffered by Dr Adams or Dr McCarthy of any improvement in the Applicant’s condition”, the applicant submits that he would “struggle to point to what kind of ‘objective’ test or evidence a medical expert would in this context refer to. Surely it is a matter of acceptance or not of the worker’s reports to his treatment providers as to how he has benefited or not from the use of cannabis. There is no reason not to accept the Applicant’s history as credible”.

FINDINGS AND REASONS

Whether the prescription of medicinal cannabis recommended by Dr Adams is reasonably necessary medical treatment as a result of the injury to the applicant’s back on 20 July 2009, which arose out of or in the course of his employment with the respondent

Section 60 (1) of the 1987 Act provides as follows:
“(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).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment,”.
The first question to therefore determine is whether the prescription of medicinal cannabis proposed by Dr Adams is reasonably necessary treatment.
The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose where his Honour stated:
“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.”
In Diab, Roche DP considered Rose and concluded:
“86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). 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’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87. Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
·(a) the appropriateness of the particular treatment;
·(b) the availability of alternative treatment, and its potential effectiveness;
·(c) the cost of the treatment;
·(d) the actual or potential effectiveness of the treatment, and
·(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
In Honarvar, Snell DP made what I consider in the context of the applicant’s dispute to be an important point:
“72. The Member did not make any adverse credit finding in respect of the appellant. He did not make a finding that the appellant’s evidence was not reliable. He specifically said ‘I wish to make it clear that there can be no criticism of [the appellant] that his beliefs in the seriousness of his symptoms are not genuinely held.’ The Member did not reject the appellant’s evidence. He simply said that the appellant’s evidence did not assist him. The reasons at [96] give some indication of why this approach was taken. The Member there said: ‘as can be seen from the criteria set out in Diab, the test of whether a proposed treatment is reasonably necessary requires further proof than simply the workers’ subjective view’. There is no doubt that proof consistent with the principles in Diab does require more than the worker’s subjective view. It is, however, difficult to think of circumstances, at least in the absence of significant issues regarding reliability, where a worker’s subjective assessment, of the helpfulness (or lack of it) of alternative treatments which he or she had undergone, would not be relevant on that topic.”
In relation to the medicinal cannabis prescription proposed for the applicant by Dr Adams, I accept the submissions made by the applicant as to that treatment being reasonably necessary. In this regard, I prefer the medical evidence proffered on behalf of the applicant, to that proffered by Dr Gorman (including his reliance upon documentation produced by the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists).
I accept the statement evidence of the applicant’s, which I find to be consistent with the information that he has provided to both treating and qualified doctors regarding the degree of his back and psychological symptoms, as well as the degree to which those symptoms have been relieved in the past by using medicinal cannabis (during the brief period when he was prescribed it). The respondent has not sought to challenge the applicant as a witness of truth.
Therefore, in accordance with Honarvar, I find the applicant’s subjective view of the helpfulness of medicinal cannabis during the brief period when he was prescribed it, to be highly relevant. The relevance of the applicant’s subjective view in this regard is then reinforced by the degree to which that view is accepted by his treating practitioners, who have each consulted with him (unlike Dr Gorman) on more than one occasion. Indeed, Dr McCarthy has been his general practitioner since 2009.
I have preferred the medical evidence proffered on behalf of the applicant, to that proffered by Dr Gorman, as:
(a)    Dr Gorman only consulted with the applicant once, like Dr Sheehy. However, both Drs Clarke and Adams have consulted with the applicant at least twice, in addition to a nurse’s consultation arranged by Dr Clarke. Further, Dr McCarthy has been the applicant’s general practitioner since 2009, and Peter Popko (when he last reported) had consulted with the applicant on at least 26 occasions. I therefore consider Dr Clarke, Dr Adams, Dr McCarthy, and Peter Popko to be in a much more advantageous position to Dr Gorman in order to make recommendations as to the applicant’s need for treatment;
(b)    In my opinion, a close perusal of Dr Gorman’s report reveals an almost intransigent reliance upon the views expressed in the Position Paper and Press Release from the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists. For reasons that I will come to, I do not place tremendous weight upon those articles;
(c)    Dr Gorman acknowledged the applicant’s subjective view as to the benefits of medicinal cannabis (it was calming, it helped him sleep, and it was better than illicit cannabis) and he also acknowledged Dr Clarke’s disinclination to offer other pain management strategies as the applicant had “done well” with medicinal cannabis. However, Dr Gorman then stated that the applicant’s previous trial with medicinal cannabis had not produced any “significant maintained improvement in function”. Not only does this statement conflict with the evidence and histories given by the applicant to the Commission, his treating practitioners, and indeed Dr Gorman, it also does not acknowledge that the applicant’s previous trial with medicinal cannabis lasted a maximum of only 73 days (the period between when the relevant prescription was filled on 24 October 2020 and Dr Adams’ 5 January 2021 report);
(d)    In my opinion, Dr Gorman did not sufficiently explain his opinion why the applicant’s previous history of substance abuse is relevant to it being inappropriate to prescribe the applicant with medicinal cannabis. He mentioned the addictive and habituating nature of medicinal cannabis, but did not address why that could not be managed by the applicant’s treating doctors. It is important in this regard to note that there is evidence that Dr Clarke, Peter Popko and Dr McCarthy (the report from Grafton Base Hospital being sent to him) were all aware of the applicant’s history of substance abuse, and yet were happy for him to be prescribed medicinal cannabis on an ongoing basis;
(e)    Dr Gorman did not offer the applicant any treatment recommendations for his ongoing pain, other than the treatment that he was already undertaking, except for a reduction in Prednisone. In circumstances where I have accepted the evidence of the applicant that his ongoing pain is chronic and that his current pain management regime does not sufficiently assist in the management of that pain and causes him side effects, I do not find Dr Gorman’s treatment recommendations in this regard to be useful, and
(f)    I accept the submissions of the applicant at paragraphs 136-137 above that Dr Gorman has ignored the therapeutic and beneficial effects of medicinal cannabis upon the applicant in order to treat his chronic pain and reduce his anxiety and depression.
I do not place tremendous weight upon the articles relied upon by the respondent from the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists. These articles are not authored and would probably not be admissible in Court proceedings. The Position Paper is also well over three years old. In contrast, the applicant relies upon an article authored by Luke Henderson and others, which is dated in October 2021, and which was published by the Australian College of General Practitioners. That article seems to me to reasonably conclude that medicinal cannabis “is worthy of consideration in the management of chronic pain”. The article acknowledges the position of the Faculty of Pain Medicine and the need for more clinical trials, but also acknowledges the living experiences of many who have achieved lasting pain reduction through the use of medicinal cannabis. As with any medication, the article acknowledges the need for doctors to be aware of the positives and negatives related to medicinal cannabis use. I found the article to be balanced and informative, and I propose to give it more weight than the articles in evidence from the Faculty of Pain Medicine.
I reject the respondent’s submission (see paragraph 129 above) that there is no persuasive evidence to objectively provide foundation for the applicant’s view as to the effectiveness of his past treatment with medicinal cannabis. Apart from the applicant’s submission (which I accept - see paragraph 139 above) that an objective test is not necessary in the context of the applicant’s reports to his treating practitioners (reports which I have accepted as truthful) as to how he has benefited from medicinal cannabis, the respondent fails to deal with the evidence from Dr Clarke (see paragraph 65 above) as to the applicant’s improvement on DASS 21 testing between 24 August 2020 and 5 November 2020, during which time he had begun to use medicinal cannabis.
I place significant weight upon the evidence of Dr Clarke (see paragraphs 66-67 above) as he confesses to not being a proponent of medicinal cannabis treatment, but still believes it to be inappropriate to suggest other interventional strategies for the applicant while medicinal cannabis is proving to be effective treatment for him. He does not see the prescription of Tramadol as superior. He accepts the improved sleep, improved motivation and improved mood experienced by the applicant while using medicinal cannabis.
Dr Adams also records in her 5 January 2021 report (see paragraph 49 above) the improvements in the applicant’s pain levels, sleep and mood, after she initially prescribed him with medicinal cannabis. Dr McCarthy in his 27 January 2022 report (see paragraph 79 above) records the identical improvements as did Dr Adams, while Peter Popko (see paragraph 74 above) records improvements in pain management, sleep problems, anxiety reduction and depression reduction.
Peter Popko also conducted DASS 21 testing on 2 December 2021, which revealed extremely severe results. Although the psychologist did not compare those test results to the results from the testing conducted by Dr Clarke on 5 November 2020, I believe it is relevant to note the difference between Dr Clarke’s finding of “considerable improvement” and Peter Popko’s finding of “extremely severe”, in circumstances where the applicant was not prescribed medicinal cannabis (except for a brief period around 22 July 2021) after 5 January 2021.
Further, Dr Sheehy (see paragraph 55 above) accepted that medicinal cannabis had provided the applicant with “significant relief”, and advised that “serious consideration” should be given to continuing that medication “for this particular patient”. I reject the respondent’s submission at paragraph 127 above, as I believe that the doctor sufficiently identifies the applicant specifically as benefiting from the use of medicinal cannabis in the past. Although the doctor is a neurosurgeon, he is qualified by his degree to provide expert opinion evidence regarding medical matters, which would include therapeutic pain management. If his opinion was different to the opinions expressed by the applicant’s treating general practitioner, pain management specialist, and psychologist, Dr Sheehy’s specialty may be relevant to the weight to give to his evidence, but his opinion is in fact entirely consistent with the opinions of the treating practitioners.
The evidence supports the conclusion that the applicant’s past use of medicinal cannabis (while for only a brief period) was considerably effective, especially compared with his past experiences in using other pain medication. I accept the applicant’s submission at paragraphs 114-115 above in this regard. Apart from the opinions mentioned in those paragraphs, Dr Adams (see paragraph 46 above) goes through the problems experienced by the applicant with Tramadol, Valium, Endone, Endep and Lyrica. Further, Peter Popko (see paragraph 74 above) opines that there is a higher risk of addiction with diazepam and opiate drugs than with medicinal cannabis.
In relation to the respondent’s submission at paragraph 130 above, I am not persuaded that the use of medicinal cannabis on a monitored basis would not be appropriate for the applicant, because of his history of illegal marijuana and other substance abuse. As noted previously, I find Dr Gorman’s opinion in this regard to lack explanation. I also find the opinion of Peter Popko (see paragraph 74 above) to be helpful. He had consulted with the applicant 26 times prior to opining that he did not believe that the applicant would have a problem with over-use of medicinal cannabis, as the applicant was “fully aware” of the need to adhere to prescribed limits and as the applicant had not abused or become dependent upon more addictive pain medications in the past.

The applicant advises (see paragraph 43 above) that he has informed his medical practitioners of his past illegal use of cannabis. The past usage is specifically noted in the reports prepared by Dr Clarke and Peter Popko, as well as in the clinical notes of Dr McCarthy’s. While it is not specifically mentioned in Dr Adams’ reports, I accept the applicant’s uncontradicted evidence that he informed her.
With this knowledge, the use of medicinal cannabis on an ongoing basis has been recommended by Drs Clarke, McCarthy, and Adams, as well as by Peter Popko.
The respondent also refers in its submissions (see paragraph 125 above) and its 1 December 2021 dispute notice to State Insurance Regulatory Authority guidelines, which it has not produced in evidence. In those circumstances, I do not intend to refer to or rely upon these guidelines.

In considering the matters referred to in Rose and Diab, I find:
(a)    The prescription of medicinal cannabis proposed by Dr Adams is appropriate treatment for the applicant’s back symptoms and associated anxiety and depression – this is clearly the opinions of Drs Clarke, Sheehy, Adams and McCarthy, as well as Peter Popko;
(b)    In relation to alternative treatment, Dr Clarke does not wish to suggest any other interventional strategies while the applicant’s use of medicinal cannabis is effective – otherwise, there is a great deal of medical evidence regarding the ineffectiveness and side effects of the other pain killing medication used by the applicant, and the only medical evidence suggesting a treatment regime not involving medicinal cannabis comes from Dr Gorman – that treatment regime is very similar to the treatment regime being undertaken by the applicant prior to initially trialling medicinal cannabis, being a treatment regime that did not sufficiently assist the applicant with his chronic pain and that in fact has now led to Peter Popko describing the applicant’s situation as extremely severe - Dr Clarke also advises that it is unfortunate that the applicant is back using Tramadol since the respondent ceased approving for him to be treated with medicinal cannabis;
(c)    The costs of the medicinal cannabis treatment cannot be said to be unreasonable or prohibitive having regard to the extent of the back symptoms that the applicant has experienced since 20 July 2009 – in this regard, the respondent’s submissions are silent as to the whether the relevant costs are unreasonable;
(d)    The overwhelming evidence from the applicant and Drs Clarke, Sheehy, Adams and McCarthy as well as Peter Popko, is that when the applicant trialled medicinal cannabis after 24 October 2020, it was highly effective in improving his pain levels, his sleep, his anxiety, and his depression - in my opinion, further treatment with medicinal cannabis therefore “should not be forborne by” the applicant, and.
(e)    Although there are still significant disputes within the medical profession as to the acceptance of medicinal cannabis in pain management, Dr Gorman concedes that it is being used in the treatment of chronic pain (despite warnings regarding its use from the Faculty of Pain Management of the Australian and New Zealand College of Anaesthetists) - there is also in evidence the article authored by Luke Henderson and others which concludes that medicinal cannabis is worthy of consideration in the management of chronic pain - more importantly, in relation to this particular applicant, only Dr Gorman does not accept that medicinal cannabis treatment is appropriate, whereas Drs Clarke, Sheehy, Adams and McCarthy, as well as Peter Popko, accept that it is.
It is now necessary to consider whether there is a material contribution between the injury to the applicant’s back which arose out of or in the course of his employment with the respondent and the prescription of medicinal cannabis proposed by Dr Adams.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy), Roche DP stated:
“58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]. That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
The thrust of the respondent’s submissions (see paragraph 128 above) in this regard is that the applicant was not prescribed medicinal cannabis until after his back condition had been aggravated by performing heavy manual labouring for 10 years after his 20 July 2009 injury, specifically with TCL and Civil Form. While this may be correct, what I need to determine is not whether any such aggravation caused the need for the medicinal cannabis prescription, but rather whether the 20 July 2009 injury materially contributed to the need for the medicinal cannabis prescription.
Most of the applicant’s treating doctors have not addressed the contribution of the 20 July 2009 injury to the applicant’s current back condition. However, Dr McCarthy (who has been involved in the applicant’s treatment since a few months after that injury, and whose opinion is therefore highly relevant) opined that (see paragraph 78 above) 75% of the applicant’s condition was contributed to by his employment with the respondent.
Dr Sheehy also provided a percentage in this regard (see paragraph 54 above) when he opined that 80% of the applicant’s condition could be attributed to the 20 July 2009 injury. Further, Dr Kinny (who was qualified on behalf of the respondent) opined that (see paragraph 105 above) the applicant’s current condition “can quite rightly be regarded as ongoing from the original workplace injury”. Dr Kinny did not believe that the applicant had suffered a “significant new injury event”.
In the light of this medical evidence, as well as in the light of there being no medical evidence to the contrary, I have no difficulty in concluding that the applicant’s current back condition and the need for him to be prescribed medicinal cannabis in order to treat that condition, has been materially contributed to by the 20 July 2009 injury.
As described by the applicant and accepted by his treating practitioners, the applicant’s current back condition involves chronic back pain, radiating down both his legs, and numbness in his feet. This is the condition that Dr Adams prescribed medicinal cannabis to treat (see paragraph 46 above) and the condition recorded by Drs Clarke (see paragraph 61 above) and McCarthy (see paragraph 77 above), who both support the ongoing prescription of medicinal cannabis to treat the condition.
It is the condition that was treated effectively (according to the applicant’s statements and his reporting to various medical practitioners) following Dr Adams’ initial prescription to him of medicinal cannabis on 19 October 2020.
As the applicant’s current back condition has been materially contributed to by the 20 July 2009 injury, so has his need to be prescribed medicinal cannabis as reasonably necessary treatment for that condition.
It remains for me to consider the terms of the orders to be made by the Commission, to support my finding that the medicinal cannabis recommended by Dr Adams is reasonably necessary medical treatment for the applicant as a result of his 20 July 2009 injury.
Specifically, I need to deal with the respondent’s submission at paragraph 126 above. I agree with that submission that there is no evidence as to how long into the future the applicant will require medicinal cannabis treatment. I fail to see support for the applicant’s claim in the ARD that the respondent pay for the treatment for two years.
There is also no evidence as to how often the medicinal cannabis prescription is to be reviewed by Dr Adams. The doctor has not fully outlined her treatment plan for the applicant in her 5 January 2021 report.
However, the report is clear in relation to the type and dosage of medicinal cannabis treatment being proposed by the doctor (see paragraph 48 above). It is also apparent from the report that the future “treatment outcome” expected from the use of medicinal cannabis would be similar to the positive outcome experienced by the applicant after his initial prescription of it on 19 October 2020, following which he “was going very well” (see paragraph 49 above).
In relation to the respondent’s submission that there is no evidence of Dr Adams having obtained approval from the Therapeutic Goods Administration for the prescription of medicinal cannabis to the applicant, I intend to make my findings and orders subject to such approval being granted.
In relation to the prescription of medicinal cannabis to the applicant in the future, I believe that it is reasonable to conclude from Dr Adams’ 5 January 2021 report that she intended to prescribe an ongoing and similar prescription to that which she prescribed on 19 October 2020. There is evidence that the 19 October 2020 prescription was supposed to last the applicant for a month, but the prescription was completed on 24 October 2020 and Dr Adams did not request funding for a further prescription until 5 January 2021 (a period of 73 days).
I have little doubt that Dr Adams intends to prescribe the applicant with medicinal cannabis for a period of longer than 73 days into the future. However, I have no evidence as to the time frame involved. Doing the best that I can, I intend to order the respondent to pay for the prescription of medicinal cannabis to the applicant for a period of 73 days. That is the period during which the applicant was able to use medicinal cannabis with significant effect after its initial prescription to him on 19 October 2020, and it seems clear to me that at the very least, Dr Adams’ report of 5 January 2021 recommended a similar prescription of medicinal cannabis to what she had prescribed on 19 October 2020.
If the applicant then requires the prescription of medicinal cannabis for a longer period than 73 days into the future, he will need to make an appropriate claim upon the respondent in this regard. I currently make no findings regarding the applicant’s entitlements following the period of 73 days referred to above.
In relation to the prescription of medicinal cannabis to the applicant in the past, it seems (see paragraph 132 above) that the respondent has already paid $1,297 of the $1,770 claimed. However, the applicant still claims the full amount of $1,770, and I propose to order that the respondent pay that amount to the applicant, with credit to be given to it for any amounts already paid by it in relation to the specific treatment covered by the $1,770 claimed.

SUMMARY

I find that the prescription of medicinal cannabis (Arizer Solo II Vapouriser Inhalation Device, Beacon Medical THC+F Flower 20% THC Sensi Star Indica Dried Herb, LGP Classic 20:5 Oil, and MGC MP 1:1 Oil) to the applicant as referred to in the reports from Dr Adams dated 19 October 2020 and 5 January 2021, is reasonably necessary medical treatment (so long as approval is obtained from the Therapeutic Goods Administration) as a result of the applicant’s back injury, which arose out of or in the course of his employment with the respondent on 20 July 2019.

I find that I only have evidence before me to allow me to order payment for the costs of and incidental to the applicant being prescribed with medicinal cannabis (as described at paragraph 180 above) into the future for a period of 73 days – if the applicant requires this prescription for a longer period, he will need to make an appropriate claim upon the respondent in this regard – I currently make no determination regarding the applicant’s entitlements following the relevant period of 73 days.
I order that the respondent is to pay to the applicant an amount of $1,770 (with credit to be given to the respondent for any amounts already paid), pursuant to s 60 of the 1987 Act, in relation to the receipts attached at pages 546-548 of the ARD.
I order that the respondent is to pay for the costs of and incidental to the applicant being prescribed with medicinal cannabis (as described at paragraph 180 above and subject to the obtaining of approval from the Therapeutic Goods Administration) for a period of 73 days, pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 473

25 August 2022