Gillard v State of New South Wales (New South Wales Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gillard v State of New South Wales (New South Wales Police Force) [2024] NSWPIC 375
APPLICANT:	Rona Gillard
RESPONDENT:	State of New South Wales (New South Wales Police Force)
MEMBER:	John Wynyard
DATE OF DECISION:	11 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for section 60 medical or related treatment expenses; whether medicinal cannabis reasonably necessary; denial on basis that treatment for sleep disturbance not related to the undisputed psychological injury suffered by policewoman in the course of her employment; denial inconsistent with respondent’s own psychiatrist that sleep disturbance is a recognised symptom of post-traumatic stress disorder; respondent’s pharmacist conducted detailed interviews with claimant’s treating practitioners and supported the claim; Diab v NRMA Ltd, Broadspectrum Australia Pty Ltd v Gunaratnam and Broadspectrum Australia Pty Ltd v Skiadas considered; Held – the proposed treatment is reasonably necessary – respondent to pay the costs of medical or related treatment.
DETERMINATIONS MADE:	The Commission declares: 1. The proposed treatment is reasonably necessary. The Commission orders: 2. The respondent will pay the sum of $1,332 in respect of the cost of treatment to date. 3. The respondent will pay the cost of the following prescriptions for one year from the date hereof: (a) CBD 100 mg / mm x 1.5mls per day; (b) THC 25 CBD 25mg/1 mL per day, and (c) THC Flower to 1g per day via a vaporiser. 4. The respondent will pay the applicant’s costs as agreed or assessed. I certify the matter as complex, notwithstanding the nature of the claim, and order an uplift of 20%, applicable to both parties.

STATEMENT OF REASONS

BACKGROUND

Rona Gillard, the applicant, brings an action against the State of New South Wales (New South Wales Police Force), the respondent, for a declaration pursuant to s 60 of the Workers Compensation Act, 1987 (1987 Act) that cannabis treatment for her psychological injury is reasonably necessary, and for payment of past treatment.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is the prescription of medicinal cannabis reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard on 20 May 2024 by Teams video link. The applicant was represented by Mr Dewashish Adhikary instructed by Ms Nat Butler from Messrs Don Cameron & Associates solicitors. The respondent was represented by Mr John Gaitanis of counsel instructed by Mr Andrew Murphy from Messrs Hall & Wilcox. Ms Anna Petrovich and Ms Josie Natoli appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 4 April 2024 for the applicant;
(c)    Reply and attached documents;
(d)    ALD dated 11 April 2024 for the respondent, and
(e)    ALD dated 15 May 2024 for the respondent.

Oral evidence

No application was made with respect to oral evidence.

FINDINGS AND REASONS
Preliminary

Mr Adhikary advised that he withdrew his reliance on the opinion of Dr Prior pursuant to Regulation 44 of the Workers Compensation Regulation 2016, and that he was relying on the opinion of Dr Alice Neale, consultant psychiatrist dated 29 June 2023. This report was in fact obtained by the respondent’s solicitors.

Background

In its dispute notice dated 14 March 2023 the respondent accepted liability for a psychological injury alleged to have occurred on a deemed date of 25 March 2019.
Ms Gillard had been employed as a police officer since 1999 and ceased work in February 2022. During that time Ms Gillard was exposed to the traumatic events that first responders are typically faced with, and she was bullied and unsupported by management.
The claim relates to the prescription of medical cannabis as a form of treatment for Ms Gillard’s condition.
On 8 September 2022 Dr Dev Banerjee from “Lullaby Sleep” sought approval from the insurer to conduct a sleep assessment.[1] It would appear that trial was approved, and the sleep trial occurred on 17 October 2022.[2] The following day Dr Banerjee sought approval for a trial of cannabinoid treatment.[3] On 25 November 2022 Dr Banerjee gave further particulars and the insurer issued a dispute notice dated 5 December 2022, advising that it was obtaining reports from treating and expert medical practitioners[4] Liability was declined on 14 March 23, 22 May 2023 and confirmed on 27 November 2023 on the advice of Dr Abhishek Nagesh.[5]

Evidence
Ms Gillard statement 16 November 2023
[1] ALD 4.4.24 page 51.
[2] Ibid page 52.
[3] Ibid page 60.
[4] Reply page 3.
[5] Reply pages 6-16.

Ms Gillard made two statements. On 16 November 2023 she outlined the nature of the exposure to the traumatic incidents to which she was exposed, and to the bullying by one of her managers.
At the time she made her statement, she had been prescribed the following medication:[6]
(a)    CBD Oil – 4ml (morning and night);
(b)    THC Oil – 4ml (night);
(c)    Panadeine Forte;
(d)    Celecoxib 200mg (one x capsule, twice daily);
(e)    DHEA 7.5mg (one capsule in the morning);
(f)    Prometrium 100mg (one x capsule in evening), and
(g)    Estrogel Gel (one x pump daily).
[6] ARD page 12 at [38].
Ms Gillard had been attending her psychologist, Mr Ian O’Neill since 7 June 2022. Her general practitioner (GP) was Dr Wendy Su, whom she had been seeing since February 2022. She had been attending consultant psychiatrist Dr Son Nguyen since 31 May 2022.
At [15] she said that she had been diagnosed as follows:[7]
“a)     Post-Traumatic Stress Disorder.
b)      Panic Disorder.
c)      Major Depression.
d)      Insomnia.
e)      L5/SI Disc Herniation (Recurrence 25/10/2022)”.
[7] ARD page 6.
Ms Gillard said she suffered from minimal sleep and interrupted sleep patterns, as a result of which she required medication. She said that when she did sleep, she had troubled dreams and nightmares in which she recalled traumatic incidents from her policing career. She said she was “regularly wired and on edge. My mind constantly races, both day and night, processing situations from my policing career and how this relates to my current life.”[8]
[8] ARD page 6.
Ms Gillard said she was hypervigilant with exaggerated startled responses and often experienced vivid flashbacks.

Statement 8 January 2024

Ms Gillard made a further statement on 8 January 2024. She related that in early 2020 when she was still employed by the NSW Police Force, she began to have difficulties with poor sleep. She said that that predicament continued.
Ms Gillard said that she continued to have minimal sleep and interrupted sleep patterns and described essentially that her condition was similar to that she described in November 2023, that is to say, she was hypervigilant with exaggerated startle responses. She said that she was treated in approximately October 2022 by Dr Dev Banerjee, a sleep and respiratory physician. She was diagnosed with Insomnia and Nightmare Disorder and Dr Banerjee thought that she embodied a hyperarousal state whilst asleep due to her work-related trauma.
Ms Gillard said that Dr Banerjee was an expert in cannabinoid treatment and recommended a course of medicinal cannabis.
Ms Gillard accordingly underwent the course. She said:[9]
“20. Upon undergoing this treatment, I felt that my sleep quality significantly improved and I was able to sleep for longer periods, had reduced nightmares and felt well-rested in the morning.
[9] ARD pages 2-3.
I felt that my anxiety levels were reduced, and I felt more motivated to leave my house and socialise.
I underwent this treatment from October 2022 to April 2023. I unfortunately had to cease this treatment due to affordability issues.
I immediately felt my symptoms return and began to experience heightened anxiety levels and extreme sleep issues once more.”
Ms Gillard said she advised her psychiatrist and was prescribed a course of Seroquel. This medication gave her side effects of headaches, nausea and vertigo, as a result of which she ceased to take that medication.
She made the current claim for the provision of medicinal cannabis, and in a dispute notice of 14 March 2023 liability was admitted for the psychological disorder but the claim for medicinal cannabis was denied on the basis that it was not reasonably necessary.

Treating medical practitioners

Ms Gillard lodged the clinical notes from Mr Ian O’Neill, Ms Gillard’s psychologist, Dr Wendy Su, her GP, Dr Son Nguyen, her treating psychiatrist and Dr Dev Banerjee. Dr Banerjee also issued three reports which it is convenient to deal with below. Mr O’Neill, Dr Su and Dr Banerjee were interviewed by Ms Irean Baritakis, a consultant pharmacist retained by the respondent, whose report is also considered below.
Among the clinical notes was a report from Dr Nguyen dated 4 May 2023, addressed to the insurer.[10] Dr Nguyen said:
[10] Applicant's ALD 4.4.24 page 201.
“She reported deterioration in mood, sleep, increased PTSD symptoms and increased PTSD symptoms and increased Panic Attacks since having to stop cannabis 10 days ago as she has not had funding for it through the insurer. She had been taking THC oil and CBD oil from Dr Banerjee for sleep disturbance related to PTSD and her mental disorders.
On review on 2/5/23, she reported significant benefit from medicinal cannabis in terms of sleep interruption and improved PTSD symptoms.
My apologiess for not not being able to reply to your queries earlier, I had to take medical leave from November 2022 until 30/4/23.
In regard to your queries from 18/11/22:
I recommend that she have review with Dr. Banerjee regarding the medicinal cannabis. He is an expert in this area as far as I am aware and a TGA registered prescriber of medicinal cannabis. I am not an expert in medical cannabis and would defer to his recommendations on that as his/her prescriber. She reported not being able to have follow-up with Dr Banerjee since the initial consultation due to lack of approval from the insurer. I recommend that the insurer approve for her to have follow-up with Dr. Banerjee.
She reported significant discontinuation side-effects from stopping medicinal cannabis and deterioration in mood and sleep. I was concerned about her mental state when I spoke to her on 2/5/23 as she reported decline in mood and daily alcohol use in the previous 10 days since having to stop medicinal cannabis as she cannot afford it without insurance approval.
On review on 4/5/23, she reported severe difficulty coping with severe insomnia and increased anxiety and trouble leaving the house since stopping medicinal cannabis. I have concerns about her deteriorating further and mental health crisis requiring inpatient admission.
On 2/5/23 I asked her trial Seroquel 12.5-25mg BD pm. On review on 4/5/23, she reported significant side-effects on Seroquel including dizziness, nausea and headache. She was able to stay off alcohol for the previous 2 days, but is unlikely to be able to continue on Seroquel for long due to side-effects. She has trialed numerous psychotropic medications in the past and had side effects due to this including Lexapro, Imovane, Melatonin, Valdoxan, Endep, Restavit which have been ineffective for her insomnia or had intolerable side-effects.
She does not have any contraindications for medicinal cannabis as far as I am aware. You should check this with Dr. Banerjee. She does not have past history of Schizophrenia or Bipolar Disorder.
I am not aware of other alternative conventional pharmacotherapy that would be likely to be beneficial to the patient. She has trialed numerous psychotropic medications in the past and had side effects due to this including Lexapro, Imovane, Melatonin, Valdoxan, Endep, Temazepam, Restavit which have been ineffective for her insomnia or had intolerable side-effects.
I recommend that you consider funding for her to resume the previous medicinal cannabis prescribed by Dr. Banerjee until she can review with him again, as she appears to be having significant discontinuation effects and I am concerned about deterioration in her mental state. I recommend that she review with Dr. Banerjee as soon possible.”

Medico-legal
Dr Alice Neale 29 June 2023

As indicated, the applicant chose to rely on the opinion of Dr Alice Neale, who had been retained by the respondent, and not Dr Prior. Dr Neale took an extensive history of the onset of Ms Gillard’s condition. Dr Neale recorded that Ms Gillard had previously been on CBD oil and THC oil “which she found helpful for her sleep …” Dr Neale noted that Ms Gillard discontinued that treatment as she was unable to afford it. She noted that at the date of the report Ms Gillard was prescribed Restavit, a sleeping tablet, and Sifrol for restless legs. Dr Neale took a consistent history of Ms Gillard’s treatment with Dr Su, Dr O’Neill and Dr Nguyen.
She noted that Ms Gillard’s treatment was being managed by her psychologist, Ian O’Neill, over the last two years and her psychiatrist, Dr Son Ngyuen. She noted that with Mr O’Neill Ms Gillard had undertaken EMDR (eye movement of reprocessing and desensitisation), but that her fatigue was a barrier, although they were trying to progress that further.
Dr Neale diagnosed a post-traumatic stress disorder and major depressive disorder. She also diagnosed panic attacks although this presentation did not meet the criteria for a diagnosis of panic disorder. In listing the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-V) criteria for post-traumatic stress disorder Dr Neale highlighted the relevant criteria in bold as it applied to Ms Gillard. At page 142 of the ARD, under criterion (e) (vi) Dr Neale referred, in bold, “sleep disturbance.”
In describing Ms Gillard’s symptoms, Dr Neale said relevantly:[11]
“Ms Gillard said that her symptoms have worsened since leaving work, particularly because of the ‘unknown for the future’. She stated she continues to have difficulties with sleep, particularly staying asleep and waking early in the morning…..
Ms Gillard said that she experiences nightmares one or two times per week and regularly experiences intrusive memories, however, denies any flashbacks of past traumas…
Ms Gillard detailed her daily routine. She said she wakes between 4 am and 8:30 am, drinks coffee and sits with her dog while listening to music. She said she then returns to bed between 9 and 11 am for a few hours. She said she walks her dog two or three times per week though otherwise has few activities. She describes feeling low in her energy and motivation. She said she undertakes few household activities, however, does undertake the vacuuming at her partner's request and prompting. She said that she generally goes to bed at around 10 pm.”
[11] ARD page 134.
At page 139 of the ARD Dr Neale said:
“There was no evidence of inconsistency or exaggeration. The history provided by Ms Gillard was consistent with that provided in the collateral information and her presentation on mental state examination was consistent with her reported symptomatology.”

Dr Dev Banerjee, sleep physician

Dr Banerjee did not advise his qualifications, but in two reports that were lodged on 25 November 2022 and 21 August 2023 respectively, he declared:[12]
“I am a Sleep & Respiratory Physician and one of the top industry experts in cannabinoid medication and treatment of chronic sleep disorders. I investigate and treat an array of illnesses and injuries that impact patients sleep, generally relating from a traumatic event or prolonged exposure to traumatic events over a long period of time as a direct result of the patient’s employment.
My team and I are industry leading experts providing patient tailored cannabinoid treatment specialising in Workers Compensation, First Responders including Police, Fire, Ambulance, Defence (DVA), Health Professionals, Corporate Patients along with associated industries and civilians who are significantly unwell.
My team of Sleep & Cannabinoid Therapists provide clinical and medication titration support to manage every aspect of our patient’s care under my direct supervision.”

25 November 2022
[12] ALD 4.4.24 page 62; ARD page 101.

The report of 25 November 2022 was addressed to the insurer and responded to a questionnaire that had been sent to him. In answer to a question as to how the diagnosis of insomnia, mild severity of obstructive sleep apnoea, nightmare disorder/panic attacks, hyperarousal state/hypervigilance and restless legs related to the treatment he was suggesting for sleep disorder. Dr Banerjee said:[13]
“Insomnia and nightmare disorder in my opinion is a barrier to the successful treatment to her PTSD esp the good work that her Psychologist and Psychiatrist do. Therefore by treating her insomnia with medicinal cannabis will allow her to improve her daytime anxiety, panic attacks in the day, hypervigilance, focus concentration fatigue, memory and reduced trigger events that are debilitating and causes immense issues esp social isolation, difficulty to integrate in society and of course ability to return to some form of work.” (As written).

18 May 2023
[13] ARD page 108.

Dr Banerjee’s report of 18 May 2023 was in fact a progress report addressed to Dr Su.[14] he reported that after treatment began in October 2022 there had been a significant improvement in sleep quality and quantity, and Ms Gillard felt “really well”. She was socialising more, but her symptoms returned when she could no longer afford the treatment. Dr Banerjee noted that Ms Gillard’s anxiety escalated, her sleep became “terrible” and she was unable to leave the house. Seroquel was prescribed but had to be stopped because of side effects nausea, vertigo and headaches. Her insomnia was therefore that stage untreated.

21 August 2023
[14] ARD page 106.

In his report of 21 August 2023 Dr Banerjee took a history that was consistent with Ms Gillard’s statement. He noted that she had been on a course of CBC and THC with significant improvement in her sleep quality quantity. He noted that after her having to cease treatment due to “affordability issues” Ms Gillard’s symptoms returned. “[H]er anxiety has escalated and her sleep is terrible.”
Dr Banerjee advised that medicinal cannabis was warranted in view of the lack of effect by other previous “meds” she had been taking, He made some comments about the report of Dr Nagesh which had been sent to him for comment, and it is convenient to turn to Dr Nagesh’s report at this point.

Dr Abhishek Nagesh 9 February 2023

Dr Nagesh is a psychiatrist who reported for the insurer on 9 February 2023. He took a consistent history of injury and reported the onset of symptoms commencing in “2012/2013”. Dr Nagesh noted symptoms of nightmares, anxiety, panic attacks ,insomnia and flashbacks to the various traumatic incidents she had witnessed. He noted mood swings, irritability, and a diminished ability to concentrate, amongst other symptoms.
Dr Nagesh noted that Ms Gillard had been treated by her GP Dr Su who had referred her to Psychiatrist Dr Nguyen at the St John of God Hospital. Ms Gillard had been seeing Dr Nguyen regularly “over the last 18 months”. Dr Nguyen had prescribed medication for Ms Gillard’s anxiety, depression, and insomnia. She had also been under the care of psychologist Ian O’Neill whom she had also been seeing regularly for the last 18 months. Dr Nagesh said:[15]
“[Ms Gillard] alleged that she developed side effects from being on antidepressant medications hence, she has stopped the antidepressant medication. She allegedly being advised by her psychologist to tried medicinal cannabis and hence, [Ms Gillard] has seen a sleep physician, Dr Banerjee, who has prescribed the medical cannabis, which she says has helped her sleep up to 5 hours.”
[15] Reply page 22.

Dr Nagesh noted however that:
“…the majority of her PTSD and anxiety and depressive symptoms continued to persist and her current symptoms were mood swings, irritability, panic attacks, anxiety, nightmares, flashbacks, lack of energy, lack of motivation, social withdrawal, diminished ability to concentrate, feeling of worthlessness, avoidance of places and things which act as a reminder, being hypervigilant and getting startled easily.”
From Reply 23, Dr Nagesh diagnosed post-traumatic stress disorder and chronic mental depressive disorder. He was asked to respond to a schedule of questions, the first being the identification of the work-related psychological and physical diagnosis for which CB oil had been prescribed. He said:
“[Ms Gillard] states that the CBD oil has been prescribed for her insomnia, post-traumatic stress disorder, and chronic major depressive disorder.”
Dr Nagesh was asked whether CBD oil “is medically accepted as an established and appropriate treatment option for the diagnosis…” He said:
“CBD oil is not medically accepted as an established and appropriate treatment option for the diagnosis provided above. My rational[e] is the evidence for the use of medicinal cannabis in the treatment of mental disorders is very limited and there is no substantial evidence to support its use outside of properly approved research trials for this disorder. Medicinal cannabis is not an approved treatment for the treatment of mental disorder according to the RANZCP therapeutic guidelines.”
Dr Nagesh was asked to comment on how much improvement would be anticipated at the completion of the treatment “with regards to the severity of the injury and affected areas of life.” He said:
“Ms Rona Gillard has been on cannabis oil, so far it is helped only with her insomnia to some degree where she is able to get five hours sleep. With the prescription of cannabis oil, there has not been any improvement with regard to her PTSD, depressive and anxiety symptoms and neither has there been any change in the quality of her life. Hence, no significant improvement can be anticipated at the completion of this treatment with regard to the severity of the injury and her affected areas of life.”
When asked whether medicinal cannabis was “reasonable and necessary” treatment for the compensable condition, Dr Nagesh said:
“Having considered my responses to the above, I do not believe that the medicinal cannabis product being prescribed is reasonable and necessary to treat the compensable condition as there is limited evidence that the prescription of medical cannabis would lead to a substantial improvement in the quality of life and also attenuation of her psychiatric symptoms.
….
This treatment is not likely to change her symptomatology or neither will there be any improvement in her quality of life. CBD treatment is not likely to lead to any increase in functional capacity or amelioration of her symptoms.”

Dr Banerjee’s response 21 August 2023

Continuing with Dr Banerjee’s report of 21 August 2023, with regard to Dr Nagesh’s opinion, Dr Banerjee said:[16]
“Dr Nagesh is incorrect in stating that the medicinal cannabis is prescribed for mental health and depression. The medication is for insomnia and nightmare disorder. There is growing evidence to show the effect of medicinal cannabis for insomnia. The RANZCP guidelines are out of date and written in 2021 and there is growing evidence that medicinal cannabis assists in PTSD. See references below.”
[16] ARD page 103.
Dr Banerjee then referred to 6 papers which were confirmatory of his statement. He estimated that each product would cost as follows:
(a)    CBD 100 mg/mm x 1.5mls per day - $410 per month;
(b)    THC 25 CBD 25mg/1mL per day - $275 per month, and
(c)    THC Flower to 1g per day via a vaporiser - $825 per month.
Dr Banerjee estimated that the treatment would last 3 to 8 years generally and that if the post-traumatic stress disorder and depression remained inadequately controlled, further opinion regarding alternative therapies could be considered.

Dr Nagesh 9 April 2024

The respondent’s solicitors sought further advice from Dr Nagesh, which he supplied in a file review dated 9 April 2024.[17] The solicitors corrected the assumption on which Dr Banerjee had earlier been invited to consider whether the proposed treatment was “reasonable and necessary” by advising him that the correct test was whether the treatment was “reasonably necessary.” Dr Nagesh was referred to an identified “SIRA” guidelines in that regard.
[17] Respondent's ALD 11.4.24 page 1.
Dr Nagesh said:
“With regards to these factors, I do not consider the claimed past medical expenses and future medical expenses to be reasonably necessary and a result of an injury. My rationale is medicinal cannabis is not an accepted treatment for the treatment of major depressive disorder and post-traumatic stress disorder. There is not enough evidence that medicinal cannabis is effective in the treatment of major depressive disorder and post-traumatic stress disorder. There are other available alternative treatments for the treatment of major depressive disorder and post-traumatic stress disorder, and this is not an accepted treatment by medical experts. Hence, I do not consider this treatment to be reasonably necessary.”
Dr Nagesh said that there were a number of alternative medical treatments available, whilst noting that Ms Gillard had reported that she had developed side effects due to her antidepressant medication. Dr Nagesh said that there were however alternative antidepressant medications that could be trialled, as well as transcranial magnetic stimulation (TMS) and electroconvulsive therapy (ECT). For Ms Gillard’s PTSD, Dr Nagesh noted other evidence-based treatments which included EMDR.
Dr Nagesh however advised that Ms Gillard did not require any ongoing treatment. He said that her symptoms had become “chronic, permanent, and stabilised.” Further treatment was “highly unlikely” to “improve the functional capacity.” He suggested that Ms Gillard could continue to see her psychologist over the next six months and her GP on a monthly basis and if she remained stable Ms Gillard could be discharged back to the care of her GP. He concluded by stating that he did not consider the proposed treatment to be “reasonable and necessary.”

Dr Nagesh 9 May 2024

Dr Nagesh was again asked to review the file in a further report of 9 May 2024.[18] He reviewed the clinical records that had been obtained from the treating practitioners. Dr Nagesh advised that he was still of the opinion that the claim for treatment by medicinal cannabis was not reasonably necessary. He repeated his rationale that there was “not enough evidence” to suggest medicinal cannabis is effective in the treatment of Major depressive disorder and PTSD. Dr Nagesh said:
“…Treatment with medicinal cannabis can alleviate some of her symptoms like anxiety and insomnia but it is not going to result in a complete resolution of the psychological symptoms and need to increase in functional capacity…. Medicinal cannabis is not an accepted treatment by medical experts.”

Ireane Bakitaris, pharmacist 18 April 2023
[18] Respondent ALD 15. 5. 24.

A most thorough file report was commissioned by the insurer regarding Ms Gillard’s claim. On 18 April 2023, Ms Bakitaris, a pharmacist, was provided with comprehensive documentation, including reports from Dr Banerjee, Mr O’Neill, Dr Nguyen and Dr Nagesh.
Under the heading “Case Specific Alerts” Ms Bakitaris noted a clinical memorandum from January 2021 regarding the therapeutic use of medicinal cannabis products released by the Royal Australian and New Zealand College of Psychiatrist (RANZCP). She advised that the memorandum noted that the evidence upon which to base an assessment of the efficacy, effectiveness, and safety of medicinal cannabis products was limited, and with regard to the treatment of mental disorders was very limited, there being no substantial evidence to support its use outside of properly approved research trials. Ms Bakitaris said:[19]
“Although the medicinal cannabis is being prescribed for insomnia treatment, it is detailed that insomnia is a symptom of Ms Gillard’s PTSD, and therefore, the treatment is described as potentially also treating the PTSD condition. Medicinal cannabis is not formally approved for treatment of psychological conditions.”
[19] Applicant ALD, 4.24 page 186.
Ms Bakitaris reported that she had contacted the pharmacist who had been dispensing medicinal cannabis since 18 October 2022 and had obtained confirmation of the cannabis usage. She also detailed a conversation she had had with Dr Wendy Su, Ms Gillard’s GP. Ms Bakitaris noted that Dr Su advised that Dr Nguyen had suggested that Ms Gillard cease medication prior to commencing the trial of medicinal cannabis. Dr Hsu advised further that Ms Gillard was self funding of the treatment whilst waiting for funding approval. Dr Nguyen had advised Dr Su that the medications being prescribed were not working and he was comfortable with ceasing them. Ms Bakitaris enquired about any side-effects from the medicinal cannabis and was told that none had been reported, “only improvements in insomnia and anxiety.” There had not been much improvement regarding the post-traumatic stress disorder symptoms, but Dr Su advised Ms Bakitaris that other medications did not work either. Ms Gillard’s insomnia had improved “a lot” and Dr Su reported “how beneficial it is that Ms Gillard has been able to cease all her psychological claim related medications.”
Ms Bakitaris explained to Dr Su that there was very limited evidence to support medicinal cannabis use for the treatment of post-traumatic stress disorder and other psychological conditions, and that it would be difficult to support ongoing long-term use, the inability to drive being a factor that could impact daily functioning.
Ms Bakitaris next spoke to Mr O’Neill, whom she wrongly described as Ms Gillard’s GP. She recorded that Mr O’Neill had been seeing Ms Gillard for a long time, and that throughout her post-traumatic stress disorder treatment, “the biggest hurdle had been insomnia.” Antidepressants, antipsychotics, insomnia medications and medications for restless leg syndrome had all been tried, but none were working, and Mr O’Neill believed that those medications were making Ms Gillard feel worse. Mr O’Neill reported that the medicinal cannabis treatment “has made a big difference to Ms Gillard and in particular, a significant improvement to her insomnia, which previously was her main barrier to improvements.” There had also been, according to Mr O’Neill, “an improvement in anxiety.” Dr O’Neill reported that he had engaged in “all the recommended techniques for insomnia and anxiety and other PTSD symptoms, including Sleep Hygiene, CBT, EMDR etc.”
Mr O’Neill told Ms Bakitaris that previously when he tried to engage in trauma work, Ms Gillard’s insomnia barrier made it difficult, and it was worsening her overall condition. The medicinal cannabis had made Ms Gillard’s mood more even and the improvements in her sleep/anxiety had helped her to be in a psychological state where she could fully engage in psychological therapies. The medications Ms Gillard was on previously, Mr O’Neill said, made her feel like a “zombie,” she was sedated, she had restless legs, and she felt that she couldn’t function properly. Mr O’Neill told Ms Bakitaris that the medicinal cannabis had “led to great improvements to Ms Gillard’s condition.” He also told her that Dr Ngyuen was currently on leave.
Ms Bakitaris then spoke to Dr Banerjee. He told her that he had not reviewed Ms Gillard formally since she first saw her on 17 October 2022, but he went through the clinical therapist’s notes and could see that Ms Gillard was trying to reduce the dose of her medicinal cannabis on account of her inability to fund the treatment. When asked whether there were any notes on post-traumatic stress disorder symptoms in the file, Dr Banerjee said he would have to formally review Ms Gillard before he could give any more information on her overall condition.
In her summary, Ms Bakitaris noted that the medicinal cannabis treatment had been effective in improving Ms Gillard’s insomnia as had been confirmed by her above discussions. She said:[20]
“… The medicinal cannabis was prescribed to treat insomnia, which is a symptom of PTSD, and was the largest barrier to Ms Gillard’s improvements…. Many of the medications Ms Gillard was previously prescribed were to treat insomnia due to PTSD, and they were either found to be ineffective, or were causing side-effects. These medications have all ceased.
As the insomnia is a symptom directly related to the PTSD, and this is the claim related condition, the medicinal cannabis treatment will be considered claim related. In my opinion, the medicinal cannabis treatment has resulted in some positive benefits for Ms Gillard, including improvements in sleep, mood, and anxiety, and the cessation of several medications. …”
[20] Applicant ALD page 192.
Ms Bakitaris stated that the present dose of CBD: THC (Vivace) 25/25mg Oil being used at night, was reasonable. Ms Bakitaris put some limits on the length of time that this treatment should be given, and that after 12 months funding should cease, so that liability should be accepted between October 2022 and October 2023. She recommended that a psychiatrist needed to review her, and that an exit strategy should be employed to avoid cannabis withdrawal symptoms, which can sometimes occur.

SUBMISSIONS

The transcript will show that some questions were directed at Mr Gaitanis regarding the nature of the denial in view of the fact that the conciliation phase of this case had lasted over two hours. Mr Gaitanis outlined in broad terms reasons advanced by the respondent for its denial.

Applicant

Mr Adhikary made some oral submissions before the matter was adjourned for written submissions.
In those oral submissions, Mr Adhikary noted that the denial of treatment appeared to be based on an assertion that there was a lacuna between the symptoms of the insomnia complained of, and for which the medicinal cannabis was sought, and the psychiatric disorder itself.
Mr Adhikary observed that there was no evidence to suggest anything but a link between Ms Gillard’s sleep issues and her psychiatric condition. He submitted that there was no evidentiary basis for such an assertion and referred to the reports of Dr Neale, the treating psychologist, the treating psychiatrist and the GP.
Mr Adhikary noted that the primary basis for the denial of the medication was the opinion of Dr Nagesh. He said however that the three opinions from Dr Nagesh were misconceived, and that he was an outlier in the face of the evidence Mr Adhikary had referred to.
Mr Adhikary then said that the evidence from the treating medical practitioners was consistent, as was also the opinion of a qualified Pharmacist. Dr Nagesh had failed to apply the relevant test, notwithstanding that in the later reports he attempted to backtrack on his misconceived opinion that the test to be applied was whether the proposed treatment was “reasonable and necessary”, when the proper test was whether the proposed treatment was “reasonably necessary”. Seen as a whole Dr Nagesh’s evidence could be seen as being based on the application of a more stringent test than was required. Dr Nagesh’s opinions were dated and misconceived, Mr Adhikary submitted.
Mr Adhikary said that Dr Nagesh was outlier because all of the treaters recommended the provision of medicinal cannabis, as did the Pharmacist retained by the insurer, Irean Baritakis.
Mr Adhikary referred to Siladi v Healthscope Operations Pty Ltd.[21]
[21] [2022] NSWPIC 381.
Mr Adhikary then referred to various paragraphs of Ms Gillard’s statement. He noted that Ms Gillard’s condition of sleeplessness had been present for a number of years and that she had undergone various forms of treatment, of which only the supply of medicinal cannabis had given her relief. Mr Adhikary referred to evidence that demonstrated Ms Gillard had tried medication to alleviate her insomnia, without any success.
Mr Adhikary referred to the clinical notes of Mr O’Neill and entries in the records of Dr Su from 17 August 2021 which corroborated that Ms Gillard was suffering from anxiety and insomnia. They also supported Ms Gillard’s claim that the medicinal cannabis with which she was treated greatly improved her symptoms and that when she could no longer reported her symptoms returned and when she was prescribed Seroquel and Temazepam she had an adverse reaction.
Mr Adhikary also referred to the clinical notes of Dr Nguyen which also corroborated the narrative given by Ms Gillard, he said. The entries referred to Ms Gillard’s complaints about the deterioration in her mood, her increased post-traumatic stress disorder symptoms within 10 days of ceasing medicinal cannabis.
Mr Adhikary continued his submissions in writing. He firstly indicated that he sought to amend the ARD to reduce the duration of her claim from three years to one year in respect of the same medication that was identified in the ARD form. This application was not responded to and on the assumption that silence equates with consent, I shall make that amendment. The respondent has leave to approach in that regard.
Mr Adhikary firstly referred to the evidence of Dr Banerjee. He submitted that the nature of Dr Banerjee’s expertise was clear from the paragraphs to which I referred above, and that there had been no challenge to that expertise. Counsel contrasted the practical nature of Dr Banerjee’s experience with that of Dr Nagesh, whose opinion was merely anecdotal and did consider the actual effects of treatment, nor the facts of the case generally. Mr Adhikary submitted that the history taken by Dr Banerjee was consistent with the contemporaneous evidence in the form of the clinical notes. He submitted that Dr Banerjee addressed the various factors that are relevant to the application of the well-known decision of Diab v NRMA Ltd[22] regarding s 60 (5) of the 1987 Act.
[22] [2014] NSWWCCPD 72.
Mr Adhikary submitted that the respondent’s medicolegal expert, Dr Neale, described Ms Gillard’s symptoms arising from the post-traumatic stress disorder diagnosis as being those that were being treated by Dr Banerjee. There was, it was submitted, no expert evidence that confirmed the issue raised in the respondent’s dispute notice.
Mr Adhikary then considered the evidence from the respondent. He noted the opinion of Ms Baritakis (on whom Mr Adhikary conferred the title of “Dr”) which, he submitted, was expert evidence that the claimed treatment was reasonably necessary. Mr Adhikary noted that Ms Baritakis limited her support for the duration of the administration of medicinal cannabis, but submitted that this caveat was “of no moment” because she was not aware that Ms Gillard had limited the treatment to THC oil as she could not afford the CBD oil or the THC flowers. Further, Ms Baritakis’ advice that the duration of the treatment should be limited ignored the opinion of Dr Banerjee and the expert evidence on which he relied. Further, Mr Adhikary submitted that Ms Baritakis’ claim that there was ‘limited evidence to support ongoing use’ was contradicted by the actual evidence that demonstrated a need for ongoing use.
Mr Adhikary referred to Ms Baritakis’s account of her conversations with Mr O’Neill and submitted that it followed that the only evidence the respondent was relying on to justify its denial was that of Dr Nagesh.
Mr Adhikary submitted that, contrary to the respondent’s position, Dr Nagesh accepted that the symptoms under consideration for treatment were caused by her accepted psychiatric condition. Dr Nagesh was also aware that the alternative treatment Ms Gillard had trialled had caused her to suffer side effects which in turn caused her to cease treatment. Mr Adhikary submitted that Dr Nagesh had been shown to be incorrect when he advised that medicinal cannabis was not accepted as an established and appropriate treatment option. This was made clear by all the other medical evidence in the case. Dr Nagesh was also incorrect, Mr Adhikary submitted, when he sought to limit the effect of the treatment only to the improvement of her insomnia. In fact the benefit obtained from this treatment had been shown to be potentially effective, and it was not necessary for proposed treatment to totally alleviate the condition concerned, all that has to be shown was a potential. Mr Adhikary referred to authority regarding the proposition.[23]
[23] Broadspectrum Australia Pty Ltd v Skiadas [2019] NSWWCCPD 31, Broadspectrum Australia Pty Ltd v Gunaratnam [2019] NSWCCPD 36.

Dr Nagesh was apparently not aware of that distinction, Mr Adhikary submitted, as he was concerned whether the proposed treatment would lead to a “substantial improvement” and an “attenuation of [the] psychiatric symptoms.”
Although Dr Nagesh corrected his misconception as to the proper test in his second report, Mr Carney submitted that Dr Nagesh still missed the point, as he continued to consider whether the proposed treatment would be effective to treat Ms Gillard’s entire psychiatric condition. With regard to Dr Nagesh’s third report, Mr Adhikary submitted that Dr Nagesh was not supplied with Ms Baritakis’ opinion, and was therefore unaware that Ms Baritakis had discussed Ms Gillard’s case with the treatment providers. Dr Nagesh was also unaware of her support for the treatment.
Mr Adhikary concluded his submissions by addressing the question of costs.

The respondent

Mr Gaitanis submitted firstly that the applicant had not obtained evidence as to the impact of the use of medicinal cannabis on the psychological injury itself. Mr Gaitanis referred to the dispute notices that raised the issue as to whether the sleep disorder was a ‘consequential condition’ to the psychological injury or whether it was a symptom. Mr Gaitanis referred to Diab, acknowledging that it and other authorities were important, but he said that there needed to be “a calibration of what is sought to be treated before those factors come into play.” Mr Gaitanis explained, as I understood him, that a decision needed to be made as to whether the impugned treatment would be curative of a consequential condition or whether it would alleviate, on a temporary or permanent basis, the symptoms of sleep disorder. Mr Gaitanis put it another way in posing the question as to “what utility the treatment might have in alleviating or correcting the psychological injury.”
Mr Gaitanis noted that Dr Banerjee advised that Ms Gillard’s insomnia and nightmare disorder was a barrier to the successful treatment of her post-traumatic stress disorder, especially to the work of the treating specialists. Mr Gaitanis challenged Dr Banerjee’s authority to give such advice, pointing out that Mr Banerjee was not a psychiatrist.
Mr Gaitanis then made a series of submissions addressed to the report of Dr Prior, whose opinion, it will be remembered, was not relied on by Mr Adhikary at the opening of the hearing. Mr Gaitanis made a number of submissions as to Dr Prior’s opinion, criticising what he said were several significant omissions. As Mr Adhikary eschewed any reliance on this opinion, I put Mr Gaitanis’s submissions on this subject to one side.[24]
[24] As to admissibility and Regulation 44, see McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96.
Mr Gaitanis then made submissions regarding the report of Dr Neale. He noted the accurate history that she taken, including the helpful effect of medicinal cannabis on Ms Gillard’s insomnia and sleep disorder, before Ms Gillard had to discontinue treatment on financial grounds. Mr Gaitanis referred to some of the history taken, particularly that Ms Gillard would await between 4.00am and 8.30am, drink coffee and sit with her dog whilst listening to music, and then returned to bed between 9.00am and 11,00am for a few hours. Mr Gaitanis submitted that there had been “no annunciation by any practitioner” as to the continuing effect on sleeping or rhythmic patterns in the circumstances that he had just outlined. He asked rhetorically whether medicinal cannabis was the only option open to the applicant and suggested that another solution might be as to the best practice in terms of sleep awareness and the impact of drinking coffee and returning to bed mid-morning.
Mr Gaitanis then referred to the report of Ms Baritakis and noted her advice that funding should not continue beyond 12 months, and that since medicinal cannabis was first prescribed in October 2022 the treatment should cease in October 2023. Mr Gaitanis noted Ms Baritakis suggested that alternative management techniques would need to be implemented when the medicinal cannabis ceased in October 2023.
Mr Gaitanis submitted that there was no evidence that medicinal cannabis treatment when administered assisted in the resolution of the psychological injury, noting that Ms Baritakis acknowledged the limited evidence and was guarded about the use of medicinal cannabis. He also emphasised that Ms Baritakis was a pharmacist and not a medical specialist in the treatment of sleep disorder or psychological injury. Nonetheless, he noted Ms Baritakis advised that as Ms Gillard was on a minimal dose, tapering to cessation would be tolerated well and strategies needed to be implemented to help with ensuring that her sleep remained unbroken and that the psychological symptoms remained stable.
Mr Gaitanis noted that the applicant relied on the opinion of Dr Banerjee, who “operated under the commercial entity of ‘lullaby sleep’ or ‘lullaby health’,” describing himself as a sleep physician or sleep and cannabinoid physician. Mr Gaitanis referred to the declarations of expertise made by Dr Banerjee in two of his reports (reproduced above), submitting that the onus was on the applicant to persuade the Commission of Dr Banerjee’s qualifications and that whilst the applicant submitted that Dr Banerjee’s expertise had not been challenged, it had not been explained whether Dr Banerjee was put forward as a GP, a specialist, or why he was exempt from the rules in relation to the Expert Witness Code of Conduct.
Mr Gaitanis further criticised the report of Dr Banerjee, stating that Dr Banerjee did not know whether, whatever form the medicinal cannabis took, it would assist in “the resolution of the root cause of PTSD.” Mr Gaitanis submitted that the sleep study test itself was not in evidence.
Mr Gaitanis submitted that I would prefer the opinion of Dr Nagesh. Dr Nagesh did not accept that medicinal cannabis was an established or appropriate treatment option in the field of medical treatment. Mr Gaitanis submitted that there was some consistency between the view of Dr Nagesh and that of Ms Baritakis, in that there was very limited evidence as to the efficacy of treatment by medicinal cannabis for mental disorder. It was important that Dr Nagesh advised that there was limited evidence that the prescription of medicinal cannabis would lead to substantial improvement in the quality of life and the attenuation of psychiatric symptoms. Dr Nagesh noted improvement in Ms Gillard’s sleep but submitted that “apart from the sleep” there was no improvement in any other symptoms and that she continued to remain anxious and depressed with her post-traumatic stress disorder symptoms continuing.
Mr Gaitanis submitted that in a further report Dr Negash confirmed that the proposed treatment was not reasonably necessary on the basis that it was not an accepted treatment for Ms Gillard’s psychiatric disorders, neither was there enough evidence that it was effective. Mr Gaitanis relied on Dr Nagesh’s opinion that there were other available alternative treatments.
Mr Gaitanis mentioned some of these suggested treatments and submitted that Dr Nagesh had provided a “valid explanation that the psychological injury can be cured” through the use of traditional treatment which might then alleviate the symptoms of which Ms Gillard was complaining. Dr Nagesh was advising treatment of the root cause of the condition which might then eliminate the symptoms Ms Gillard was suffering.
Mr Gaitanis said that Dr Nagesh’s approach was at odds with that of Dr Banerjee, who said that the alleviation of Ms Gillard’s symptoms would assist in treating the injury. Mr Gaitanis asserted that the applicant’s case did not “in any way” deal with the issue of the treatment of the psychological injury. Ms Gillard sought temporary relief in circumstances where there was no comment as to the effect of the treatment of the psychological injury itself. Mr Gaitanis asked rhetorically whether it would produce further problems in the future, and answered by submitting that this was a matter for a medical specialist, and not a practitioner who specialised in the use of medical cannabis to treat sleep disorders. Mr Gaitanis also noted that Ms Gillard did not seek to rely upon the medical opinions of Dr “Newman” (Nguyen) or Mr O’Neill regarding the utility of treatment by medicinal cannabis.
Dr Nagesh’s approach had significant merit, it was argued, as the treatment must be viewed as a whole. It was not sufficient that the treatment might assist Ms Gillard’s sleep disorder without more, Mr Gaitanis asserted. Dr Banerjee did not have the expertise to comment on the effect of medicinal cannabis on a psychiatric condition. The best Dr Banerjee could reliably assert was that his treatment would assist with sleep disturbance, but he was not qualified to say that it would deal with the root cause of the psychological injury. That, Mr Gaitanis submitted, was the province of the psychiatrist. The psychiatrist that the respondent relied on Ms Dr Nagesh, who said there was insufficient or limited evidence that medicinal cannabis would assist.
Mr Gaitanis took issue with the submission that the respondent was confused as to the consideration of the aetiology of Ms Gillard’s sleep issues. Mr Gaitanis repeated that there was no medical support as to the impact of the proposed treatment on the psychological injury itself.
Mr Gaitanis sought to distinguish the authorities relied on by the applicant regarding the extent of the benefit that might be achieved by the proposed treatment.[25] They could be distinguished because the authorities cited involved treatment following surgical procedures. Mr Gaitanis again returned to his central theme that the reports of Dr Banerjee did no more than address the effect of the proposed treatment on Ms Gillard’s symptoms of sleep disorder but did not adequately address its effect on the psychological injury itself.
[25] Namely, Broadspectrum Australia Pty Ltd v Skiadas [2019] NSWWCCPD 31, and Broadspectrum Australia Pty Ltd v Gunaratnam [2019] NSWCCPD 36.
Mr Gaitanis concluded also with a short submission about costs.

Applicant in reply

Mr Adhikary wrote submissions in reply. They are with the papers and available. I have incorporated them where necessary below.

CONSIDERATION
Legal principles

The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a work place injury as required by s 60 of the 1987 Act was considered in Diab v NRMA Ltd wherein Roche DP stated at [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.”
In Diab Deputy President Roche cited the decision of Judge Burke in Rose v Health Commission (NSW)[26] with approval and stated:
[26] Rose v Health Commission (NSW) [1986] NSWCC 2.
“[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.
[90] While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd[1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia[2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”
The transcript will show that at the outset of the arbitration I noted that the conciliation phase had extended for two hours and I also asked Mr Gaitanis to explain the basis of the denial, and what it was in the evidence that I had missed.
Despite Mr Gaitanis’ best efforts, I remain unconvinced that the denial has any sound basis.

The diagnosis argument

There has been no challenge to the diagnosis relating to Ms Gillard’s condition. Dr Alice Neale, the respondent’s expert, diagnosed that Ms Gillard was suffering a post-traumatic stress disorder and a major depressive disorder.
Mr Gaitanis submitted that it was unclear whether the sleep disorder was alleged as a consequential condition to Ms Gillard’s psychological disorder or whether it was a symptom thereof. Mr Gaitanis submitted that this was a preliminary issue that should be decided before the above principles could be considered. The respondent’s own expert, Dr Neale, stated categorically that “sleep disturbance” was one of the criteria that indicated post-traumatic stress disorder pursuant to the DSM - V, and moreover, one that applied specifically to Ms Gillard.
The criticism made by the respondent that Dr Banerjee was not sufficiently thus loses its relevance. It is correct that Dr Banerjee did not list his qualifications, and that his somewhat self-serving declaration that he was a “top industry expert in cannabinoid medication” left something to be desired as to his capacity to authoritatively state, as he did, that insomnia was a barrier to the successful treatment of Ms Gillard’s post-traumatic stress disorder. However, in the final analysis that criticism falls away, as his expertise is concerned with the quality of sleep and it is indeed a qualified psychiatrist who has made the necessary causal connection.
That conclusion is reinforced by the observations of Dr Son Nguyen, the treating psychiatrist, that once the medicinal cannabis treatment ceased 10 days earlier than his report of 4 May 2023, there was a deterioration in Ms Gillard’s mood and in her sleep. She reported increased post-traumatic stress disorder symptoms and increased panic attacks.
Moreover, Ms Bakitaris, the pharmacist who provided such a detailed and thoroughly researched report for the respondent on 18 April 2023, confirmed that the medicinal cannabis treatment had been effective at improving his Gillard’s insomnia “which is a symptom of PTSD.” Ms Bakitaris must be presumed to have some expertise in the area of pharma psychology and of the causal link between sleep disturbance and post-traumatic stress disorder.
Accordingly, I am satisfied that the condition for which medicinal cannabis was prescribed was a symptom of post-traumatic stress disorder and thus one which could legitimately be the subject of a claim pursuant to s 60(5) for a declaration that it was a form of treatment that was reasonably necessary.

Effective treatment and duration

The argument advanced by the respondent against this form of treatment was only advanced by Dr Nagesh. I note Mr Gaitanis attempted to enrol the opinion of Ms Baritakis to his cause, but her opinion was unequivocal. As indicated, she stated that Ms Gillard’s insomnia was “a symptom directly related to the PTSD, and this is the claim related condition.” She found that medicinal cannabis treatment had resulted in “some positive benefits” which included improvements in Ms Gillard’s sleep, in her mood and in her anxiety. Moreover, it caused the cessation of several medications which had been found to be ineffective and/or to have caused side-effects.
There is some merit in Mr Adhikary’s submission that the recommendations of Ms Baritakis should not be accepted as to the 12-month duration. Ms Baritakis’ report was dated 18 April 2023 at a time when Ms Gillard was still receiving treatment, but which ceased the same month due to lack of funding, which Ms Baritakis was unaware of. In her statement of 8 January 2024, Ms Gillard said that she had been prescribed 0.8mL of CBD oil in the day and night, and 0.8mL of THC oil at night. Ms Baritakis obtained Ms Gillard’s pharmacy dispense history from Pittwater Pharmacy and noted that medicinal cannabis was first dispensed on 18 October 2022 and the most recent dispensing had occurred on 6 April 2023. She noted that the CBD oil was only dispensed once in October.
However, as noted above, Ms Baritakis spoke to Dr Banerjee who, once he had reviewed the clinical therapist’s notes, could see that Ms Gillard was trying to reduce the dose of medicinal cannabis oil to the lowest effective dose because she was trying to save on the cost of her treatment, as she was paying for it herself.
The conversation between Dr Banerjee and Ms Baritakis also evinced that Dr Banerjee would not discuss long-term medicinal cannabis treatment when she asked him about it, because he needed to review Ms Gillard again, having not reviewed her since October 2022.
That review occurred on 18 May 2023, as Dr Banerjee’s report to Dr Su demonstrated. At that time Ms Gillard had not been able to afford the treatment since sometime in April 2023, and her symptoms had returned. Dr Banerjee noted that she restarted Seroquel but had to discontinue because of side-effects. Dr Banerjee recommended that funding be urgently sought for:
“CBD 100mg / ml in the day up to 1.5mls per day and THC 25/CBD 25mg up to 1ml per day. Also to approve cannabinoid specialist support and regular follow ups to monitor progress and to consider the possibility of the TGA approved vaporiser and THC whole flower for triggers, panic attacks and insomnia.”
In his report to Ms Gillard’s solicitors of 21 August 2023, as again indicated, he set out the cost, which has not been the subject of any submission. He also said that the treatment would be medium to long-term and could be between three and eight years. I accordingly have some hesitation in accepting Ms Baritakis’ recommendation that treatment be limited to 12 months between October 2022 and October 2023. The claim has now been amended to a 12 month period, which should begin on the date of this decision.

Dr Nagesh

I am not able to attach much weight to Dr Nagesh’s reports. In the first place, in his advice of 9 February 2023 he was asked to apply the wrong test as to whether the proposed treatment should be approved. He was asked whether the medicinal cannabis being prescribed “reasonable and necessary” to treat the compensable condition, and Dr Nagesh responded that the proposed treatment was not “reasonable and necessary.” In his second advice of 9 April 2024 he stated that the proposed treatment was not reasonably necessary because it was not an accepted treatment and there was not enough evidence that medicinal cannabis was effective in the treatment of major depressive disorders or post-traumatic stress disorders. It was not an accepted treatment and therefore it was not reasonably necessary.

Alternative treatment

Dr Nagesh considered there were a number of alternative medical treatments. He acknowledged that antidepressant medication had developed side-effects for Ms Gillard but he nonetheless suggested there will alternative antidepressant medications as well as TMS, ECT and EMDR. This general statement does not engage with the evidence. Ms Gillard, as reported by her treating psychiatrist Dr Nguyen, had unsuccessfully trialled psychotropic medications, which he listed, as indicated. These included:
(a)    Lexapro;
(b)    Imovane;
(c)    Melatonin;
(d)    Valdoxan;
(e)    Endep;
(f)    Restavit, and
(g)    Temazepam.
Dr Nagesh did not identify which other antidepressant medications he thought might be an alternative treatment, nor did he explain why such a hypothetical medication might be more effective than those Ms Gillard had already tried.
I note also that Ms Gillard was undergoing a course of EMDR with Mr O’Neill in any event, a fact with which Dr Nagesh did not engage. He did not explain why either electroconvulsive therapy or transcranial magnetic stimulation would be an effective alternative treatment. I am not satisfied that there was any effective alternative treatment available.

Appropriateness and effectiveness

That the proposed treatment is appropriate is of little doubt, as Ms Gillard at her own expense has trialled it and found it to have benefited her, giving her a significant improvement. For the same reason, the treatment has shown itself to be effective.

Wrong test for effectiveness

Dr Nagesh did not dispute that the treatment with medicinal cannabis had resulted in an improvement in Ms Gillard’s ability to sleep, but in his first report of 9 February 2023 stated that the majority of her symptoms persisted. Dr Nagesh advised that he did not think the treatment could result in any “significant” improvement. His reason for finding that the treatment was not “reasonable and necessary” was because he did not think that it would “lead to a substantial improvement in the quality of life and also attenuation of [Ms Gillard’s] psychiatric symptoms.”
I have reproduced above in Diab the matters to take into consideration when looking at the question of whether a treatment is reasonably necessary or not. Dr Nagesh has, with respect, applied the wrong test in determining this question. Whether a treatment is effective or not depends on the circumstances of the case, but I do not accept that the authorities cited by the applicant can be distinguished because they were both concerned with surgery.
It has not been suggested that the proposed treatment is designed to produce a substantial improvement in quality of life or the attenuation of Ms Gillard’s psychiatric symptoms. The treatment is to ameliorate one of the symptoms of her condition – her sleep disturbance. Ms Gillard herself noticed the beneficial effect of this treatment, which I have referred to above. She felt that her sleep quality significantly improved, she could sleep for longer periods, had reduced nightmares and felt well rested in the morning. Her anxiety levels were reduced, and she was more motivated to leave her house and socialise. This positive response was corroborated by Dr Su, Mr O’Neill and Dr Banerjee in the discussions reported by Ms Bakitaris. The benefit of the treatment was described by Ms Bakitaris in that it had improved Ms Gillard’s sleep, her mood and her anxiety and thus improved her insomnia, a symptom of post-traumatic stress disorder, and the largest barrier to the improvement of Ms Gillard’s post-traumatic stress disorder and major depression. Moreover, the treatment had enabled her to cease several medications. I therefore consider the proposed treatment be effective.

Acceptance by medical experts

The remaining ground raised by the respondent was that the applicant had not shown that medical experts accepted the treatment as being appropriate and effective. Dr Nagesh advised that this treatment was not accepted, as there was not enough evidence that medicinal cannabis was effective in treating major depressive disorder and post-traumatic stress disorder. As was submitted by Mr Adhikary, Dr Nagesh was an outlier in this respect and there was no support for this opinion within the evidence. There was unanimity amongst the experts in this case that medicinal cannabis was both appropriate and effective.
Dr Nagesh also referred to the RANZCP therapeutic guidelines in his report of 9 February 2023, noting that medicinal cannabis was not there listed as an approved treatment for mental disorder. I accept that may be so, but this area of therapeutic treatment appears now to be more frequently used, from the experience of the Commission itself, and it may well be that the guidelines are now out of date, being published in 2021.
I accept Dr Banerjee’s evidence as to the nature of the proposed treatment and will make an order in the terms of the commodities described in the Medical, Hospital or Related expenses claim in the ARD form.
On the applicant’s application I amend the ARD form under the heading “Medical, Hospital or Related expenses” to reduce the number of years claimed from 3 to 1.
Accordingly, I make the orders and findings described above.

[2024] NSWPIC 375

11 July 2024