Harvey v KW Resort Management Pty Ltd

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 March 2025, the applicant lodged late submissions in response to the Direction.
On 1 April 2025, the respondent lodged submissions in response.
The applicant did not seek an opportunity to lodge any submissions in reply.

ISSUE FOR DETERMINATION

The following issue remains in dispute:
(a) whether the proposed “ADAYA CBD100 Oil (4 Months)” in the amount of “$1,240” is “reasonably necessary” as a result of the accepted lumbar spine injury on
15 May 2023 (s 60 of the 1987 Act).
The respondent concedes that the proposed treatment claimed resulted from the accepted injury to the lumbar spine on 15 May 2023, and only disputes that it is “reasonably necessary” within the meaning of s 60(1) of the 1987 Act.
The amount of compensation at issue in these proceedings is $1,240.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration hearing. Mr Malouf, of counsel, appeared for the applicant instructed by Law Partners. Mr Hickey, of counsel, appeared for the respondent instructed by BBW Lawyers.
During the proceedings:
(a)    the Application to Resolve a Dispute was amended, with consent, to change the claim for proposed treatment to “ADAYA CBD100 Oil (4 Months)” in the amount of “$1,240”;
(b)    the respondent withdrew the dispute that the accepted lumbar spine injury sustained on 15 May 2023 had resolved;
(c)    the applicant’s Applications to Lodge Additional Documents and attachments, dated 28 February 2025 and 3 March 2025 lodged in response to the Direction of 17 February 2025, were admitted with consent into the proceedings, and
(d)    the respondent was granted leave to lodge an Application to Lodge Additional Documents and attachments, attaching the documents attached to Dr Gorman’s report. Reasons were provided during the hearing, which was recorded, and the documents attached are admitted into the proceedings.
The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the hearing. During the hearing, I directed the parties to refer me to the evidence they sought to rely on in support of their case. I indicated that I would only have regard to the evidence they referred me to in their oral submissions in determining the dispute between the parties. The hearing was recorded and is available to the parties.
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)    Application to Resolve a Dispute, dated 17 December 2024, and attached documents;
(b)    Reply to Application to Resolve a Dispute, dated 17 January 2025, and attached documents;
(c)    Direction issued on 17 February 2025;
(d)    Application to Lodge Additional Documents and attachments, lodged by the applicant on 28 February 2025, attaching the medical expenses schedule;
(e)    Application to Lodge Additional Documents and attachment, lodged by the applicant on 3 March 2025, attaching the supplementary report from Associate Professor Russo;
(f)    Medical Assessment Certificate of Dr Bodel, dated 5 February 2025;
(g)    Direction issued on 18 March 2025, and
(h)    Application to Lodge Additional Documents and attachments, lodged by the respondent on 19 March 2025, attaching the annexures to the report of Dr Gorman dated 21 June 2024.

Applicant’s statement

In evidence is the applicant’s statement dated 24 October 2024. She explains that on
15 May 2023 she had a fall and it was later discovered that she injured her spine at S1/L5.
The applicant states that she had a gradual return to work, with restrictions.
The applicant states that on 28 September 2023 she attended on her general practitioner and reported back pain and pain radiating down her leg, and the side-effects she experienced from medication. She requested for her treatment plan to consider CBD Oil as she had tried a family member’s with good affect. She notes that at this stage she had various analgesic medication.
The applicant refers to the various practitioners she attended on for the ongoing symptoms she was experiencing arising from the back injury. She also notes commencing exercise physiology from October or November 2023, which ceased in August 2024.
The applicant states she had a flare up in May 2024, after working for eight hours. She states she had to wear her back brace again.
The applicant states that she should be able to use CBD Oil because she has experienced side effects from simple analgesia. It has provided pain relief and functional capacity increase, and it has been recommended by Associate Professor Russo and Dr Coughlan.

Medical evidence

On 18 May 2023, the applicant attended on her treating general practitioner Dr Cordelia Oyekan-John regarding the injury.
On 22 May 2023, the applicant underwent an MRI of her lumbar spine. The report records a central disc protrusion at L5-S1, without clear evidence of nerve impingement.
On 4 August 2023, the applicant attended on her treating general practitioner Dr Natasha Brown.
On 31 August 2023, the applicant attended Dr Oyekan-John. In the clinical notes she records a future appointment with a neurosurgeon in September 2023. It also records that the applicant has had some “back to back shifts – flared up chronic back pain; pain lower back”. In a separate letter of referral, dated the same, Dr Oyekan-John records that the applicant had recently had a set back with ongoing pain, stiffness and a need to reduce duties.
On 8 September 2023, the applicant attended Dr Brown. In the clinical notes she records the applicant has back pain and pain stopping her from sleeping. She also records the applicant returned to work yesterday and had been struggling with six hours per day – lot of pain at the end of the day. She notes a reduction in hours and weight lifting capability at work. She also notes previous pain medications:
“codeine – syncope
Celecoxib – gastritis, despite esomeprazole 20mg
Endep 20mg – palpitations & limited effect”
On 28 September 2023, the applicant attended Dr Oyekan-John. She records acute on chronic back pain, now describing pains and numbness down the left leg. She also records pain in the back affecting sleep. She further records a referral to a pain specialist and that the applicant is using her “Uncle’s cbd oil. Would like to consider medicinal cannabis”. A referral is made to see Associate Professor Russo.
On 18 October 2023, the applicant attended Associate Professor Russo. Associate Professor Russo records a history of persistent pain, a dull aching pain worst with bending and twisting. He notes that the applicant had trialled CBD Oil which “improved her pain control and improved her sleep”. He records findings on examination and provides a diagnosis of simple musculoskeletal pain with a possible component of lumbosacral nerve root irritation.
Associate Professor Russo recommended that treatment should be “multimodal and consist of” four features. Firstly, over the next four months continuing the CBD Oil but he did not think she would need it long term. He supported a prescription of CBD Oil 100mg bd for a four-month period only. Secondly, the applicant should be considered for a transforaminal injection of local anesthetic and steroid to address the lower limb pain. He notes the applicant is not keen and will put that to one side. Thirdly, the applicant needs work with an exercise physiologist. Fourthly, it is critically important that the applicant is not prescribed any conventional or pure mu opioids as they are unlikely to help her pain. He suggested a review in six weeks and sought approval from the insurer for CBD Oil and an exercise physiologist treatment plan.
On 19 October 2023, the applicant underwent an MRI of her lumbar spine. The report records again L5-S1 central disc protrusion without overt nerve impingement, but this time with a more conspicuous annular tear which can be symptomatic.
On 27 October 2023, the applicant attended Dr Paula Kavalieros, general practitioner. She records that the applicant was recovering from a recent appendicectomy and was unable to tell how her back pain was going due to current Endone use. She also notes the applicant had seen a pain specialist and commenced on CBD Oil.
On 5 November 2023, Dr Marc Coughlan, treating neurosurgeon, provides a report. He records a history of the work injury and notes that the applicant is currently taking CBD Oil and that it is really helping her. He adds that he is “very supportive of her continuing on CBD oil and avoiding the traditional opioids” and continuing seeing an exercise physiologist. He recommends avoiding surgical procedures.
On 7 November 2023, the applicant attended Dr Oyekan-John. She records that the applicant is returning to work on 8 November 2023, working four hours/three days per week. Notes analgesia issued and to avoid opioids/surgical management. A prescription for Nurofen Double Strength and Panadol Osteo is given.
On 17 November 2023, the applicant attended Dr Oyekan-John. A history of the injury is recorded and it is noted that CBD Oil was not approved under workers compensation.
On 17 November 2023, Dr Coughlan reports that there is little difference between the MRI scans. He notes again he is “very supportive of her continuing on CBD oil and avoiding the traditional opioids”. He adds that the applicant should continue with her exercise physiologist and work on increasing her capacity.
On 23 November 2023, the applicant attended Dr Oyekan-John. She records a history of the incident and notes difficulties sleeping and being woken by pain. There is a suggestion for ice cold pack. It notes that MRI scan does not support radiculopathy. A prescription for Gabapentin is given for use before bed.
Also on 23 November 2023, Dr Oyekan-John records that the applicant has intermittent pain in RIF post appendicectomy. She is referred for an ultrasound for abdominal pain.
On 13 December 2023, Associate Professor Russo records a history of the workplace incident. He notes that the applicant’s pain is persistent and it is described as a dull aching pain. He also notes that the applicant had a “trial of CBD oil which has both improved her pain control and improved her sleep”.
Associate Professor Russo refers to his previous recommendations for treatment, which he confirmed. Associate Professor Russo explains that since the above recommendations the applicant had not been approved for CBD Oil and noted the applicant’s struggles with ongoing low back pain. He suggested a trial of Norflex 100mg bd skeletal muscle relaxant to treat the myofascial component of her pain but this was ceased due to side effects. He notes the applicant is underway with a physiotherapist [sic, exercise physiologist], which he considers will assist. He indicated that he would leave the next appointment open.
Associate Professor Russo states that the applicant has already tried CBD Oil and derived benefit from it. On this basis, Associate Professor Russo considered it as “a reasonable conservative strategy to assist in managing her pain and allow her to actively participate in physiotherapy which will allow her to improve her functional capacity”. He latter adds that the potential benefits of medicinal cannabis include:
“…a reduction in pain, reduced anxiety and restoration of sleep. This may lead to an improvement in functional capacity and a return to work outcome may follow from this. However, this is dependent on his response to the recommended treatment and a more definitive answer may be ascertained at the conclusion of the four month trial.”
Associate Professor Russo notes that it is highly likely the applicant has simple musculoskeletal pain and will do well with the treatment recommended. He notes that not all treatment options have been exhausted, and she could be considered for a transforaminal injection of local anesthetic and steroid.
On 18 December 2023, the applicant attended Dr Oyekan-John. She records that the applicant has ongoing pain but relieved somewhat with Norflex. She notes that she will increase the prescription dosage.
On 20 December 2023, Dr Allen Turnbull, orthopedic surgeon qualified by the respondent provides a report. He records a history of the workplace injury and diagnosis of lower back pain due to L5-S1 disc pathology as a result of the workplace incident.
On 15 January 2024, the applicant attended Dr Oyekan-John. She records back pain following packing and moving house but happy to increase working hours to six hours/three days per week. She also notes that the applicant is not taking Norflex “s/e blurred vision” and no gabapentin, but that she takes Panadol and Nurofen.
In February 2024, the applicant attended Dr Oyekan-John. She records some back pain but increases working hours to seven hours/three days per week.
On 12 March 2024, the applicant attended Dr Oyekan-John. She records that the applicant still has some pain, particularly in the mornings. That there is relief with heat packs and simple analgesia.
On 4 April 2024, Dr Coughlan reports that he cannot make any further comment on capacity for work as he had not seen the applicant since November 2023.
On 15 April 2024, the applicant attended Dr Oyekan-John. The last certificate of capacity provides eight hours /three days and four hours/one day per week, with restrictions.
The applicant attends on her general practitioner on a few more occasions, but it is not until 6 May 2024 that it is recorded the reason for visits is workers compensation. A similar entry is recorded on 20 May 2024, but no further details are provided. The clinical records cease on
28 May 2024.
On 5 June 2024, Dr Turnbull records a history of the workplace injury and ongoing low back pain. He suspects that the applicant will always have some activity-related back pain if she continues with her current occupation, but notes that the injury should have fully resolved two years after the incident.
On 21 June 2024, Dr David Gorman, consultant physician in general medicine, qualified by the respondent provides a report. He records a history of the workplace injury, noting the treatment undertaken and that the applicant is able to work eight hours per day, three days per week and one day of six hours per day. He also records that the applicant trialled CBD Oil.
Dr Gorman records ongoing lower back pain and difficulty getting to sleep. However, provides an opinion that the applicant is improving and close to a resolution of her work-related injury. He states that “CBD oil is inappropriate” and not reasonably necessary. He latter adds that:
“it is not an effective analgesic as outlined in the attached recent randomised trial. Medicinal cannabis is not recommended for chronic pain by the Faculty of Pain Medicine - I've attached their position statement and press releases.”
Those Media Releases and position statement are titled “Doctors Urged not to prescribed medicinal cannabis” and “Cannabidiol (CBD) Products for Pain: Ineffective, Expensive, and with Potential Harms”, and have been considered.
Dr Gorman states the applicant does not require any further treatment, and that the exercise physiologist appointments should cease as she is actively self-managing her exercise.
On 9 July 2024, Dr Oyekan-John reports to the applicant’s solicitor that she is unable to provide clinical reasoning to support Associate Professor Russo’s recommendation for CBD Oil as she is not a Cannabis prescribed or pain specialist practitioner. However, she notes that she believes the applicant has been compliant with all recommended “conservative treatment options” and despite her compliance she “still suffers from pain from her original injury”. She notes that this has become less frequent and intermittent and has substantially improved over the course of her workers compensation management. She also records that the pain is located in the lower back rather than the legs now.
On 9 July 2024, Mr Bennett, senior exercise physiologist provides a report that the applicant had completed 40 supervised consultations since 25 September 2023. He also reports that the applicant returned to work but continues to wake up extremely stiff in the morning and her sleep patterns have been a recurring theme since her initial consultation. There is a suggestion of trialing nil restrictions for eight hours/day four days/week. He concludes that the applicant had “improved significantly regarding her psychometric questionnaires and her functional capacity testing results”.

On 30 September 2024, Dr Turnbull records a history of the workplace injury and notes that the applicant has undergone physiotherapy, exercise physiology and medication. He also notes that the physiotherapy and exercise physiology has ceased but the applicant sees a personal trainer twice per week and does an exercise program. He records the applicant is taking Panadol and Nurofen. He further records ongoing complaints of low back pain, with pain radiating into the anterior aspect of her left thigh down to her knee. He finds that the applicant has a compensable back injury due to L5/S1 disc injury.
Dr Turnbull notes that the applicant had returned to work on restricted duties for a period of time and three weeks ago returned to normal work duties and normal hours. He adds that the applicant is coping and work is accommodating, and on occasions she does require help with her duties. He does not consider any added treatment is indicated.
On 2 December 2024, Dr Mark Hardy, addiction medicine, dual diagnosis and acquired brain injury qualified by the applicant, issued a report. Dr Hardy records a history of the workplace injury. He records that while undertaking physiotherapy the applicant noticed a decrease in her conditioning and an increase in her pain and asked to do exercise physiology. He also records the applicant noticed that the analgesia she was taking was unhelpful. He notes the exercise physiology increased her mobility, movement and decreased her pain. He records that Associate Professor Russo recommended purified CBD Oil but this was rejected by the insurer and she had not been given a trial of CBD Oil as recommended. He further records that a graded return to work was undertaken and the applicant was back to full duties.
Dr Hardy records the medication undertaken by the applicant. Codeine caused chest pain, Celebrex caused gastrointestinal reflux, Somac was given to try and relieve those symptoms but caused nausea and chest pain. Amitriptyline caused daytime grogginess. Gabapentin was of no benefit. Dr Hardy records that a transforaminal injection of cortisone was recommended but the applicant is fearful of needles and potential consequences of this intervention.
Dr Hardy records the applicant’s pain at worst is 6/10, noting it had dropped to 1/10 with Cannabis Oil. Dr Hardy also records that the applicant wakes every 1-1.5 hours through the night but when using Cannabis Oil she was able sleep for over 10 hours without interruption. He further records the applicant’s symptoms, to include back pain with stiffness, paresthesia and dysesthesia, with neuropathic pain to the left leg.
In respect of work capacity, Dr Hardy records the applicant is working full-time in her pre-injury duties but that she paces herself for work. He notes that the injury is not affecting the applicant’s employability but may do so in the future.
Dr Hardy records that conservative treatment settled her disc degeneration symptoms and radiculopathy but she is still left with chronic pain which varies. He notes that she has significant pain interference and sleep disturbance. He states that the applicant has trialled all reasonable attempts to ameliorate her symptoms. He finds that “medicinal cannabis may provide improved pain intensity and interference as well as improved sleep”. He adds that it “may ultimately assist her in managing her exercise physiology and conditioning so that she can re-engage fully in her work, recreational and domestic obligations and pursuits”. He recommends a six-month trial of CBD Oil under supervision of Associate Professor Russo.
Dr Hardy then addresses whether the proposed treatment is reasonably necessary. He states that most available and potentially helpful alternative treatments have been tried or considered, with limited success or unacceptable side effects. Medicinal cannabis is likely to be more readily available and has a reasonable potential for benefit. He adds that medicinal cannabis is within the range of helpful treatments, is in line with TGA guidelines for chronic non-cancer pain. She meets the criteria for a trial of medicinal cannabis. Other evidence-based treatments were trialled in hope that they would provide benefit but “some did not”. Evidence of success of medicinal cannabis has been published and carries sufficient weight to support a trial. He explains that the cost is less than $500 per month, and the costs of radio-graphically guided injections, insertion of stimulator devices, and surgery is considerably more expensive than CBD Oil. This treatment has been accepted by medical experts, and while various bodies have published opposition many physicians prescribe it to patients with chronic pain.
Dr Hardy states that the applicant has:
“exhausted or earnestly considered all of her recommended conservative treatment options available. The fact that she has not undergone a transforaminal examination does not exclude her from this criterion. Ernest consideration of a treatment and subsequent refusal to have it for personal reasons is not a contraindication to a trial of medicinal cannabis in Ms Harvey’s case. I would agree that the use of medicinal cannabis is the last option left to relieve Ms Harvey’s symptoms.”
Dr Hardy explains why he disagrees with Dr Gorman’s opinion, he states:
“Whilst the Faculty of Pain Medicine do not endorse use of medicinal cannabis for chronic pain, many pain specialists such as Professor Russo prescribe it regularly. The evidence I have quoted in Question 4 and supplied in my reference list would indicate an alternative view to Dr Gorman’s. Indeed, there are many studies which demonstrate good evidence of benefit for patients with chronic non-cancer pain using medicinal cannabis.”
Dr Hardy adds that there is “significant room for improvement” with CBD Oil, which the applicant discovered in her “brief trial of it”. He adds that sleep is “an excellent secondary sign of pain interference”. He further adds that the applicant has had:
“significant functional losses due to her injury. Across recreation, domestic and her activities of daily living (ADLs) she has significant functional limits. Although she has returned to her pre-injury role, this does not mean she can exist without any treatment. If a work-related injury causes other functional losses (apart from work capacity), treatment is warranted. Importantly, quality of life is a relevant functional goal.”
Dr Hardy refers to documentation annexed to his report, which was not before the Commission. However, it is relevant to note here that the applicant indicated during the conciliation conference and also at the arbitration hearing that there was no intention to rely on that documentation or seek the admission of that material into the proceedings.
On 5 February 2025, Medical Assessor Bodel, issued a Medical Assessment Certificate following an examination on 17 January 2025. Medical Assessor Bodel provides an assessment of the applicant’s whole person impairment at 7% for the injury to the lumbar spine on 15 May 2023. Of relevance, Medical Assessor Bodel records that the applicant is taking Panadol and Nurofen and undergoing gentle exercise. He also records that the applicant has ongoing lower back pain, constant dull aching pain into the upper part of the hamstring on the left-hand side. He notes there is some relief with rest and analgesic tablets. He also notes that the left-sided sciatica on clinical testing had resolved.
In his comments regarding other medical opinions, Medical Assessor Bodel refers to the treatment reports from Associate Professor Russo and notes that he recommended exercise-based programs and CBD Oil. Medical Assessor Bodel notes that Associate Professor Russo is keen to proceed with both treatment options and that “both are indicated”.
On 27 February 2025, Associate Professor Russo provides a further report. In response to a question whether he maintains the proposed treatment plan of CBD Oil recommended on
13 October 2023, Associate Professor Russo states:
“I maintain that the proposed treatment plan of CBD oil remains reasonably necessary. Based on current evidence, CBD oil has shown effectiveness in conditions like chronic pain. No new significant concerns have emerged since October 2023 to suggest otherwise. Ms Harvey has had a trial of CBD oil prior to my initial consultation which as reported by her, improved her pain control and improved her sleep. I have not reviewed Maddison since December 2023.”
In response to a question whether he maintains his previous opinion on the appropriateness and effectiveness of the proposed treatment, Associate Professor Russo states:
“Yes. Following a brief phone conversation by my team with Ms Harvey, her pain continues. She continues to work at pre-injury level which shows a good work ethic despite her current pain complaints. My initial recommendation was for a four month trial in which she could most likely cease after this time. This process and possibility of a progressive recovery has been delayed due to the declinature of the CBD oil from her insurer.”
Associate Professor Russo considers that the applicant’s condition has not resolved. She has failed to respond to more conventional pharmacotherapies and her sleep disturbance and chronic pain are significant concerns. He further states that CBD Oil can provide “both symptomatic relief and improved quality of life for the applicant”.

SUBMISSIONS

The applicant and respondent provided oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant refers to the statement evidence, in particular the reference to the injury and treatment undertaken. The applicant states that she initially had good improvement with medication but then had a flare up and continued to take fairly significant pain medication to bring her pain under control. The applicant states that she requested her doctors to consider CBD Oil as part of her treatment plan and tried a family member’s supply with good effect. She states that she has not felt any relief except the temporary relief from use of the family member’s CBD oil, which helped improved both pain control and sleep.
The applicant then refers to the clinical records. There is a flare up of chronic back pain on
31 August 2023. Then on 8 September 2023 it is noted that there are problems sleeping due to pain. The applicant submits that there is reference to side effects of the medication taken. The applicant then refers to the record that notes previous pain medications such as Sincode and notes gastritis despite Esomiprazol, which is used to prevent reflux, and then Endep and notes palpitations and limited effect. On 28 September 2023, it is noted the applicant is using her uncle’s CBD oil and would like to consider medicinal cannabis.
The applicant submits that she has been compliant with all recommended conservative treatment options, and despite compliance she still suffers.
The applicant then refers to Associate Professor Russo’s evidence. Associate Professor Russo notes that the CBD Oil has improved the applicant’s pain control and sleep, consistent with her statement evidence. Associate Professor Russo then states that the treatment should be multimodal and recommends a trial of CBD Oil for four months. In his further report, Associate Professor Russo says the applicant still has pain and the trial helped the pain and her sleep. He notes the reported side effects of Norflex and that the applicant was undergoing physiotherapy. He repeats the recommendation of the four-month program, noting that she had already derived benefit from medicinal cannabis. It will allow her to improve her functional capacity and actively participate in physiotherapy.
The applicant contends that it is not contested that the applicant had benefits from use of CBD Oil for her pain and sleep.
The applicant concedes that there is a significant gap between Associate Professor Russo’s 2025 report and the last report in late 2023. However, the applicant submits that nothing has changed. Associate Professor Russo maintains that the applicant would still benefit from the CBD Oil trial. The applicant is still in pain, which Associate Professor Russo states his team confirmed with the applicant. Associate Professor Russo says that the recovery has been delayed due to the insurer’s declinature and the applicant’s failure to respond to more conventional pharmacotherapies. He adds that CBD Oil can provide both symptomatic relief and improved quality of life.
The applicant refers to Dr Coughlan’s opinion, which she submits is in support of Associate Professor Russo’s recommendation. He records that the applicant was taking CBD Oil and it was helping. He was supportive of the continued use of CBD Oil and avoiding traditional opioids and surgical procedures.
The applicant also refers to the Medical Assessment Certificate of Medical Assessor Bodel, where he refers to notes that Associate Professor Russo’s recommendation for an exercise based program and CBD Oil is indicated.
The applicant then refers to the evidence of Dr Hardy, who notes the applicant’s ongoing difficulties and symptoms of chronic pain. He also notes that CBD Oil had been tried and it had assisted the applicant with her pain intensity, pain interference and sleep. He notes the applicant had trialled all reasonable attempts to ameliorate her symptoms, and medicinal cannabis may assist in managing her pain and exercise physiology.
The applicant submits that only a modest four-month trial is sought, despite Dr Hardy recommending a six-month trial. Dr Hardy says most available alternative treatments have been trialled and medicinal cannabis has potential benefit. The applicant submits that “it in fact has had a real benefit”. It is within range of helpful treatments. It is in line with TDIA guidelines for chronic non cancer patients, and amongst other things the journal articles demonstrate it can provide a decrease in pain of 30-50%.
The applicant submits that the fact that there are some treatments, an injection or something of that nature that the applicant does not want to have, should not be weighed against her when considering whether CBD Oil should be prescribed.
The respondent’s case rests on the opinion of Professor Gorman. Of the six doctors in total, he is the only doctor that says it is not reasonably necessary. The applicant says that Dr Gorman’s opinion is based on the fact that a “certain body does not recommend” CBD Oil. This has not been fatal to findings in the Commission in an applicant’s favour on an application for medicinal cannabis. That Professor Gorman thinks that there is a faculty that does not recommend CBD Oil does not mean it cannot be reasonably necessary treatment.
The applicant relies on the decision in Diab v NRMA Limited[1] and Rose v Health Commission (NSW)[2]. The cost is not exorbitant and CBD Oil has been effective. That there is a body that does not approve of it is certainly not fatal.
[1] [2014] NSWWCPD 72.
[2] (1986) 2 NSWCCR 32.

Respondent’s submissions

The respondent submits that trial of medicinal cannabis is something of a misnomer. There was no trial. There was no medically approved trial. It is unclear when the applicant undertook the medicinal cannabis, what was taken or for how long. There is no objective evidence to determine that there was in fact an effect. The respondent submits that this is a fatal issue in the case in terms of proving that the treatment is reasonably necessary.
The respondent asserts that Associate Professor Russo last saw the applicant in December 2023, and has not seen or spoken to her since. The opinion that was proffered at that time was based on symptomatology reported in late 2023 and a trial that was said to be effective.
The respondent notes that the applicant attended on her general practitioner on
28 September 2023, where there was a discussion of back pain and side effects she was suffering from use of simple analgesia. The respondent submits that that history should be questioned because it is clear in the clinical notes that follow that the applicant continued taking simple analgesia and still does. However, there is no updated clinical notes from the treating general practitioner and these records ceased May 2024.
The respondent refers to the clinical notes. The respondent submits that the applicant has been taking CBD Oil but her symptoms have not reduced they have increased.
The respondent notes the clinical entries on 13 and 27 October 2023 regarding back pain. The respondent also notes the applicant underwent an unrelated surgery and it was not clear whether Endone was masking her symptoms in her back.
The respondent refers to Associate Professor Russo’s report of 18 October 2023. Associate Professor Russo notes the applicant has trialled CBD Oil which improved her pain control and sleep. However, it is unclear what this was taken in conjunction with, when and for how long. The proposition that there was an established effective trial is not made out on the evidence.
Associate Professor Russo says that the applicant is not undertaking any medication but this is not correct, noting the clinical records. He recommends a multimodal approach that consists of four months of CBD Oil, injection of local anaesthetic, work with an exercise physiologist. He says that it is critically important that she is not prescribed conventional opioids. However, the respondent submits caution should be exercised in finding that that means there is likely to be a reaction because it is equally open to find that he is seeking to avoid drugs that are dependency oriented.
Associate Professor Russo sought a referral for excise physiology and CBD Oil, but the latter was not approved. The applicant has undertaken 40 sessions of physiology which was very effective on the evidence. The recommendation was multimodal to get some improvement at that time. The respondent submits the difficulty for the applicant is that she has not been back to see Associate Professor Russo, but everything has changed. The applicant pursued a path with exercise physiology that had effect. The applicant has not exhausted all treatments. She should consider a further injection but does not want to have steroids. Associate Professor Russo recommends CBD Oil to improve functional capacity and return to work, but the applicant has returned to work full time unrestricted.
The respondent submits that by March 2024, after seeing Associate Professor Russo and Dr Coughlan, the applicant was reporting some pain in the mornings with relief using heat packs and analgesia. The next consultation in May 2024 does not record any reference to pain or sleep. There are no clinical notes from May 2024 to date. In that period the applicant returned to work on full time duties. Associate Professor Russo wants to see a functional increase in capacity and return to work and a reduction in pain levels. The most recent clinical records indicate that pain is being managed with simple analgesia and heat packs.
The respondent refers to the latest report of Associate Professor Russo. He says CBD Oil has shown effectiveness for conditions like chronic pain, but it is unclear whether the applicant has chronic pain as no new significant concerns have emerged. He notes the applicant has failed to respond to more conservative pharmacotherapies, but he has no understanding or record of anything since he last saw the applicant in December 2023 apart from the conversation had with his team. It is difficult to accept Associate Professor Russo’s report where the applicant has not returned, he has not had the benefit of examining her, seeing her or having any relevant evidence in respect of the treating material.
Dr Coughlan reports the applicant is currently taking CBD Oil and is supportive of continuing CBD opioids. However, the applicant had not been taking CBD Oil for months by this stage.
His opinion is very brief and premised on an incorrect history.

The respondent submits that by July 2024 the applicant is compliant with all recommended conservative treatment options and despite her compliance she still suffers from pain. However, this pain has become less frequent and intermittent. Therefore, the respondent submits that the applicant had substantially improved over the course of workers compensation management. In March 2024 the applicant had pain but it was treated with simple analgesics and a heat pack and by August 2024, the general practitioner is signing off on a full return to pre-injury duties.
The respondent submits that Medical Assessor Bodel’s findings that the applicant has no signs of radiculopathy is consistent with Dr Turnbull’s report. This demonstrates that there has been improvement. The respondent states that Medical Assessor Bodel is an orthopaedic surgeon, not a pain specialist, and does not have the appropriate expertise to provide the opinion on treatment. The throw away comment in support of the proposed treatment should not be accepted because it is not made out. The only matter that is binding is in respect of the assessment of whole person impairment and caution should be exercised in finding Medical Assessor Bodel supports the concept of CBD Oil.
The respondent then refers to the evidence of Dr Hardy. In particular, noting that it is reported that the exercise physiology increased the applicant’s mobility and movement and decreased her pain. He records trial of opioids which caused chest pain and tried Celebrex which caused gastro reflux. There is a record that the applicant tried some TCH CBD Oil and found it assisted her pain intensity and pain interference to sleep. However, the respondent submits that there are significant issues based on the history. The symptomatology does not align with what is found by Medical Assessor Bodel, in respect of radiculopathy. The report is affected by the view that there was a trial and that there was some effectiveness with respect to that trial. It is based on the recommendation of Associate Professor Russo, who recommended the treatment for a purpose which is not established as he had not seen her and her circumstances have changed since that time.
The respondent relies on the report of Dr Gorman. Dr Gorman states that the applicant is improving and close to a resolution of the injury. He considers that CBD Oil is inappropriate. He states it is not an effective analgesic and not recommended for chronic pain by the Faculty of Pain Medicine as set out in the media releases annexed to the report.
There are a number of fundamental issues in terms of poof that the treatment is reasonably necessary. The applicant has returned to work full time without restrictions. The evidence does not demonstrate that CBD Oil is effective. The evidence shows a lot of conservative treatment with good effect.
The respondent refers to the criteria in Diab. The respondent submits that it is necessary to look at this through the basis on which the recommendation is made. The applicant has not satisfied the test under s 60 of the 1987 Act.

Applicant’s submissions in reply

The applicant submits that there is no obligation to provide any updated clinical records where there are more recent medical reports.
The applicant contends that her evidence is uncontested and the medical evidence of Medical Assessor Bodel and Dr Hardy recently record ongoing serious issues from the injury. While the applicant went back to work she has not recovered from her injury. The idea that there has been substantial change that would infect some of the history given to the doctors is not made out. There is very clear evidence of ongoing serious incapacity with pain and difficulty with movement. There is some relief from rest and analgesia and while there may be some improvement it has not completely resolved.
The applicant accepts that the description of the CBD Oil tried is not clear. However, what is clear is that the applicant obtained some CBD Oil from a family member. It helped her pain and sleep. This is in her statement and reported to numerous doctors. The CBD Oil must have been taken prior to seeing Associate Professor Russo, as she specifically asked for it in her treatment. It was clearly beneficial but she only needs to show potential benefit. There is no requirement to prove that other medication does or does not work for the applicant to be entitled to medicinal cannabis.
Dr Gorman says the applicant does not require any treatment. This would be a pretty curious and cruel result in circumstances where the applicant is still suffering from the injury on any view of the evidence.
In terms of costs, no submissions were made about this being a problem.
There is no gap in the evidence that would cause any concern, especially where there is consistency in the evidence. The applicant has tried some CBD Oil, it helped and a doctor has accordingly recommended it.

Applicant supplementary written submissions

The applicant submits that one or more medical bodies questions the efficacy of medical cannabis is not fatal to a s 60 claim. It is one of the numerous considerations set out in Diab.
If these documents, annexed to Dr Gorman’s report, were in anyway persuasive, the Commission would have not made orders for the payment of medicinal cannabis previously. The vast preponderance of medical experts support the prescription of medicinal cannabis, despite these documents. It has proven to be beneficial for the applicant and an award should be made in her favour.

Respondent supplementary written submissions in reply

Dr Gorman in reaching his opinion that the treatment is not reasonably necessary referenced the position paper and press releases of the Faculty of Pain Medicine Australia and New Zealand College of Anesthetists and various journal articles. The respondent submits that this material is directly relevant to the considerations outlined in Diab. The respondent maintains that the medical expenses are not accepted by medical experts as appropriate and effective.
The respondent submits that Diab mentions that the effectiveness of the treatment is not determinative. It could be interpreted that the remaining criteria are determinative of whether the proposed treatment should be deemed reasonable.
Each case is dependent on its own facts. The mere argument that a handful of previous matters involving Dr Gorman’s opinion have been decided in favour of an applicant is unpersuasive and of limited weight.
The respondent submits that the applicant has not discharged her onus with respect to the claimed expenses in line with Diab.

FINDINGS AND REASONS

Relevant law

The applicant bears the onus of proof, to establish her case under s 60 of the 1987 Act, on the balance of probabilities.[3] Section 60 of the 1987 Act requires two questions to be answered in the affirmative. The respondent concedes that the proposed medicinal cannabis treatment “results from” the accepted injury. It follows that the applicant is only required to establish the remaining question, namely, whether the proposed treatment is “reasonably necessary”.
[3] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
Whether the proposed treatment is reasonably necessary requires a close consideration of the evidence. It requires consideration of matters of impression and degree, having regard to the available evidence.[4] Deputy President Roche, in Diab,[5] considered the phrase “reasonably necessary” under s 60 of the 1987 Act. Deputy President Roche stated:
“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.”[6] (footnotes omitted)
[4] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; Diab v NRMA Ltd [2014] NSWWCCPD 72.
[5] [2014] NSWWCPD 72.
[6] Diab v NRMA Limited [2014] NSWWCPD 72, [86].
Deputy President Roche then considered the criteria of reasonableness:
“[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) 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’.”[7] (footnotes and citations omitted)
[7] Diab v NRMA Limited [2014] NSWWCPD 72, [88]-[90].

Discussion

The applicant sustained an accepted injury to her lumbar spine in May 2023, for which she sought conservative treatment. There is evidence of ongoing symptoms arising from that injury, including pain in the lumbar spine and sleep disturbance. These symptoms are uncontested and the respondent has properly conceded that the accepted injury has not resolved.
The applicant’s case is that despite undertaking conservative measures to address her symptoms, namely pharmacological treatment and exercise physiology, she still suffers pain. She seeks a trial of medicinal cannabis to address these symptoms, having tried her uncle’s CBD Oil which she states had good effect to alleviate her pain and improve her sleep. For the reasons that follow, I consider that the proposed four-month trial of CBD Oil is reasonably necessary.

Complaint of pain

The respondent’s submissions focused significantly on an absence of contemporaneous treating practitioner records of lumbar spine and related complaint from March/May 2024, as a basis for undermining the recommendation for CBD Oil as a treatment option. This is despite withdrawing the dispute that the injury had resolved. In these circumstances, it is first necessary to address the evidence of complaint of pain and symptoms.
The evidence demonstrates consistent complaint of ongoing low back pain requiring further treatment, despite some evidentiary gaps. In this regard, I acknowledge the gap in the period of time between Associate Professor Russo’s initial recommendation of CBD Oil in October 2023 (and confirmed in December 2023) and the latest recommendation in February 2025. I also acknowledge the absence of clinical records from March/May 2024 regarding complaint of pain and symptoms. However, ongoing complaint of low back pain is supported by the histories recorded in various medical reports and the findings recorded on examination. From March 2024, the evidence records ongoing complaint of lumbar spine pain and associated symptoms requiring treatment and/or attendance for workers compensation recovery by the following practitioners:
(a)    Dr Oyekan-John on at least three further occasions from March 2024, regarding the applicant’s workers compensation matter. She also confirms ongoing symptoms requiring treatment in a report dated 9 July 2024;
(b)    Dr Turnbull, on or about 5 June 2024 and 30 September 2024, when he issues a medico-legal report in respect of the lumbar spine injury;
(c)    Dr Gorman, on or about 21 June 2024, when he issues a medico-legal report in respect of pain management;
(d)    Dr Hardy, on or about 2 December 2024, when he issues a medico-legal report in respect of the lumbar spine injury;
(e)    Medical Assessor Bodel, on 17 January 2025 when the applicant was assessed for whole person impairment of her lumbar spine for the purpose of preparing a Medical Assessment Certificate, and
(f)    Associate Professor Russo, on or about 27 February 2025, when he issues a report in respect of pain management.
The evidence that the applicant has ongoing low back pain as a result of the accepted injury is uncontested. It is also uncontested that the applicant has had this pain notwithstanding a return to work and evidence of undertaking conservative treatment (which includes trialling various forms of conservative medication and undertaking exercise physiology). I draw no adverse inference from the absence of or gap in the medical records, given that the denial of liability for the claim for medicinal cannabis was made initially in May 2024. Following this denial the applicant commenced separate proceedings before the Commission for compensation, in respect of permanent impairment and then latter for medical expenses the subject of the present proceedings.

Reasonably necessary

Turning to the test of reasonably necessity and the criteria in Diab, I make the following comments.

Appropriateness of treatment

I am satisfied that the proposed treatment is appropriate to address the applicant’s symptoms of pain in her lumbar spine and associated sleep disturbance arising from that pain. The medical evidence set out above is supportive that it is appropriate.
Dr Hardy and Associate Professor Russo provide well-reasoned opinions that CBD Oil is appropriate and reasonably necessary. These opinions are supported by the applicant’s statement evidence and history provided to all medical practitioners, namely, that despite use of traditional analgesia she still experiences pain and that CBD Oil has been most effective. These opinions are also supported by Medical Assessor Bodel and Dr Coughlan, and are consistent with the history reported by Dr Oyekan-John. Medical Assessor Bodel, who most recently examined the applicant, recorded ongoing restrictions and pain in the lumbar spine and stated that Associate Professor Russo’s proposed treatment was “indicated”. Dr Coughlan also supported the recommendation for the proposed treatment or “continuing on CBD oil”.
The only evidence in contradiction to the applicant’s case is that of Dr Gorman. Dr Gorman’s opinion has focused on the efficacy of medicinal cannabis. He opines that medicinal cannabis is not appropriate or an effective analgesic. Dr Gorman’s opinion is founded on the basis of the position of medical bodies that medicinal cannabis is not an effective treatment for chronic pain. However, in forming that opinion he does not adequately address the evidence of the applicant’s ongoing symptoms of pain and sleep disturbance and a reduction (and/or likelihood of a reduction) of those symptoms through the use of medicinal cannabis or other treatments.
The respondent referred to media releases and position papers of the Faculty of Pain Medicine Australia and New Zealand College of Anesthetists annexed to Dr Gorman’s report, as supporting a position that medicinal cannabis is not accepted nor an effective treatment. However, the respondent has not clearly explained with any precision how any aspect of those documents would give me cause to treat Associate Professor Russo and Dr Hardy’s opinion with caution. I have had regard to Dr Gorman’s opinion, supported by these documents, but prefer the opinions of Dr Hardy and Associate Professor Russo which are supported by Medical Assessor Bodel, Dr Coughlan and Dr Oyekan-John.
The respondent submitted at length regarding the available evidence. In doing so, the respondent sought to criticise the histories provided to the medical experts with whom supported the proposed treatment. This criticism was made largely on two bases. Firstly, that the history provided regarding a “trial” of CBD Oil was incorrect/incomplete. Secondly, that the practitioners had an incomplete history of the medication taken and the effect. This submission was not clearly developed and cannot be accepted.
It is not expected that a practitioner record every detail of the history reported in forming a medical opinion. Equally, there does not need to be an exact history recorded before it can be accepted that an opinion is made in a “fair climate”.[8] It may not be clear the type of CBD Oil the applicant used. It may also not be clear the period and circumstances of use of the CBD Oil. However, it is not disputed that the applicant tried medicinal cannabis from her uncle, and that it was taken at least prior to 28 September 2023 given the history reported by Dr Oyekan-John. Further, the applicant tried various conservative medications at different times with different effect and this is recorded in the applicant’s statement evidence and the various histories provided to the treating and non-treating medical practitioners. To the extent that the histories are incomplete or incorrect, I do not consider it is fatal to an acceptance of the opinion that medicinal cannabis was effective to treat the applicant’s lumbar spine symptoms and sleep interference given the usage in the past or that it is likely to be potentially effective in the future.
[8] Paric v John Holland Constructions Pty Ltd [1985] HCA 58.
Associate Professor Russo provides an explanation for why he has recommended a four-month trial of CBD Oil. In his February 2025 report, Associate Professor Russo explains that the proposed treatment plan of CBD Oil remains reasonably necessary. He explains that this treatment has proven effectiveness in chronic pain management and that the previous use of CBD Oil had improved the applicant’s pain control and sleep.
While Associate Professor Russo’s recommendation for CBD Oil was initially made on the basis of symptomatology reported in late 2023 and on a basis of a multimodal treatment approach, the applicant’s symptoms remain ongoing. In forming his latest opinion on treatment, he is clearly aware of the applicant’s present circumstances. He notes that the applicant has returned to work at a “pre-injury level”, failed conventional pharmacotherapies and he records that despite this the applicant continues to have pain.
I am reluctant to draw any adverse inference from the fact that the applicant last attended on Associate Professor Russo in December 2023. I accept that his February 2025 opinion was founded in-part on his team’s communication with the applicant about her symptoms of ongoing pain and return to pre-injury work. However, the history recorded is correct. It is consistent with the undisputed evidence that the applicant remains symptomatic, despite the use of conservative treatment and a return to pre-injury duties. Indeed, it is confirmed most recently in January 2025 when Medical Assessor Bodel examined the applicant on behalf of the Commission.

The proposed treatment is clearly appropriate.

Alternative treatment

There are clearly a range of treatments available to the applicant which may alone or concurrently provide relief. However, I am not satisfied that the available alternative treatment including traditional analgesia and injections will necessarily provide the relief sought by the applicant.
The evidence supports that fact that the applicant has undertaken various conservative analgesia, some of which have caused adverse side effects including Celebrex, Sincode, Endep and Norflex. That evidence cannot be contested. Indeed, the respondent conceded that by 2024 the applicant was compliant with all recommended conservative treatment options and still suffered from pain.
It is accepted that the applicant did not seek to undergo the recommended transforaminal injection of local anesthetic and steroid to address the lower limb pain. However, the evidence by July 2024, as reported by Dr Oyekan-John and confirmed by Medical Assessor Bodel in February 2025, is that the applicant’s pain is located in her lower back rather than her legs and signs of radiculopathy had resolved. On one view the basis for the injection now ceases to exist.
The applicant’s symptoms may be intermittent and may have improved with conservative treatment. However, these symptoms persist notwithstanding these conservative measures. That the proposed CBD Oil treatment may not be absolutely necessary or the only treatment that may provide relief does not preclude it from being reasonably necessary.[9]
[9] Diab v NRMA Limited [2014] NSWWCCPD 72, [86] (per Roche DP).

Cost of treatment

The cost of the proposed four-month trial of CBD Oil was estimated on 18 February 2025 to total $1,240. The proposed cost is not prohibitive and has not been put in issue.

Effectiveness of treatment

The actual or potential effectiveness of the treatment is disputed.
I accept, as the respondent submits, there are gaps regarding the use of the uncle’s CBD Oil. That is, it is unclear when it was taken, whether it was taken in conjunction with other medicine or treatment, for what period and at what dosage. However, the uncontested evidence is that it was effective in treating her symptoms of pain and sleep disturbance as a result of the lumbar spine injury. There is no evidence to the contrary.
In any event and contrary to the respondent’s purported contention, whether or not there is evidence to support actual effectiveness of the treatment is not fatal to the applicant’s case. The applicant is only required to establish a potential effectiveness of the proposed treatment. The evidence, which I have referred to above and will not repeat, supports a finding that medicinal cannabis will likely be effective. The evidence, which I accept and prefer, indicates that the trial will assist to improve the applicant’s pain and quality of life.

Acceptance by medical experts

Associate Professor Russo and Dr Hardy provide acceptance for the proposed trial of medicinal cannabis as being appropriate and likely to be effective. Dr Hardy recommends a six-month trial and Associate Professor recommends a four-month trial. The only opinion in contradiction is Dr Gorman’s and, for reasons discussed above, I prefer the opinions of Associate Professor Russo and Dr Hardy.

Totality of factors

I am satisfied that evidence supports that the proposed CBD Oil treatment will likely lead to symptomatic relief and result in the applicant’s improved quality of life. That the applicant has returned to pre-injury employment and had some relief from simple analgesia is not to the point. To her credit, the applicant has participated in a significant exercise physiology program, self manages her exercises with a personal trainer, attempted various forms of medication to improve her symptoms and assist her return to work. Despite all of these efforts and her return to pre-injury duties, the applicant remains symptomatic and makes self-adjustments at work to accommodate these symptoms. It is not unreasonable for an injured worker to seek alternative treatments or therapies to maintain or improve their quality of life. This is exactly what the applicant is attempting to do and there is evidentiary support for the reasonably necessity of the proposed treatment.
The evidence supports that the CBD Oil is a cost-effective treatment option to improve or ameliorate the effects of the applicant’s symptoms arising from the accepted lumbar spine injury, including pain and sleep disturbance. The claim is for treatment for a trial for a limited period of four months and the evidence suggests that the applicant will unlikely need ongoing treatment of this nature. The proposed treatment is both appropriate and likely to be effective to alleviate her symptoms.
Having regard to the totality of factors set out in Diab,[10] I am satisfied that the applicant has discharged her onus of proof on the balance of probabilities that the proposed medicinal cannabis treatment is reasonably necessary as a result of the lumbar spine injury.
[10] [2014] NSWWCCPD 72, [76]-[90] (per Roche DP).

CONCLUSION

The proposed four-month trial of “DAYA CBD100 Oil” recommended by Associate Professor Russo is reasonably necessary treatment pursuant to s 60(5) of the 1987 Act, as a result of the injury to the applicant’s lumbar spine on 15 May 2023.
It follows that the respondent is to pay the costs of the four-month trial of medicinal cannabis recommended by Associate Professor Russo.
Accordingly, I make the orders set out above.

[2025] NSWPIC 182

30 April 2025