Nightingale v Subee Pty Ltd
[2024] NSWPIC 569
•15 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Nightingale v Subee Pty Ltd [2024] NSWPIC 569 |
| APPLICANT: | Colleen Evelyn Nightingale |
| RESPONDENT: | Subee Pty Limited |
| MEMBER: | Jane Peacock |
| DATE OF DECISION: | 15 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Undisputed injury; treatment sought in the form of a trial of CBD oil; disputed by the respondent on the basis it is not reasonably necessary; Held – award for the applicant. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the applicant under s 60 of the Workers Compensation Act1987 in respect of the proposed treatment in the form of a three month trial of CBD oil as recommended by Dr Jin and found to be reasonably necessary as a result of injury on 23 February 2018. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (the Application), as amended, Ms Colleen Nightingale (the applicant) seeks a determination that treatment proposed by Dr Jin in the form of a trial of CBD oil is reasonably necessary as a result of injury on 23 February 2018.
The respondent is Subee Pty Ltd (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation.
The respondent denied liability for the claim for the proposed treatment.
ISSUES FOR DETERMINATION
There is no dispute that the applicant suffered injury to her lumbar spine at work when she slipped and fell on 23 February 2018.
She now seeks a determination that treatment in the form of CBD oil is reasonably necessary as a result of injury on 23 February 2018. This treatment is proposed as a three month trial by the applicant’s treating pain management physician Dr Jin. At the arbitration and by consent the applicant amended the application to seek the proposed treatment in the form of CBD oil for a three month trial period.
The respondent disputes that the proposed treatment is reasonably necessary as a result of the injury on 23 February 2018. The respondent does not dispute that the proposed treatment results from the injury but rather the dispute lies in whether the treatment is reasonably necessary at all. The respondent seeks that an award be made in favour of the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission), admitted by consent, and considered in making this determination:
For the applicant:
(a) The Application, as amended, and attached documents.
For the respondent:
(a) Reply and attached documents.
Oral evidence
The applicant did not seek leave to adduce oral evidence. The respondent did not seek leave to cross-examine the applicant.
It is noted that by consent the applicant amended her statement dated 24 May 2024 to clarify typographical errors of “2022” instead of “2023” for the fusion surgery as well as referring to problems “after” rather than “before” (amendments were transcribed and recorded). These amendments were able to be made by consent and the respondent did not require the applicant to adduce oral evidence in this regard.
FINDINGS AND REASONS
The applicant suffered injury to her lumbar spine on 23 February 2018 when she slipped and fell at work. There is no dispute about injury. She subsequently came to spinal surgery in November 2022 at the hands of Dr Seex which was paid for by the insurer.
The applicant now seeks a determination that the treatment proposed by her treating pain specialist Dr Jin in the form of a three month trial CBD oil is reasonably necessary as a result of injury at work on 23 February 2018.
Essentially the dispute is whether the proposed treatment is reasonably necessary. There is no dispute that the proposed treatment is as a result of the injury. The dispute before me is whether it is reasonably necessary at all.
I must determine, on the balance of probabilities, whether the proposed treatment in the form of a three month trial of CBD oil as recommended by Dr Jin is reasonably necessary as a result of injury on 23 February 2018. This determination must be made on the evidence and in accordance with the law.
Section 60 (1) of the Workers Compensation Act 1987 (1987 Act) provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
The law in this area is well settled.
Deputy President Roche in Diab v NRMA [2014] NSWWCCPD 72 (Diab) provided a useful summary of the authorities dealing with whether medical expenses are “reasonably necessary” as a result of injury as required under s 60 and set out the approach that is to be adopted.
Deputy President Roche in Diab said as follows:
“76. The standard test adopted in determining if medical treatment is reasonably necessary as a result of a work injury is that stated by Burke CCJ in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32 (Rose) where his Honour said, at 48A—C:
‘3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5. In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.’
77. The Commission has applied this test in several cases (see, for example, Ajay Fibreglass Industries Pty Ltd t/as Duraplas Industries v Yee [2012] NSWWCCPD 41 at [67]).
78. In addition, the Commission has been guided by, and generally followed, the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo), where his Honour said, at 238D:
‘The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.’
79. The Arbitrator quoted and applied these statements in the present matter. Subsequent appellate authority suggests that this approach may not be strictly correct.
80. The Court of Appeal considered the meaning of ‘reasonably necessary’ in Clampett v WorkCover Authority (NSW) (2003) 25 NSWCCR 99 (Clampett). That case concerned whether proposed home modifications for a paraplegic were ‘reasonably necessary’ having regard to the nature of the worker’s incapacity. Grove J (Meagher and Santow JJA agreeing) noted that the trial judge had sought guidance from Rose and Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 (Pelama), another decision by Burke CCJ where his Honour applied the principles discussed in Rose and Bartolo.
81. Grove J referred to the dictionary definition of ‘necessary’ as being ‘indispensable, requisite, needful, that cannot be done without’ (Shorter Oxford English Dictionary, 3rd ed) and ‘that cannot be dispensed with’ (Macquarie Dictionary).
82. His Honour added, at [23]–[24]:
‘23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word “necessary” if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.
24. The statute does not inhibit inquiry as to what may be thought reasonable in all, or in any particular, circumstances but its terms clearly point to predominant attention being paid to the nature of the worker’s incapacity. In my opinion, to reject the appellant’s proposal on the basis that expenditure is to be made on premises of which he is a weekly tenant is an elevation rather than a moderation of the meaning of ‘necessary’.’
83. It is important to remember that Grove J’s reference in the above passages was in the context of a claim for home modifications under s 59(g). That subsection is restricted to claims for modification of the worker’s home or vehicle directed by a medical practitioner ‘having regard to the nature of the worker’s incapacity’ (emphasis added). Apart from s 59(f), which deals with care (other than nursing care), there is no such restriction in the other subsections in s 59.
84. In Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home, Burke CCJ, unreported, Compensation Court of NSW, 30 June 2003, Burke CCJ acknowledged (at [10]) that, contrary to Rose and Pelama, Clampett held that the word ‘reasonably’ was ‘effectively used as a diminutive and moderated the effects of the word ‘necessary’.
85. The approach in Clampett is consistent with the modern approach to statutory interpretation, which is to construe the language of the statute, not individual words (Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68 per Gordon J (Besanko J agreeing)). Thus, ‘reasonably necessary’ is a composite phrase in which necessity is qualified so that it must be a reasonable necessity (Giles JA (Campbell JA agreeing) in ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48] (O’Shea)). The Court, Bathurst CJ, Beazley and Meagher JJA, followed this approach in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113] (Moorebank).
86. Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
87. Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
88. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
a. the appropriateness of the particular treatment;
b. the availability of alternative treatment, and its potential effectiveness;
c. the cost of the treatment;
d. the actual or potential effectiveness of the treatment, and
e. the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89. With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
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’.”
As Deputy President Roche said in Diab each case will depend on its own facts.
It is disputed that the proposed treatment is reasonably necessary.
In summary, the applicant submits that she suffered undisputed injury to her lumbar spine on 23 February 2018 when she slipped and fell at work. Her symptoms of pain and restriction persisted and she came to spinal surgery in November 2022 at the hands of Dr Seex. This surgery whilst considered successful was not wholly successful in relieving her pain and she remained in need of pain medications many of which she is allergic to and/or from which she has experienced deleterious side effects. She continues with other conservative measures such as hydrotherapy. She has been under the care of her pain specialist since injury Dr Jin for five years (both before and after surgery). Dr Jin has provided a considered opinion which recommends a further trial of CBD oil (the first trial in 2023 being at a suboptimal dose and discontinued because of the applicant’s financial constraints) in conjunction with continuing other conservative measures such as hydrotherapy. The applicant cannot afford the proposed CBD treatment and it should not be foregone offering as it does the potential benefit in alleviating symptoms of pain and sleeplessness as a result of pain and it is submitted has the potential to reduce her need for strong pain medication with their attendant deleterious side effects on her. She has been recommended this treatment on a trial basis by Dr Jin and she seeks a determination that the proposed trial is reasonably necessary as a result of injury on 23 February 2018, the effects of which she continues to suffer from as supported by the treating evidence.
In summary, the respondent submitted that the proposed treatment is not reasonably necessary in reliance largely on the opinion of Dr Gronow. The respondent relies on the opinion of Dr Gronow who does not support the proposed treatment for the following main reasons as per the respondent’s submissions:
(a) the improvement in the applicant symptoms from the previous trial in 2023 which she attributes to the CBD oil was really coincidental with the expected improvement from the surgery. That is, it was co-incidental and the improvement in symptoms was actually the result of the surgery;
(b) the deleterious side effects from CBD oil;
(c) the guidelines don’t recommend this form of treatment for chronic pain, and
(d) the taking CBD oil resulted in no functional improvement for the applicant.
The respondent’s counsel submitted that Dr Jin did not appear to have considered the timing of the beneficial effect of the surgery manifesting at the same time as the prior trial of CBD oil.
This case will be decided on the evidence and in accordance with the law. Turning then to an examination of the evidence in this case.
The applicant gave evidence in her amended statement dated 23 May 2024 that she came to spinal surgery in 2022 as a result of her work injury in 2018 but whilst it was considered successful and resulted in some improvements in her condition it did not alleviate all of her symptoms and she was left with chronic pain and ongoing restrictions including sleeplessness as a result of persistent pain. She remains on strong opioids including palexia and she is concerned about the threat to her health by long term use. She describes benefit from the trial in 2023 of the CBD oil as follows:
“In or about May 2023 Dr Jin recommended I try medicinal cannabis oil. She gave me a script for Levin 100 plus CBD oil which I started to take each day in small does in July 2023.
I obtained a great dela of benefits and relief from using cannabis oil within a relatively short period of time. I was sleeping better and my pain levels were much improved. I had more energy and felt less tired all the time. As a result my level of depression also improved. I was also not constipated as I had been using the prior high does of Palexia and I was ale to significantly reduce my does of Palexia.”
The applicant’s evidence is supported by her treating doctors as to ongoing pain and restrictions following the surgery.
There is no real contest on the evidence about this. Dr Gronow says that the surgery resulted in improvement. Whilst some improvement may have resulted from the surgery, it is clear from all of the evidence before me that surgery has not resulted in an alleviation of all of the applicant’s symptoms, and she continues to suffer pain and restriction as a result of her injury. She can’t work, she has difficulty sleeping and suffers from pain which has become chronic. Dr Gronow accepts that she continues to suffer from chronic pain as a result of her injury.
Dr Jin, pain specialist, has been the applicant’s treating pain specialist for five years following injury and has treated her before and after surgery. There is series of reports from Dr Jin in evidence that chronicle her treatment of the applicant over the years since her work injury, both before and after the spinal surgery in 2022.
In a report dated 8 July 2024 to the applicant’s lawyers, Dr Jin sets out the history of work injury and subsequent treatment which is consistent with the other evidence before me.
Dr Jin details the treatment she has provided as follows:
· pain app for mobile phone for education and support;
· cease endone and use short acting palexia 50mg PRN;
· use stemetil 10mg pm for nausea;
· continue with palexia SR 150mg mane and 1mg nocte;
· trialled Levin CBD 100 plus to 5ml bd, but this did not provide any obvious benefit, and
· changed top Levin balance 10:10, 0.2 ml twice a day with marked improvement in level of pain and sleep.
Dr Jin notes that in addition to treatment with pain related medications, the other treatment includes physiotherapy, hydrotherapy, massage, yoga and pilates.
Dr Jin records a raft of medications that have been prescribed to the applicant since her injury.
Dr Jin records that the applicant continues to experience lumbar spine pain associated with pin and needles to right foot and that she remains totally incapacitated for employment.
Dr Jin addresses the appropriateness of the proposed treatment in the form medicinal cannabis as follows:
“Despite medical and surgical treatment, colleen continues to experience persistent pain and limitations in daily activities , alongside anxiety and depression. I believe that medical cannabis could potentially alleviate her chronic pain, improve her mood,, reduce a nicety and aid in sleep. She previously benefited from a trial of medicinal cannabis, albeit at a low and suboptimal dose and for a short duration. Unfortunately she had to discontinue this treatment due to financial constraints. I am hopeful that obtaining approval for access through the EML (essential medicines list) will enable us to initiate a new trial, gradually titrating to an optimal does to maximise therapeutic benefits. The goal is to reduce her opioid use and improve her overall quality of life.”
In dealing with the question of cost, Dr Jin noted:
“The cost will be depending on the strength of the medication and dosage. The stinted cost is likely between $200-400. However it may vary depending on how she responds.”
When asked about the side effects from the other prescribed medications Dr Jin responds:
“Most pain medications, particularly opiates often result in side effects such as fatigue, drowsiness, gastrointestinal discomfort and central nervous system effects that can include slowed thinking and impaired cognitive performance.”
Dr Jin is not suggesting the cannabis oil be used without other conservative measures and recommends ongoing physical therapy including an exercise program as well as management of the applicant’s psychological condition with regular consultations with a psychologist and psychiatrist.
In terms of the proposed treatment in the form of CBD oil Dr Jin states:
“I strongly recommend approving a three month trial of medicinal cannabis to assess its efficacy in improving physical function and enhancing quality of life.”
The respondent relies on the opinion of Dr Gronow.
Dr Gronow saw the applicant at the request of the insurer on 23 August 2023 and provided a report to the insurer dated 29 August 2023.
Dr Gronow took a consistent history of injury and its sequelae resulting in lumbar spinal surgery on 20 November 2022 at the hands of Dr Seex. He records the history following that surgery as follows:
“she then had a one week of rehabilitation in Coffs Harbour. Following the surgery she reported over the last month marked improvement of her burning pin in the lumbar spine and legs with some residual lower back pain. She did not describe any further pain in her right leg, but it does have an area of numbness in the right calf and her 3 middle toes which occasionally is associated with parathesia. She also has an area in the posterior mid thigh of localised pain and in a recent review by Dr Seex she is to have sacroiliac joint injections to be performed by an interventionalist radiologist. She finds that because of her surgery she is now able to walk longer up to a kilometre although she does occasionally have a feeling that her right foot will give way. She is still doing her hydrotherapy 2-3 times a week in a class with a therapist.”
Dr Gronow records under the heading “Medication” as follows:
“She takes Citrapalam for depression for the last 5 years. She is taking tapendatol. 50mgs slow release every second day and tapendatol immediate release daily. She takes melatonin 5 mgs at night. She takes pm paracetamol and Nurofen. She is on CBD oil and takes 01 mls two times day and 0.2 mls generally at night a higher does she feels stoned and giddy and has a feeling of being paranoid. She has been on this for 3 months. She states that the dose has allowed her to reduce her tapendatol dose. She also feels that with her diagnosis of fibromyalgia makes her more relaxed. She did not identify that it was able to improve her functional level she thought this was mainly due to improvement by the surgery.”
Under the heading “Assessment” Dr Gronow writes:
“Mrs Nightingale as a result of her fall at work had an aggravation to a pre-existing degenerative spinal disease resulting in a need for lumbar spine fusion. The latter has given her considerable improvement with resolution of her burning back and leg pain but still some underlying chronic neck pain and back pain. She has a separate diagnosis of fibromyalgia.”
That is Dr Gronow clearly accepts that whilst there has been considerable improvement in back and leg pain following surgery, the applicant is still left with underlying chronic pain as a result of her injury.
In respect of the CBD oil, Dr Gronow opines:
“Mrs Nightingale has been using CBD oil. She reports a reduction in her use of tapendatol however this would have been able to have been reduced as a result of the improvement from her spinal surgery. She is getting some side effects from the use of the CBO oil as described above which is of concern.”
When asked about the appropriateness medicinal cannabis, Dr Gronow opines:
“Medicinal cannabis is not appropriate for her and medicinal cannabis is not recommended for chronic pain as in the guidelines from the Faculty of Pain Medicine ANZCA and International association of Study of Pain.
I note these guidelines are not attached to Dr Gronow’s report and have not been put in evidence by the respondent.
When asked about the actual or potential effectiveness of medicinal cannabis in this case,
Dr Gronow answers:“Mrs Nightingale attributes that the medicinal cannabis has helped her reduce her medication and has helped her sleep and is helping her fibromyalgia symptoms but as stated she also has had improvement of the lumbar spine pain from the surgery 9 months ago and would therefore have been able to reduce her analgesic requirement independent of the use of cannabis oil.”
Dr Gronow pointed out that “Mrs nightingale has not been able to identify any functional improvement as a result of taking the CBD oil”.
Counsel for the applicant points out that there does not have to be functional improvement for treatment to be considered reasonably necessary. It is sufficient if the benefit is reduction in pain and improvements in sleep which is how the applicant says she benefited.
Dr Gronow is asked “how widely is medicinal cannabis accepted as a treatment modality in such cases?” and he answers:
“Medical cannabis is not widely used but there are a number of specialists who do recommend a trial of such substance”.
Dr Gronow recommended as follows:
“She should continue with the hydrotherapy and as she has had improvements from her surgery a home base exercise program should be reassessed which would take 3 visits from a physiotherapist”.
Counsel for the respondent submitted that in other words the use of cannabis oil has not been shown to be effective because the benefits perceived are merely coincidental with the improvements from the surgery and indeed consequential upon the surgery. Moreover the respondent submitted Dr Jin does not address this coincidence and her report is flawed because of that. However Dr Jin has treated the applicant in a pain management capacity for five years. She has detailed the ongoing symptoms that the applicant continues to experience in her report dated May 2024, some 18 months after surgery and she details the ongoing pain and restriction that the applicant is experiencing despite the surgery. She notes the suboptimal dosage of the last trial and she set outs the proposal to trial for three months gradually titrating to an optimal dosage. It is well settled that a proposed treatment does have to be guaranteed to be successful to be considered reasonably necessary. What is proposed here is a three month trial. When I weigh the evidence in the balance I prefer the treating evidence of Dr Jin to the opinion of Dr Gronow for the reasons expressed throughout and noting only a trial is proposed by Dr Jin and sought by the applicant in these proceedings (as per her amended application). The treatment does not have to be guaranteed to be successful or without side effects to be considered reasonably necessary. It is a trial that is proposed in view of the applicant’s ongoing pain and when all of the evidence is weighed in the balance I am satisfied on the balance of probabilities that it is appropriate that the trial not be forgone by the applicant and that it is reasonably necessary.
I am satisfied when I have regard to the totality of the evidence that I have weighed in the balance that the proposed treatment in the form of CBD oil is reasonably necessary as a result of the injury on 23 February 2018 and accordingly an award will be entered under s 60 of the 1987 Act in the applicant’s favour in this regard.
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