Harvey v KW Resort Management Pty Ltd - [2025] NSWPIC 182

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harvey v KW Resort Management Pty Ltd [2025] NSWPIC 182
APPLICANT:	Maddison Harvey
RESPONDENT:	KW Resort Management Pty Ltd
MEMBER:	Kathryn Camp
DATE OF DECISION:	30 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical expenses for medicinal cannabis; accepted injury to the lumbar spine; whether a trial of medicinal cannabis is reasonably necessary treatment; section 60; principles in Diab v NRMA Limited considered and applied; Held – proposed trial of medicinal cannabis is reasonably necessary within the meaning of section 60; respondent to pay the cost of a four month trial of medicinal cannabis.
DETERMINATIONS MADE:	The Commission determines: 1. The proposed four-month trial of “DAYA CBD100 Oil” in the amount of $1,240 is reasonably necessary treatment as a result of injury to the applicant’s lumbar spine on 15 May 2023. The Commission orders: 2. The Application to Lodge Additional Documents and attachments, lodged on 19 March 2025, is admitted into the proceedings. 3. The respondent is to pay the applicant’s reasonably necessary costs of a four-month trial of “DAYA CBD100 Oil”, pursuant to s 60(5) of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns whether a proposed four-month trial of “DAYA CBD100 Oil” recommended by Associate Professor Russo is reasonably necessary pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), in circumstances where it is not disputed that the treatment results from an accepted workplace injury. For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

On 15 May 2023, Maddison Harvey, the applicant worker, sustained an accepted injury to her lumbar spine in the course of her employment with the respondent as a food and beverage attendant. The applicant’s legs gave way and she fell sustaining an injury to her lumbar spine.
The respondent’s insurer issued a notice and review pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998, on 10 May 2024 and
25 July 2024 respectively. These notices declined the applicant’s claim for proposed medicinal cannabis.
On 17 December 2024, the applicant lodged an Application to Resolve a Dispute in respect of a claim for proposed medical expenses in the nature of a trial of medicinal cannabis.
On 17 January 2025, the respondent lodged a Reply.
On 17 February 2025, the parties attended a preliminary conference.
In response to a Direction issued on 17 February 2025, the applicant lodged two separate Applications to Lodge Additional Documents dated 28 February 2025 and 3 March 2025.
On 18 March 2025, the matter proceeded to arbitration hearing during which I granted leave to the respondent to lodge an Application to Lodge Additional Documents. A Direction was issued setting a timetable for lodgment and service of that documentation and submissions.
On 19 March 2025, the respondent lodged an Application to Lodge Additional Documents.
On 27…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2025] NSWPIC 182
Decision Date: 30 April 2025

CaseChat Overview and Summary

The applicant, Harvey, made a claim against KW Resort Management Pty Ltd for medical expenses associated with a trial of medicinal cannabis. The applicant had suffered an injury to his lumbar spine, which was accepted as a compensable injury under the Workers Compensation Act 1987. The crux of the matter was whether the proposed trial of medicinal cannabis constituted reasonably necessary treatment under section 60 of the Act. The case was heard in the relevant Workers Compensation court.

The primary legal issue was whether the proposed trial of medicinal cannabis, which the applicant sought to undertake as a treatment for his lumbar spine injury, qualified as reasonably necessary treatment under section 60 of the Workers Compensation Act. This involved assessing the evidence provided regarding the benefits and necessity of such a trial, and applying the principles set out in Diab v NRMA Limited. The court had to determine if the proposed treatment met the statutory threshold of being reasonably necessary.

The court considered the evidence and found that the proposed trial of medicinal cannabis was reasonably necessary. It relied on the principles outlined in Diab v NRMA Limited, which required a balanced consideration of the nature of the injury, the available treatments, and the likelihood of benefit from the proposed treatment. The court was satisfied that a trial of medicinal cannabis was appropriate in this case, given the nature of the injury and the potential benefits it might provide. The decision recognised the evolving nature of medical treatments and the importance of considering innovative approaches to managing compensable injuries.

The court ordered that KW Resort Management Pty Ltd pay the costs associated with a four-month trial of medicinal cannabis for the applicant. This decision reflected the court's determination that such a trial was reasonably necessary treatment under the Workers Compensation Act.

Orders