Littlefield v Leading Edge Maintenance Services
[2024] NSWPIC 120
•12 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Littlefield v Leading Edge Maintenance Services [2024] NSWPIC 120 |
| APPLICANT: | Benjamin Littlefield |
| RESPONDENT: | Leading Edge Maintenance Services |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 12 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation, weekly payments and section 60 treatment expenses; applicant had accepted injury to lumbar spine; injury to thoracic spine agreed at hearing; agreed award for the respondent in claim for injury to the left hip; by consent injury to lumbar and thoracic spine referred to Medical Assessor; claim for weekly payments discontinued; remaining issue in dispute whether treatment with medicinal cannabis reasonably necessary; no dispute applicant had severe pain following injury and continuing pain following surgery; no dispute he had been able to reduce and then cease use of addictive opioid medication; criteria in Diab v NRMA and Couch v Electus Distribution considered; Held – finding that proposed treatment is reasonably necessary. |
| DETERMINATIONS MADE: | By and with consent of the parties: 1. As previously accepted, the applicant suffered injury to his lumbar spine arising out of or in the course of his employment with the respondent on 14 July 2017. 2. The claim for weekly compensation is discontinued and the requirement to file a notice of the election to discontinue is dispensed with. 3. Award for the applicant in the claim for injury to the thoracic spine. 4. Award for the respondent in the claim for injury to the left hip. 5. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment of the applicant’s whole person impairment as follows: (a) Date of injury: 14 July 2017 (b) Body systems/parts to be assessed: (i) thoracic spine, and (ii) lumbar spine. (c) The documents to be referred to the Medical Assessor are: (i) Application to Resolve a Dispute and attachments, and (ii) Reply and attachments. The Commission determines: 6. Treatment with cannabis oil is reasonably necessary as a result of the applicant’s injury. |
STATEMENT OF REASONS
BACKGROUND
Benjamin Littlefield, the applicant, was working as a maintenance officer for Leading Edge Maintenance Services, the respondent, on 14 July 2017 when he lifted a bed weighing approximately 100kg and felt sharp pain in his back. The respondent accepted liability for injury to his lumbar spine and paid weekly compensation for 260 weeks to 6 July 2022.
By dispute notices issued on 27 July 2020, 10 August 2021 and 20 September 2023, the respondent disputed Mr Littlefield’s claim that he had suffered injury to his cervical spine, thoracic spine and left hip. The respondent also disputed his claim for treatment by way of surgery to his lumbar spine and for cannabinoid treatment, and his claim for lump sum compensation for permanent impairment.
On 31 October 2023, Mr Littlefield commenced proceedings in the Personal Injury Commission (the Commission) claiming weekly payments from 7 July 2022 and continuing, lump sum compensation for permanent impairment, and medical expenses.
At a telephone conference on 29 November 2023, Mr Littlefield discontinued his claim for weekly payments.
At the start of a conciliation conference on 7 February 2024, parties advised that they had reached agreement that there would be an award for Mr Littlefield in the claim for injury to his thoracic spine and an award for the respondent in the claim for injury to his left hip. Parties agreed that the injuries to his lumbar spine and thoracic spine should be referred to a Medical Assessor for assessment of whole person impairment as a result of the injury on 14 July 2017.
ISSUES FOR DETERMINATION
The parties agree that the issue remaining in dispute is whether cannabis oil treatment is reasonably necessary as a result of Mr Littlefield’s injury.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
At the conciliation conference and arbitration hearing on 7 February 2024, Mr Littlefield was represented by Mr Goodridge of counsel, instructed by Ms Seymour. The respondent was represented by Mr Gaitanis of counsel, instructed by Mr Orr. As noted, parties reached agreement on most matters, leaving only the dispute concerning cannabis oil treatment for determination.
Mr Goodridge asked to have noted one “small objection” to a statement in a report from pharmacist, Luke McGrath[1] in which he noted an emergency department report dated 27 October 2018 which recorded that Mr Littlefield reported smoking marijuana. Mr McGrath stated that it was unclear if this related to medicinal marijuana but, from information available to him, access to medicinal cannabis was legalised in Australia in 2019. Mr Goodridge said this last date was incorrect and he referred to amendments to the Narcotic Drugs Legislation Act 1967 and the Therapeutic Goods Administration Act 1989 by which access was legalised from 2016. Mr Goodridge said the incorrect date might “flavour the mind” of a decision-maker. Mr Gaitanis had no objection to Mr Goodridge’s objection being noted.
[1] Reply page 25.
Parties agreed that, since Mr Littlefield made his statement of evidence dated 10 October 2023, the cost of his cannabis prescription of approximately $200 per week had reduced by approximately 25%.
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 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 Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents,
(b) Reply and attached documents,
(c) Applications to Admit Late Documents (AALD) lodged by the applicant on 2 February 2024 and 5 February 2024, and attached documents.
Oral evidence
Neither party sought leave to adduce oral evidence or to cross-examine any witness.
Mr Littlefield’s evidence
Mr Littlefield provided statements of evidence dated 21 February 2022[2],17 October 2023[3] and 30 November 2023.[4] Only those parts of his statements relevant to the issue for determination are recounted here.
[2] ARD page 1.
[3] ARD page 5.
[4] Applicant’s AALD lodged 5 February 2024.
In his statement dated 21 February 2022, Mr Littlefield described how on 14 July 2017 he felt “the immediate onset of significant pain” in his back when he lifted a bed weighing approximately 100kg. He was taken to Westmead Hospital by ambulance. In the course of subsequent investigations, he was found to have a syrinx, or cystic lesion, in his thoracic spine. Prior to those investigations, he had no idea the syrinx existed and he had “never had any prior issues” with his back which had been “entirely asymptomatic”.
Mr Littlefield stated that, since his injury, he had lived with “significant pain, restriction of movement and disabilities on a day to day basis”. Over time, his symptoms worsened and became increasingly debilitating and overwhelming in all aspects of his life. He developed incontinence and difficulty controlling his bladder. Pain radiated through his back and hips into his legs, and he required multiple attendances to hospital by ambulance when he was unable to cope with his injuries and disabilities. He had developed depression and anxiety, he could not sit or stand for long periods, he had difficulty walking on uneven ground and up and down stairs, and difficulty bending, squatting, pushing, pulling, lifting and moving any object. He had been unable to participate in the recreational activities he once enjoyed.
Mr Littlefield stated that “the constant pain has become overwhelming” and the only way he could deal with it was to take increasing amounts of opioid medication including Endone and Norspan, and he also tried to use hot packs and creams for relief. Despite these, his pain continued unabated, and at times, the medication led to him becoming unwell and experiencing episodes of nausea. When he changed his Norspan patch each week, he would be left “out of action” for a whole day with extreme nausea while his body adjusted.
Mr Littlefield stated that, to try to gain control of his neuropathic pain and reduce his reliance on medication, he began taking medicinal cannabis in 2019. He found it had “a significant impact” on his pain levels and provided great relief. It reduced his general nausea as well as the nausea after changing his Norspan patches. It had allowed him to reduce the medication he relied on to the point that he only needed a cannabis treatment and patches. Without it, his pain increased.
Mr Littlefield stated that self-funding the treatment was “a huge financial burden” of approximately $1,500 per month.
In his statement dated 17 October 2023, Mr Littlefield referred to the continuing effects of his injuries and to lumbar spine surgery which he underwent through the public hospital system which had led to “significant improvement”. He had been able to wean himself off the addictive opioid medication that he had needed since his injury. Before the surgery, he was taking large amounts of pain medication, including Endone and Lyrica. Because of their concerns about his continued use of opioids, his doctors recommended a trial of cannabis oil, which he began taking several years before the surgery. With the cannabis oil, he could cease all painkillers and tablets, including Endone and Lyrica, and only needed the Norspan patches. Since the surgery, he has been able to get off the Norspan patches and relies on the cannabis oil only.
A/Prof Tillman Boesel’s reports
Pain medicine specialist, A/Prof Tillman Boesel, reported on 23 July 2018 to Mr Littlefield’s general practitioner, Dr Amin Mutasim.[5] He noted that Mr Littlefield had had 15 admissions to hospital due to pain exacerbations and that he reported a range of pain-related symptoms and reduced functionality. A/Prof Boesel noted that Mr Littlefield’s medications include Lyrica and oxycodone of “extremely variable intake”.
[5] ARD page 49.
A/Prof Boesel described Mr Littlefield as a “complex patient with onset of symptoms after work related injury”. He recommended treatment including Norspan patches with associated reduction in Endone and a multidisciplinary pain program comprising clinical psychology, pain physiotherapy and pain education. He recommended he review Mr Littlefield in four weeks and said he was concerned about his medium to long term prognosis.
On 20 August 2018, A/Prof Boesel reported to Dr Mutasim that he had reviewed Mr Littlefield that day for pain management. Mr Littlefield felt he had made some progress with pain control on the Norspan patches. He had had only one presentation to an emergency department since his initial review.
A/Prof Boesel said Mr Littlefield should attend for hydrotherapy and he had told Mr Littlefield he needed to “make some endeavours to functionally rehabilitate”. He said Mr Littlefield’s Norspan patch could be “up-titrated” with further titration possible. He said he would review Mr Littlefield in late October/early November.
For reasons which are not clear, there are no further reports from A/Prof Boesel in evidence. Dr Dias noted in a report dated 27 June 2023 (below) that Mr Littlefield had attended on Dr Boesel until mid-2022.. Mr Gaitanis made submissions (below) as to the inference that might be drawn from the absence of further reports.
Dr Wong’s report
Dr Gal Wong provided a report dated 20 May 2019 addressed “To Whom It May Concern”.[6] For reasons which are not clear, Dr Wong appears to be located in Victoria. He stated that he had consulted with Mr Littlefield who had “applied for and approved by the TGA” for use of cannabis oil as detailed in his report. Dr Wong described the benefits of the medication as “helped with neuropathic, pain, twitches, muscular pain, spasms”, and “walking better”, “appetite improved” and “stopped vomiting and nausea”. He stated that the duration of treatment was “ongoing”.
[6] ARD page 56.
Dr Vickery’s report
Psychiatrist and pain management consultant, Dr Graham Vickery, saw Mr Littlefield for assessment on 12 November 2019 at the request of the respondent. He provided a report dated 26 November 2019.[7]
[7] Reply page 1.
Dr Vickery noted that Mr Littlefield was managed on Norspan patches, Endone, Lyrica, Tilray and cannabis oil. He noted that Mr Littlefield did not use recreational drugs. Mr Littlefield reported that he had commenced using cannabis oil in June 2019 and had noticed a significant improvement in his balance, a reduction in pain levels, and reduction in nausea and vomiting due to the Norspan patch. He had reduced his use of Endone and Lyrica to about once a week.
Mr Littlefield reported that cannabis oil was requested for the syrinx pain and lower back injury pain. Dr Vickery said his opinion, on the basis of the known pathology, was that cannabis oil was requested mainly for the lower back pain.
As to whether medicinal cannabis therapy was appropriate in Mr Littlefield’s case, Dr Vickery cited at some length from publications including Guidance for the Use of Medicinal Cannabis in Australia by the Department of Health Therapeutic Goods Administration in December 2017. The Therapeutic Goods Administration (TGA) noted there was “no robust data” regarding the consequences of commencement of a medicinal cannabis product in cases of chronic non-cancer pain which was likely to expose a patient to life-long use. Dr Vickery cited an undated publication from the Faculty of Pain Medicine, Australia and New Zealand College of Anaesthetists on medicinal cannabis in patients with chronic non-cancer pain, which concluded “at the present time” there was insufficient evidence to justify endorsement of its use. Dr Vickery also cited a study by Stocking et al which noted cannabinoids overall were associated with a reduction in pain but concluded it was unlikely they were effective for chronic non-cancer pain.
Dr Vickery said:
“I would agree with the indication of medicinal cannabis for the treatment of resistant neuropathic pain within a ‘study’ protocol as outlined below. However, the benefits versus risk profile of any THC component is not acceptable from a psychiatric perspective, and in my opinion, should not be approved.”
Dr Vickery concluded medicinal cannabis “is appropriate for the neuropathic lower back pain” and is “accepted as a treatment modality for neuropathic lower back pain.” Asked if he recommended alternative treatments, Dr Vickery stated there are “no alternative treatments”.
Dr Dias’ reports
Occupational physician, Dr Uthum Dias, saw Mr Littlefield for independent assessment and provided reports dated 3 February 2022[8] and 27 June 2023.[9]
[8] ARD page 64.
[9] ARD page 85.
In his first report, Dr Dias noted that Mr Littlefield had “continued to suffer with ongoing severe neuropathic spinal cord pain affecting his thoracic, spine and lumbar spine”, as well as muscular pain in his left hip, over the four and a half years since the accident. He had been treated non-surgically with regular chiropractic treatment sessions, regular use of opiate based analgesia, simple home exercises and stretches, and occasional use of topical ointment and hot packs.
Dr Dias noted that Mr Littlefield had used medicinal cannabis since 2019, which had “significantly alleviate[d] his symptomatology on a day-to-day basis” and allowed him to reduce the number of analgesic and anti-inflammatory tablets he took daily over the previous two years. He noted that Mr Littlefield said he had not had regular physiotherapy, hydrotherapy, or a gym-based exercise program; he had not had cortisone injections or surgical intervention, although decompressive lumbar spine surgery had been recommended. He noted that Mr Littlefield remained under the care of A/Prof Boesel with whom he followed up approximately every one to two months.
As to current treatment, Dr Dias noted that Mr Littlefield reported using a Norspan patch and he also used medicinal cannabis and inhaled vaporised dried cannabis flower, “one to two puffs every one to two hours, which significantly alleviates symptomatology associated with his conditions on a daily basis.” Mr Littlefield said the use of medicinal cannabis had enabled him to significantly reduce his dependence on other analgesic medications such as Endone and Lyrica over the previous three years.
With respect to future non-surgical future treatment, Dr Dias said Mr Littlefield had chronic neuropathic spinal pain and was likely to continue to benefit from the use of medicinal cannabis “on an ongoing basis indefinitely into the foreseeable future.” He disagreed with the opinion of Dr David Gorman (below). He said Mr Littlefield “has objectively benefited from utilisation of medicinal cannabis over the course of the past three years”; it had given him symptomatic relief and enabled him to “rationale [sic] his medication” and reduce his reliance on other heavy analgesic medication such as Endone and Lyrica over the previous three years. Dr Dias recommended other forms of future treatment including physiotherapy/chiropractic sessions, “judicious use of analgesias” and regular follow-up with a pain medicine specialist four times a year.
In his second report, dated 27 June 2023, Dr Dias recorded that Mr Littlefield said that, following his last assessment in February 2022, his back pain and lower limb pain had worsened to the point where he was essentially bedbound and reliant on heavy opiate-based analgesia and medicinal cannabis on a daily basis. He noted that Mr Littlefield underwent spinal surgery on 29 October 2022. The surgery gave “significant improvement” in his lower back and bilateral lower limb pain and his functional capacity tolerances had improved significantly, but he continued to have moderate lower back pain and lower limb radicular symptomatology.
Dr Dias noted that Mr Littlefield had not had any rehabilitative, physiotherapy or other allied health involvement for management of his conditions since February 2022. Aside from the lumbar spine surgery, medical management had consisted primarily of daily reliance on medicinal cannabis, regular use of Norspan patches, home exercises and regular use of topical appointment and hot packs. Mr Littlefield said he had been able to come off opioid based analgesia over the previous two to three months, and now managed his symptoms by daily use of medicinal cannabis. Dr Dias noted that Mr Littlefield last saw A/Prof Boesel in mid-2022.
Dr Dias took a history that Mr Littlefield ceased using Norspan patches in April 2023 and was currently primarily dependent on medicinal cannabis prescribed by an authorised cannabis prescriber.
Dr Gorman’s report
Pain medicine specialist, Dr David Gorman, saw Mr Littlefield at the request of the respondent on 30 July 2021 and provided a report dated 3 August 2021.[10] He reviewed extensive documentation including reports from Dr Vickery and A/Prof Boesel.
[10] Reply page 33.
Dr Gorman noted that, on 26 November 2019, Dr Vickery approved the use of medicinal cannabis. He noted Dr Vickery’s comment that he agreed with the indication of medicinal cannabis for the treatment of resistant neuropathic pain within a study protocol, but that the benefits versus risk profile for any tetrahydrocannabinol (THC) component was not acceptable from a psychiatric perspective and should not be approved.
Dr Gorman noted that Mr Littlefield had continued on Norspan patches and “THC/CBD” and that he now used a cannabis flower preparation in a vaporizer. He noted that Mr Littlefield said the medicinal cannabis helped with his pain but Dr Gorman observed that his weight had dropped, and he had become “grossly de-conditioned and inactive.”
As to treatment, Dr Gorman noted that he understood Mr Littlefield had had very little in the way of physiotherapy; he reported extensive periods on opioids including Endone, and that “nothing had helped”. Dr Gorman noted a discharge referral from Accident and Emergency dated 27 October 2018 in which Mr Littlefield was “reported to be smoking marijuana socially.”
Dr Gorman noted that Mr Littlefield’s only current treatment was the Norspan patches, and the medicinal cannabis which Mr Littlefield said meant he had not had to present to hospital.
Dr Gorman said Mr Littlefield had been treated with medicinal cannabis for around 18 months with no improvement in function; in fact, he had deteriorated and was deconditioned with decreasing levels of function. Dr Gorman said the treatment had continued without the reviews suggested by Dr Vickery in late 2019. He said Mr Littlefield should have exited from the initial “trial” of medicinal cannabis, and its continuation with THC and cannabidiol oil (CBD) was contrary to Dr Vickery’s advice. In Dr Gorman’s opinion, Mr Littlefield had been “overtreated with inappropriate medicinal cannabis.”
Dr Gorman noted reports suggesting that Mr Littlefield see a pain management team and consider an active exercise physiologist program/hydrotherapy program, and said he would agree with this.
Dr Gorman stated that the proposed treatment with medicinal cannabis was not medically appropriate and was not supported by Dr Vickery, who only supported the use of CBD oil. He said Mr Littlefield had had a long trial of around 18 months during which time his function had deteriorated; he continued to have pain and was deconditioned; the use of THC/CBD would stop him driving and would stop him rehabilitating to many workplaces. Dr Gorman referred to a Faculty of Pain Medicine press release in 2021 stating that medicinal cannabis should not be used for chronic pain. He said Mr Littlefield should be gradually weaned off it over a two-month period and should then continue on the Norspan patch.
Mr McGrath’s reports
Pharmacist, Luke McGrath, was asked by the respondent to undertake a file review. He provided reports dated 7 July 2021,[11] 8 October 2021[12] and 28 February 2022.[13]
[11] Reply page 20.
[12] Reply page 42.
[13] Reply page 46.
In his first report, Mr McGrath noted Mr Littlefield’s treatment history. He noted a report dated 25 June 2019 from injury management consultant, Dr Greg Cameron,[14] recommending a multidisciplinary approach to pain management and that Dr Cameron noted that Mr Littlefield had been able to reduce his medication intake as a result of medicinal cannabis oil. He noted a discharge referral from Camden Hospital on 27 October 2018 which recorded “smokes, socially smokes marijuana” which Mr McGrath thought may have been recreational use recorded by the hospital. He referred to legalised use of cannabis oil from 2019 which parties agree is incorrect.
[14] Dr Cameron’s report is not in the documents lodged with the Commission.
Mr McGrath said it was clear from file documents that Mr Littlefield had suffered significantly as a result of his injury. Management had largely been unsuccessful, with ongoing pain that was not relieved by chiropractic massage or analgesia, but he said there “appears to have been self-reported improvements resulting from medicinal cannabis use.” He referred to the Royal Australian College of General Practitioners position in 2019 highlighting the need for “further high-quality research into the safety and effectiveness of medicinal cannabis products” and that current evidence was “limited and inconclusive”. He said he was unable to determine the treatment goals for the medicinal cannabis trial or the monitoring arrangements. He said he had seen “a number of medicinal cannabis trials for the treatment of chronic noncancer pain with both positive and failed trials”. In most cases, successful trial resulted in improved functionality, improved pain management, and a cessation of opioid or other addictive medications. He concluded:
“Noting in this case that Ben reportedly sleeps 16 hours a day, does not participate in any kind of physical exercise or therapy, and continues to use conventional opioid buprenorphine and continues Lyrica, some years on from initiating a medicinal cannabis trial, in my opinion, I would deem the medicinal cannabis trial unsuccessful.”
Mr McGrath reported that he had spoken to Dr Wendy Tyshing who prescribed medicinal cannabis to Mr Littlefield. She confirmed this was the only prescribed product and others that had been used in the past had ceased. She said the treatment would continue as long as it was offering him benefit.
Mr McGrath said he also spoke to general practitioner, Dr Sukhvinder Virk, who said he had not referred Mr Littlefield for medicinal cannabis and did not have an opinion on its use. He said he had recently made a referral to A/Prof Boesel on 18 May 2021 but he could not confirm whether Mr Littlefield had attended.
Mr McGrath concluded that medicinal cannabis was not reasonably necessary treatment for Mr Littlefield’s injury. He said its prescription is to improve function, reduce pain and reduce other potentially high-risk medications, and there was limited evidence to support its use in the treatment of chronic non-cancer pain at this time.
In his report dated 8 October 2021, Mr McGrath reiterated his opinion and stated that he believed the cessation of medicinal cannabis following a two-month waiting period was reasonable.
In his report dated 28 February 2022, Mr McGrath reported that he had spoken again with Dr Virk. There had been no change in the medications prescribed for Mr Littlefield since they last spoke, but Dr Virk had referred him to A/Prof Boesel and this appointment had apparently gone ahead. Dr Virk confirmed that Mr Littlefield remained on Norspan and cannabis. He confirmed that Lyrica had remained ceased.
Dr Sheehy’s reports
Neurosurgeon, Dr John Sheehy, saw Mr Littlefield for assessment on 10 June 2020 and provided a report dated 29 June 2020.[15] He noted that Mr Littlefield’s present treatment was his reliance on cannabis and chiropractic treatment, and said these “treatment, modalities should continue indefinitely.” He said he did not feel that the prognosis for “improved functional outcomes in all life domains” was good, and he did not support surgical intervention.
[15] Reply page 10.
A/Prof Miniter’s report
Orthopaedic surgeon, A/Prof Paul Miniter, saw Mr Littlefield for assessment on 7 September 2023 and provided a report dated 20 September 2023.[16] He was provided with reports from Dr Sheehy and Dr Dias. His report is directed principally to Mr Littlefield’s physical injuries.
[16] Reply page 50.
A/Prof Miniter noted that medicinal cannabis was Mr Littlefield’s only medication. He noted scans of his lumbar and thoracic spine. He described Mr Littlefield physical presentation as “bizarre” and said his physical signs were inconsistent and he could not identify clear evidence of a neurological lesion. He said no diagnosis explained Mr Littlefield’s presentation and, in his opinion, “the matter is dominantly entirely nongenuine or psychiatric.”
Other than noting that Mr Littlefield said medicinal cannabis allowed him to stop various other medications which he felt were “significantly affecting his life to the contrary”, A/Prof Miniter did not comment on whether medicinal cannabis was reasonably necessary treatment.
Correspondence sent to Dr Dua
The ARD includes a copy of a prescription dated 17 October 2023 issued by Precision Pharmacy.[17] It shows that cannabis indica was supplied to Mr Littlefield on 4 October 2023 on a script issued by Dr Divyanshu Dua with 10 repeats.
[17] ARD page 167.
The AALD lodged on behalf of Mr Littlefield on 2 February 2024 comprises correspondence by letter and email from his solicitors to Dr Dua.
By letter dated 23 November 2023, the solicitors referred to Dr Dua as the prescribing doctor for Mr Littlefield’s medicinal cannabis and attached a prescription that listed him as the prescribing doctor. The letter attached reports from Dr Vickery, Dr Gorman and Mr McGrath and draws his attention to comments regarding the effectiveness (or lack of) medicinal cannabis in Mr Littlefield’s circumstances, and asks for his opinion about when he first saw Mr Littlefield, the history he obtained, whether he believed the use of medicinal cannabis was reasonably necessary in his circumstances, and whether his views differed from those of Dr Vickery, Dr Gorman, or Mr McGrath.
Emails show that Dr Dua had apparently moved address and could not be located. Mr Goodridge submitted that the documents attached to the AALD show that attempts had been made to obtain a report from Dr Dua and to counter any submission as to the inference that should be drawn from the absence of a report from him.
SUBMISSIONS
The applicant’s submissions
Mr Goodridge submits that the use of cannabis oil is now reasonably well-recognised in the Commission. He cites the decision in Couch v Electus Distribution[18] in which Phillips P affirmed the criteria by which claims for reasonably necessary treatment are to be determined and said each case is to be determined on its facts.
[18] [2023] NSWPICPD 8 (Couch).
Mr Goodridge submits that there is no dispute that Mr Littlefield was entirely asymptomatic, including the pre-existing syrinx, prior to his injury. Mr Goodridge refers to Mr Littlefield’s statement that the amount of medication he was taking previously caused episodes of nausea and he had extreme nausea for a whole day each time he changed his Norspan patches. He started using cannabis oil in 2019 prior to which the insurer had not disputed the need for the treatment. Mr Littlefield’s evidence is that use of cannabis oil allowed him to reduce his high-level opioid use to nil.
Mr Goodridge submits that Mr Littlefield underwent lumbar spine surgery which gave him significant improvement, but he still had severe pain. He was able to wean himself off strong medication by means of cannabis oil. Mr Goodridge submits that it is clear that use of cannabis oil has given him significant benefit.
Mr Goodridge submits that the respondent seems to object to the use of cannabis oil as treatment for “political reasons” which, in Mr Goodridge’s submission, are outdated and not in keeping with modern medicine. He submits that the respondent seems to object also because Mr Goodridge was started on a trial, suggesting that it was meant to be for a short time only.
Mr Goodridge refers to A/Prof Boesel’s report that Mr Littlefield had been on strong medications, including Lyrica and oxycodone (Endone), up to 10 tablets a day. Mr Goodridge refers also to Dr Wong’s report that Mr Littlefield had been approved for use of cannabis oil by the TGA. In Mr Goodridge’s submission, his report shows that Dr Wong was not some “vogue, Nimbin practitioner” who thought it was a good idea, and he lists the benefits of the treatment for Mr Littlefield.
Mr Goodridge submits that it is clear from Dr Dias’ reports that he approves of the treatment which he said had reduced Mr Littlefield’s dependence on other medications. Dr Dias disagreed with Dr Gorman and said Mr Littlefield has benefited over the past three years from the treatment. In Mr Goodridge’s submission, Dr Dias’ report is important because Dr Gorman says there is no objective evidence of improvement.
Mr Goodridge submits that Dr Dias’ report shows that Mr Littlefield ceased using Norspan patches in April 2023. He submits that the documents in the AALD show all the attempts made to obtain an up-to-date report from Dr Dua who is the current prescribing doctor.
With respect to Dr Vickery’s report, Mr Goodridge submits that he records that Mr Littlefield commenced using cannabis oil prescribed by Dr Wong around June 2019; it improved his vomiting and nausea, and reduced his pain levels and he had reduced his use of Endone and Lyrica to less than once a week.
Mr Goodridge submits that Dr Vickery seems to have no difficulty with the proposition that cannabis oil is a reasonable response to back pain. However, when asked if it is appropriate for Mr Littlefield, he becomes “political” rather than purely medical and cites the TGA report from December 2017 which noted there was “no robust data” regarding the consequences of commencement of a medicinal cannabis product in cases of chronic non-cancer pain which was likely to expose a patient to life-long use. He submits that Dr Vickery cites an undated publication from the Faculty of Pain Medicine, Australia and New Zealand College of Anaesthetists on medicinal cannabis in patients with chronic non-cancer pain, which concluded “at the present time” there was insufficient evidence to justify endorsement of its use.
Mr Goodridge submits that Dr Vickery goes on to cite the study by Stocking et al which noted cannabinoids overall were associated with the reduction in pain, but concluded it was unlikely they were effective for chronic non-cancer pain.
With respect to Mr McGrath, Mr Goodridge submits that he lists all the documents provided to him but does not say what weight he attaches to any. He notes that Mr Littlefield has clearly suffered significantly. Mr Goodridge submits that Mr McGrath apparently considered it part of his brief to “ring around doctors” including Dr Virk who is not a prescribing doctor.
Mr Goodridge submits that Dr Gorman noted that Dr Vickery approved the use of cannabis oil, but went on to say the treatment is not acceptable. Mr Goodridge submits that this does not make sense. Dr Gorman noted that Mr Littlefield’s only current treatment was Norspan and cannabis oil and that he no longer needed to attend hospital but then says Mr Littlefield was treated for 18 months with no improvement in function. Mr Goodridge submits that the reasons advanced by Dr Gorman do not support his conclusion.
With respect to the criteria in Diab v NRMA,[19] Mr Goodridge submits that the evidence is persuasive that treatment with cannabis oil has improved Mr Littlefield’s pain levels; he has tried many other treatments and none has been as effective; and it is clearly accepted by experts. With respect to the cost of the proposed treatment, Mr Goodridge submits this must be considered in the context of the serious pain it is needed to treat.
The respondent’s submissions
[19] [2014] NSWWCCOPD 72 (Diab).
Mr Gaitanis submits that the evidence must be persuasive for Mr Littlefield to succeed, and I must be actually persuaded based on cogent evidence. As to Mr Goodridge’s reference to “political statements”, Mr Gaitanis submits that is not relevant. He submits that doctors may take different views, some more progressive than others.
Mr Gaitanis submits that Mr McGrath cannot be criticised for talking to other health professionals in order to learn relevant information. Mr Gaitanis submits that Mr Littlefield has seen a number of doctors, including Dr Al Kawajah and Dr Kam, and it is unusual that none have provided reports supporting the use of cannabis oil. Mr Gaitanis submits that Dr Dias provided reports but he has no experience in cannabis oil as a treatment.
Mr Gaitanis submits that Mr McGrath’s reports should be considered carefully because he refers to the risks associated with cannabis oil.
Mr Gaitanis submits that A/Prof Boesel describes Mr Littlefield as a complex patient and is concerned at his long-term prognosis. A/Prof Boesel says Mr Littlefield needs a multidisciplinary approach to pain management rather than medicinal cannabis. Dr Virk indicated he had referred Mr Littlefield to Dr Russo but Mr Littlefield did not see him, and there is no further report from A/Prof Boesel. Mr Gaitanis submits that pain management is clearly a problem for Mr Littlefield, and the absence of further reports from A/Prof Boesel, who was treating him for pain management, is a lacuna in the evidence.
Mr Gaitanis further submits that, although Mr Littlefield’s solicitors evidently tried to obtain a report from Dr Dua, there is no explanation as to why they did not obtain reports from other doctors.
Mr Gaitanis submits that A/Prof Miniter found Mr Littlefield’s presentation bizarre and unusual, and concluded that he was not genuine. Mr Littlefield admits that he has used marijuana in the past, which Mr McGrath notes as a risk factor in treatment with cannabis oil. Further, the reports show that Mr Littlefield is sleeping up to 16 hours a day, raising questions as to the effectiveness of the treatment. In the circumstances, Mr Gaitanis submits a real question is raised as to whether the treatment is really helping at all; if it will not increase Mr Littlefield’s functionality, it cannot be said to be reasonably necessary treatment.
Mr Gaitanis submits that there is no report from a pain specialist as to alternative treatments. He submits that Mr Littlefield seems to say that he has tried all other treatments and medicinal cannabis is the only thing that is left.
Mr Gaitanis submits that it seems that Mr Littlefield is not interested in other treatments, and an important aspect is whether he has exhausted others before he moves to an addictive treatment. It may well be that his pain has decreased, but there has been no improvement in his functionality, and the evidence indicates that he has been over-treated with cannabis.
Mr Gaitanis submits that A/Prof Boesel, who is Mr Littlefield’s treating pain specialist, would be best placed to provide a report, and the inference is that a report would not have helped. He submits that Dr Dias is an occupational physician, not a surgeon, and his report should be given little weight.
With respect to Dr Vickery, Mr Gaitanis submits that, reading the literature he has cited, it is clear that he does not support treatment with cannabis oil. Mr McGrath and Dr Gorman do not support it either.
Submissions in reply
In reply, with respect to Mr McGrath, Mr Goodridge submits that his only professional expertise is in pharmacy. Mr McGrath does not profess to know more than any other pharmacist. Furthermore, all his reports pre-date the surgery on 28 August 2022. Mr Goodridge submits that, when Mr McGrath refers to how disabled Mr Littlefield was, and his lack of functionality, he was referring to a time pre-surgery. The evidence is that he has improved since the surgery. Mr Goodridge submits that Dr Dias provided reports before and after the surgery and noted the improvement.
CONSIDERATION
Section 60(1) of the Workers Compensation Act 1987 (1987 Act) provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
There is no dispute that Mr Littlefield suffered injury to his lumbar spine and aggravation of a previously asymptomatic condition in his thoracic spine on 14 July 2017. The thoracic spine injury is perhaps of lesser significance in the current claim because the evidence indicates that cannabis oil was prescribed mainly for the lower back injury.
The issue for determination is whether cannabis oil is reasonably necessary treatment for Mr Littlefield’s injury. He bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[20] and Nguyen v Cosmopolitan Homes.[21]
[20] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[21] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
There is no dispute that Mr Littlefield’s lumbar spine and thoracic spine were asymptomatic before the injury on 14 July 2017. As I understand the evidence, there is no dispute that he suffered severe neuropathic pain as a result of that injury, and still suffers serious pain. A/Prof Miniter found his presentation “bizarre” and either “non-genuine or psychological” but no other doctor, including those qualified by the respondent, expressed doubt about the severity of his pain.
The absence of any further report from A/Prof Boesel is troubling. He was the treating pain specialist. Two reports from him are in evidence, both dated mid-2018. He recommended treatment including Norspan patches with associated reduction in Endone, and a multidisciplinary pain program including hydrotherapy, and said Mr Littlefield should “make some endeavours to functionally rehabilitate”.
Mr Littlefield told Dr Dias he had not undertaken hydrotherapy, and there is limited evidence of other forms of rehabilitation and pain management undertaken. Dr Dias reported that Mr Littlefield had been treated non-surgically with regular chiropractic treatment sessions, regular use of opioid medication, simple home exercises and stretches, and occasional use of topical ointment and hot packs. He noted that Mr Littlefield said he had not had regular physiotherapy, hydrotherapy or a gym-based program, and he had not had cortisone injections.
Without further reports from A/Prof Boesel, it is not possible to know what he thought of these particular forms of treatment and the extent to which, if at all, they met his recommendations.
Dr Dias noted in his report dated 27 June 2023 that Mr Littlefield had attended on A/Prof Boesel until mid-2022 and that Mr Littlefield had followed up with him approximately every one to two months. Mr Littlefield has not disputed Dr Dias’ report and he has not provided any explanation as to why no further reports are available from A/Prof Boesel.
That said, I do not think this is necessarily fatal to Mr Littlefield’s claim. Even if it were assumed that A/Prof Boesel did not support treatment with cannabis oil, there is other evidence to be considered.
In Couch, the worker sustained a lumbar spine injury. In proceedings in the Commission, he claimed that medicinal cannabis was reasonably necessary treatment for his injury. The Member found that the worker had succeeded in establishing all of the “Diab criteria” save as to cost. As I understand the respondent’s submissions in this case, no issue is raised specifically as to the cost of the treatment.
President Phillips observed at [65] in Couch that this area of workers compensation law is well settled. He cited Burke CCJ in Rose v Health Commission (NSW) where he said:
“It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.”
President Phillips continued (at [66]):
“Related to what Burke CCJ said in Rose, s 60 of the 1987 Act was extensively canvassed by Deputy President Roche in Diab. The Deputy President in Diab from [76]–[91] reviewed the authorities and settled upon the approach to be taken in matters such as this. In particular of relevance to this appeal are the Deputy President’s remarks in Diab at [88] and [89]:
‘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 ... 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.’” (emphasis added).
100.President Phillips described the criteria in Diab as “merely useful heads for consideration”, the essential question being whether the treatment was reasonably necessary. In the matter under appeal, he said the Member had approached the criteria “not as useful heads for consideration but rather as a confined list of matters that an appellant is required to establish in order to gain an award under s 60 of the 1987 Act.”
101.Mr Littlefield’s undisputed evidence is that he had severe pain as a result of his injury and had his doctors recommended a trial of cannabis oil which he began taking several years before the lumbar spine surgery in October 2022. He found it had “a significant impact” on his pain levels and provided great relief. It reduced his general nausea as well as the nausea he experienced after changing his Norspan patch. It allowed him to wean himself off the addictive opioid medication that he had needed since the injury. He was able to reduce and then cease the medication, including Endone and Lyrica, that he relied on to the point that he only needed a cannabis treatment and Norspan patches; without it, his pain increased. He states that, since the surgery, he has been able to cease using Norspan patches. His evidence about this is not disputed.
102.Dr Vickery’s report appears contradictory in parts. He noted that Mr Littlefield had commenced using cannabis oil in June 2019 and had noticed a significant improvement in his balance, reduction in pain levels and reduction in nausea and vomiting due to the Norspan. He had reduced his use of Endone and Lyrica to approximately once a week. It does not appear from his report that Dr Vickery doubted Mr Littlefield’s reported benefits of cannabis oil.
103.Dr Vickery cited publications which noted there was “no robust data” concerning the consequences of commencement of a medicinal cannabis product in cases of chronic non-cancer pain which was likely to expose a patient to life-long use, and which concluded there was “insufficient evidence” to justify endorsement of its use, and a study which noted that cannabinoids overall are associated with the reduction in pain, but was unlikely to be effective for chronic non-cancer pain. Dr Vickery said the benefits versus risk profile of any THC component is not acceptable from a psychiatric perspective, and should not be approved.
104.Having said that, Dr Vickery concluded that medicinal cannabis “is appropriate for the neuropathic lower back pain” and is “accepted as a treatment modality for neuropathic lower back pain.” Asked if he recommended alternative treatments, Dr Vickery stated there are “no alternative treatments”.
105.Dr Gorman noted at the start of his report that Dr Vickery approved the use of cannabis oil. Dr Gorman concluded that treatment with medicinal cannabis was not medically appropriate and was not supported by Dr Vickery, who only supported the use of CBD oil.
106.Considering the apparent contradictions in his report, I do not think Dr Vickery’s report really assists either Mr Littlefield or the respondent.
107.Dr Dias saw Mr Littlefield in February 2022 and June 2023. He noted the various forms of non-surgical treatment and other forms of treatment that he had not undertaken. Dr Dias noted that Mr Littlefield said the use of medicinal cannabis had “significantly alleviated his symptomatology on a day-to-day basis” and allowed him to reduce medication. He considered Mr Littlefield was likely to continue to benefit from the use of medicinal cannabis “on an ongoing basis indefinitely into the future.”
108.In his first report, Dr Dias noted that surgery had been recommended and said Mr Littlefield should undertake other forms of treatment including physiotherapy/chiropractic sessions, judicious use of analgesia, and regular follow-up with a pain medicine specialist. In his second report, he noted that Mr Littlefield had undergone spinal surgery. He had not had any rehabilitative physiotherapy or other allied health involvement since February 2022, and medical management consisted primarily of daily reliance on medicinal cannabis, and Norspan patches which he had ceased altogether in April 2023. He was still having moderate back pain. Although not entirely clear, it appears that Dr Dias considered Mr Littlefield’s regime sufficient to manage his pain because he did not suggest additional forms of treatment.
109.Dr Dias said he disagreed with Dr Gorman’s comment that there was no objective benefit to Mr Littlefield from medicinal cannabis. Dr Dias said it had given him symptomatic relief and enabled him to reduce his reliance on heavy medication.
110.Dr Gorman considered that Mr Littlefield had in fact deteriorated during the 18 months. He had been using medicinal cannabis without any improvement in function. He concluded that the initial “trial” of medicinal cannabis had not been effective and should stop.
111.The evidence indicates that Mr Littlefield’s functioning has not improved while he has been using medicinal cannabis. However, it does indicate that it has reduced his pain levels to the point that he has been able to cease using the highly addictive opioid medication he needed previously. I agree with Dr Dias that Dr Gorman was not correct in saying that medicinal cannabis had been of no benefit to him.
112.Mr McGrath reported that it was clear from the documents that Mr Littlefield had suffered significantly as a result of his injury. His ongoing pain had not been relieved by chiropractic, massage or analgesia. Mr McGrath noted TGA publications about the “limited and inconclusive” evidence about the effectiveness of medicinal cannabis, but also said he had seen a number of trials in patients with chronic noncancer pain “with both positive and failed trials”.
113.Mr McGrath said that, in most cases, a successful trial resulted in improved functionality, improved pain management and cessation of opioid and other addictive medications. He concluded that cannabis oil is prescribed to improve function, reduce pain and reduce other potentially high-risk medications. They appear to be criteria by which he assessed the “success” of a “trial”. He noted that Mr Littlefield slept 16 hours a day, was not undertaking any physical exercise or therapy, and continued to use Norspan patches and Lyrica.
114.I agree that Mr McGrath cannot be criticised for contacting other health professionals for further information. He apparently disclosed all of his contacts in his report. However, it is relevant that his reports were all dated before Mr Littlefield underwent surgery in October 2022, following which Mr Littlefield stopped using Norspan patches and says he has relied entirely on cannabis oil. He appears to have placed greater weight on improved function as an indicator of effectiveness than its benefits for reduction in pain and reliance on other high-risk medications, in this case Endone and Lyrica.
115.Mr Gaitanis submitted that Mr Littlefield admits that he has used marijuana in the past, which Mr McGrath noted as a risk factor in treatment with cannabis oil. Mr McGrath made this statement by reference to a discharge referral from Camden Hospital on 27 October 2018 which recorded “smokes, socially smokes marijuana”. Mr McGrath stated that he thought this “may have been recreational use recorded by the hospital”. There is no evidence about the extent of Mr Littlefield’s social smoking of marijuana or whether it continued. The statement in the discharge referral is not reliable evidence from which to conclude that it was a riosk factor in the use of medicinal cannabis.
116.In effect, Mr McGrath concludes that the proposed treatment is not reasonably necessary because it has not resulted in improved functioning. In my view he has not given sufficient weight to the other criteria that he cited, being reduction in pain and reduction in use of other potentially high-risk medications. Dr Gorman also appears to place greater weight on improved functioning than on the criteria as a whole. Both appear to consider it determinative.
117.Dr Sheehy supported indefinite treatment with cannabis and chiropractic but he did not support surgical intervention. His brief report is of limited assistance.
118.There are difficulties with Mr Littlefield’s evidence. There are differing views about how effective treatment with cannabis oil is and whether it should be used at all, and he has only undertaken some of the forms of alternative treatment that have been recommended. However, there is no dispute as to the severity of his pain as a result of his injury and that use of medicinal cannabis has reduced his pain levels to the point that he has been able to cease using the addictive opioid medications that he was using previously. It has proven effective in meeting two of the three criteria referred to by Mr McGrath and Dr Gorman. That his functioning has not improved is unfortunate but not in my view determinative.
119.I do not understand the respondent to raise a dispute as to the cost of the treatment.
120.Considering the criteria in Diab, affirmed in Couch, I find that the evidence is sufficient in the circumstances of this case to conclude that it is reasonably necessary treatment as a result of Mr Littlefield’s injury.
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