O'Shea v Ramsey Food Packaging No 2 Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	O’Shea v Ramsey Food Packaging No 2 Pty Limited [2021] NSWPIC 499
APPLICANT:	Kerry O’Shea
RESPONDENT:	Ramsey Food Packaging No 2 Pty Limited
MEMBER:	Jill Toohey
DATE OF DECISION:	2 December 2021 (amended 3 December 2021)
CATCHWORDS:	WORKERS COMPENSATION - Claim for the cost of trial of medicinal cannabis; accepted injury to lumbar spine in 2006; applicant had undergone four operations to his lumbar spine; applicant has been treated with multiple forms of surgical and nonsurgical treatment; no dispute that applicant has chronic pain as a result of his injury; whether proposed trial of medicinal cannabis reasonably necessary as a result of his injury; diagnoses of substance use disorder, in remission and active; whether medicinal cannabis effective for chronic pain; Therapeutic Goods Administration approval given or treatment for applicant’s chronic pain; consideration of factors in Diab v NRMA Ltd; Held – finding that proposed trial of conditional cannabis is reasonably necessary treatment as a result of the injury to the applicant’s injury.
1. The applicant suffered injury to his lumbar spine arising out of or in the course of his employment with the respondent on 26 April 2006. 2. The trial of medicinal cannabis proposed by Dr Ben Jansen is reasonably necessary treatment as a result of the applicant’s injury.
DETERMINATIONS MADE:	3. The respondent to pay the costs of the proposed treatment pursuant to section 60 of the Workers Compensation Act1987.

STATEMENT OF REASONS

BACKGROUND

Mr Kerry O’Shea (the applicant) was employed as a meat worker by Ramsey Packaging No 2 Pty Limited (the respondent) on 26 April 2006 when he suffered an injury to his lower back.
The respondent accepted liability for Mr O’Shea’s injury which has left him with persistent lower back pain and radicular leg pain. He remains in receipt of weekly benefits.
In February 2011, Mr O’Shea underwent an L5/S1 fusion. In August 2012, he underwent a second procedure on his lower back to remove a screw that was impinging on the nerve root. After the second procedure, he was taking a large amount of pain relief medication and developed an addiction to the drug “ice”.
In 2017, Mr O’Shea underwent a third procedure on his lower back. In November 2019, his general practitioner referred him to Dr Ben Jansen of Cannabis Doctors Australia for treatment of his chronic back condition. Dr Jansen recommended a trial of medicinal cannabis.
In September 2020, Mr O’Shea underwent a revision of the previous surgery.
By dispute notices dated 29 April 2020 and 27 August 2020, the respondent disputes liability for the cost of the trial of medicinal cannabis proposed by Dr Jansen on the ground that it is not reasonably necessary treatment for Mr O’Shea’s injury.

The present proceedings were commenced by an Application for an Expedited Assessment (AEA) lodged with the Personal Injury Commission (the Commission) on 2 June 2021.

ISSUES FOR DETERMINATION

The circumstances of the injury and Mr O’Shea’s resulting treatment are uncontroversial. The respondent does not dispute that Mr O’Shea suffers from chronic back pain as a result of his accepted injury.
The parties agree that the issue remaining in dispute is whether the trial of medicinal cannabis proposed by Dr Jansen is reasonably necessary treatment as a result of Mr O’Shea’s accepted injury.

PROCEDURE BEFORE THE COMMISSION

At a telephone conference on 5 July 2021, parties agreed that the question of whether the proposed trial of medicinal cannabis is reasonably necessary treatment as a result of Mr O’Shea’s injury should be referred to a Medical Assessor for a non-binding opinion.
Dr David Gorman saw Mr O’Shea for assessment via zoom on 24 August 2021 and provided a Medical Assessment Certificate dated 6 September 2021. Dr Gorman’s view was that the proposed trial was not reasonably necessary treatment for Mr O’Shea’s lower back condition.
At a further teleconference on 5 October 2021, parties were unable to reach agreement and the matter was listed for a conciliation/arbitration hearing on 17 November 2021.
Mr Josh Beran of counsel appeared for Mr O’Shea at the conciliation/arbitration hearing, instructed by Mr Claudio Meireles. Mr Paul Stockley of counsel appeared for the respondent, instructed by Mr Stephen Lee.
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 Commission and considered in making this determination:

(a) AEA and attached documents,
(b) Reply and attached documents,

(c) Application to Admit Late Documents (AALD) lodged by the respondent on 29 June 2021 and attached documents,

(d) AALD lodged by the applicant on 2 July 2021 and attached documents,

(e) AALD lodged by the respondent on 20 July 2021 and attached documents,

(f) AALD lodged by the applicant on 23 July 2021 and attached documents, and

(g) Medical Assessment Certificate of Dr David Gorman dated 6 September 2021.

Oral Evidence

Neither party sought leave to adduce oral evidence or cross-examine any witness.

THE EVIDENCE

Mr O’Shea’s evidence

Mr O’Shea provided statements of evidence dated 15 December 2020[1], 28 June 2021[2] and 7 July 2021 (incorrectly dated 2020).[3]
[1] AEA page 8.
[2] Applicant’s AALD 2 July 2021 page 1.
[3] Applicant’s AALD 23 July 2021 page 1.
In his first statement, Mr O’Shea describes the surgical procedures he underwent in February 2011 and August 2012 following his workplace injury. He states that, after the second procedure, he became addicted to the drug “ice” because of the amount of pain relief medication he was taking, and he was in “an extremely bad mental state” for almost three years. He underwent a third procedure on his lower back in 2017.
On 28 November 2019, Mr O’Shea’s general practitioner, Dr Ross Stinton, referred him to Dr Ben Jensen [sic: Jansen] of Cannabis Doctors Australia for treatment of his chronic back condition. Dr Jansen recommended medicinal cannabis to lessen his pain and enable him to stop taking opioids. He cannot afford to pay for the treatment himself.
In his second statement, Mr O’Shea states that, on 29 September 2020, he underwent a spinal fusion at Gold Coast Private Hospital. The insurer met the costs. He states that, during the course of his injury, he has been prescribed Endone and Tramadol, especially post-surgery.
Mr O’Shea states that, after a nervous breakdown in 2014, he stopped taking all opioids as they were not making any difference in reducing his pain. He began using cannabis flower to lessen the pain and to enable him to stop taking opioids. He has paid for the cannabis flower because the insurer refuses to meet the cost. When taking it, his pain intensity is a lot lower and he finds he can undertake more chores around the house. Overall, he states, his quality of life has significantly increased since he commenced using cannabis flower. He has not had any side effects from it.
In his third statement, Mr O’Shea states that, in 2016, he developed a right inguinal hernia for which he saw Dr Stinton on 12 September 2016. He had surgery to repair the hernia on about 23 June 2020.
Mr O’Shea states that, because of the constant sciatic pain from his workplace injury, he developed a limp and abnormal gait. Between 2017 when he had his third surgery, and 2020 when he underwent the hernia operation, he had to use aids including a “mobile [sic] scooter” for walking, standing and sitting. His gait improved after the hernia surgery and again after the fourth operation on his spine but then became worse again. In January 2021, he saw Dr Stinton and, in April 2021, he saw Dr Cleaver about his lower back pain radiating down to his legs. He saw Dr Cleaver again in May 2021 as he was having significant problems with his feet and ankles.

General practitioners’ records and report

Clinical records of Tugan Family Medicine on 18 August 2016 show that Dr Stinton recorded Mr O’Shea’s treatment to date as “NSAD [sic], Analgesics, Physiotherapy, CT scan L/S, Hydrotherapy, Spinal Fusion 2011, Revision Spinal fusion 2012 removal of a screw.[4]”
[4] Respondent’s AALD 29 June 2021, page 4.
On 4 October 2016, the records show Mr O’Shea “uses marijuana for analgesia”.[5] On 26 October 2016, Dr Stinton recorded that Mr O’Shea had increased back pain, he was not taking any analgesics for it, “just smoking pot”[6]. On 8 June 2017, the record shows he was using marijuana for pain relief[7].
[5] Respondent’s AALD 29 June 2021, page 8.
[6] Respondent’s AALD 29 June 2021, page 10.
[7] Respondent’s AALD 29 June 2021, page 14.
In a referral to Dr Jansen dated 28 November 2019[8], Dr Stinton wrote that Mr O’Shea had chronic back pain with left sciatica at L5. He had a history of fusion and recent acute L5 disc prolapse causing a lot of pain. He was currently using marijuana for pain relief. He was not able to take narcotics and would like to change to medicinal cannabis. Dr Stinton asked Dr Jansen to “treat him as you see fit”.
[8] AEA page 11.
Dr Stinton reported to Mr O’Shea’s solicitors on 10 July 2021[9] in response to questions put to him by letter dated 5 July 2021[10]. He confirmed that Mr O’Shea’s current lower back problems were caused or materially contributed to by the workplace injury. He said Mr O’Shea did not have an altered gait before the inguinal hernia surgery. He was uncertain whether physiotherapy undertaken to treat his back had made a material contribution to the pain Mr O’Shea now complained of and his need for analgesia. Dr Stinton said he had not recorded at any time that physiotherapy had worsened the back condition.

Dr Jansen
[9] Applicant’s AALD 23 July 2021 page 8.
[10] Applicant’s AALD 23 July 2021 page 5.

In a letter dated 12 February 2020 to Mr O’Shea[11], Dr Jansen advised that he had been legally prescribed medicinal cannabis products which he was lawfully able to possess and use, and he was legally allowed to carry associated devices and utensils.
[11] AEA page 25.
Dr Jansen’s letter confirmed that Mr O’Shea had been started on the treatment described in the letter. In fact, the treatment had been prescribed but not actually commenced. There are references in other documents (below)to the treatment having commenced Nothing turns o this.
In a report to the insurer dated 23 March 2020[12], Dr Jansen stated that Mr O’Shea had been referred for an opinion and “management of chronic pain and trial/treatment with medicinal cannabis”. He described the clinical justification for the treatment as:
“Chronic Pain secondary to Fusion of L5-S1 in 2011
Chronic Pain secondary to L Sciatica
Multiple operations
Multiple injections.
Physiotherapist
[12] AEA page 27.
Not responding to previous medications and treatments.”

Dr Jansen described Mr O’Shea’s reported pain as “Daily: 10/10” originating from his lower lumbar area radiating across the back down the hips to the legs bilaterally. His symptoms were cyclical insomnia with fatigue the following day, and anxiety and depression. The effect of the disease was that he was unable to work to full capacity. Mr O’Shea reported that the cannabis he sourced himself made him “feel great”; when he was stiff and sore and could not move, he would have some and then he could move.
Dr Jansen listed Mr O’Shea’s previous medications as Mobic, Prednisolone, Endone, Nexium, Panadol and Nurofen. He said Mr O’Shea had been started on medicinal cannabis in the terms approved by the Therapeutic Goods Administration (TGA). (In fact, the treatment had been prescribed, and approved by the TGA, but not commenced.)
By letter dated 24 March 2021 to Mr O’Shea’s solicitors[13], Dr Jansen responded to a number of questions. The solicitors’ letter is not in evidence but the gist of the questions can be inferred from his responses. He wrote that Mr O’Shea was referred by Dr Stinton suffering from chronic spinal pain and lower limb radiculopathy and associated symptoms. Mr O’Shea reported a trial of various other classes of analgesic medications without success, and medicinal cannabis could be trialled in such cases.
[13] AEA page 40.
Dr Jansen wrote:
“Efficacy for patients trialling Medicinal Cannabis products can range from effective to completely effective for pain symptoms, and it is impossible with current medical science to tell which patient will respond and which will not. This patient reported cannabis products to be effective on initial assessment for pain. We can not give a prognosis for any patient if we can no [sic] judge the efficacy prior to the trial of medicine. We cannot comment on global medicinal cannabis therapy acceptance. We did not recommend any alternative treatment as we specialise as a Medicinal Cannabis clinic.”

Therapeutic Goods Administration documents

By letters to Dr Jansen dated 11 February 2020 and 12 February, a delegate of the Secretary of the Department of Health gave notice of the decision of the TGA to grant him approval under paragraph 19(1)(a) of the Therapeutic Goods Act 1989 to use Cannatrek T15 flower to treat the patient referred to in the attached schedules in the forms and doses specified[14].
[14] AEA page 12 and following.
The schedules identify Mr O’Shea by initials only but there is no dispute that he is the patient referred to. They identify the purpose of the approval as “chronic pain” [15].

Dr Cleaver
[15] AEA page 15.

Dr Neil Cleaver is Mr O’Shea’s current treating orthopaedic surgeon. He reported to Dr Stinton on 18 May 2020[16] that Mr O’Shea’s nuclear bone medicine scan gave weight to the theory that the non-union at L5-S1 was responsible for Mr O’Shea’s ongoing pain. He said it was difficult to talk to Mr O’Shea about treatment, which would be a revision surgery, given all his other failed surgeries.
[16] Reply page 22.
Dr Cleaver stated that other options would be to explore pain management which had done little for Mr O’Shea in the past. He said he could not see much of a role for physiotherapy and there was no radiologically-based intervention he could think of to treat a non-painful union. He would therefore seek approval to perform surgery. Mr O’Shea was to consider this and make a decision. However, Dr Cleaver said, even with successful surgery it was important for Mr O’Shea to realise he will always have a painful back.
By letter dated 29 May 2020 to the insurer[17], Dr Cleaver described Mr O’Shea’s case as “extremely complicated”. In essence, he said, the 2011 fusion had failed and the indications were that he had a painful non-union. An accepted treatment, if the pain is bad enough, would be to supplement it with a posterior fusion which, in Mr O’Shea’s case, would be a revision posterior fusion.
[17] Reply page 23.
Dr Cleaver reported that he had no idea if the surgery would improve Mr O’Shea’s ongoing levels of pain. If the diagnosis was correct and there were no complications from surgery, it would be anticipated he would get some improvement. It was possible he would be no better off or even worse off. Dr Cleaver said he had no idea if the surgery would reduce his reliance on cannabis. Its purpose was to treat a supposed, painful non-union at L5-S1, and not a lateral disc bulge.
The insurer approved the revision surgery which Dr Cleaver carried out on 28 September 2020. He reported to Dr Stinton on 2 November 2020 that Mr O’Shea was doing very well and his pain had been significantly improved. His wounds had healed and it would probably be appropriate to start talking about some rehabilitation into the workforce in January 2021[18].
[18] Reply page 25.
In a letter to the insurer dated 22 June 2021[19], Dr Cleaver reported that he saw Mr O’Shea on 21 April 2021. Prior to that, Mr O’Shea had reported excellent resolution of his lower back symptoms following the last surgery. Dr Cleaver said it was “somewhat concerning” to learn, on 21 April 2021, that Mr O’Shea had had “a setback”. He had recently undergone surgical repair of a hernia which was complicated by nerve palsy from the anaesthetic and led to a number of falls. While recovering, he had an abnormal gait and started to experience lower back pain.
[19] Respondent’s AALD 20 July 2021, page 1.
Dr Cleaver wrote that, on 21 April 2021, Mr O’Shea had a “very abnormal antalgic gait” consistent with the development of muscular and lower back pain. He treated Mr O’Shea conservatively with strong anti-inflammatories and physical therapies.
Dr Cleaver reported that he saw Mr O’Shea again on 31 May 2021 when he was still experiencing very significant problems with both feet and ankles which were being investigated further. In Dr Cleaver’s opinion, the spine surgery had been successful in treating the source of pain at the time, and Mr O’Shea’s ongoing source of lower back pain was muscular as a result of the abnormal gait due to the new diagnoses in both lower limbs.
Dr Cleaver said he did not have personal experience with medicinal; cannabis, he did not have intimate knowledge of the legislation, and he is not prescribed to treat it. He said:
“Anecdotally, I would offer my opinion that many patients with chronic pain do experience good pain relief with medicinal cannabis.
I apologise if this short report has not assisted you with your inquiries, but I would defer [sic] your questions to medical practitioners more experienced in the prescription of medicinal cannabis.”

Dr Beer

Dr Jason Beer, orthopaedic surgeon, saw Mr O’Shea for assessment on 18 August 2020[20]. He was provided with documents including Dr Daly’s report of 20 April 2020, reports from Dr Cleaver[21] and Dr Stinton, and radiological scans.
[20] Respondent’s AALD 20 July 2021, page 1.
[21] This appears to be a reference to the referral to Dr Janson.
Dr Beer noted the history and treatment of Mr O’Shea’s workplace injury and that he had been referred to Dr Jansen “who has tried analgesia in the form of medical-grade cannabinoid products”. (As observed, the treatment had not in fact commenced and Mr O’Shea was still using “community sourced cannabis”.)
Dr Beer reported that Mr O’Shea had developed an ongoing painful non-union of his L5/S1 region and possible nerve root impingement on the left. His “analgesic requirements have been met up until recently by prescription of medical grade cannabis” but he was having ongoing deterioration in his symptoms. Dr Beer noted that Dr Cleaver had recommended revision of his posterior surgery.
In response to a question about alternative treatments, Dr Beer said:
“There is really no other recommended treatment. Physiotherapy is not likely to be of any significant benefit. He has been under the care of Dr Ben Jansen who has provided prescriptions for medical grade cannabis which has caused significant reduction in Mr O’Shea’s symptoms as reported by him. It would be reasonable to persist with this even post operatively.”

Dr Daly

Dr Joshua Daly, consultant pain medicine physician, saw Mr O’Shea for assessment on 2 April 2020 and provided a report dated 20 April 2020[22]. He noted that treatment of Mr O’Shea’s workplace injury had consisted of analgesic medications in the form of opioids to which he reported developing a tolerance, and he had been using outside their prescription doses, and he used other illicit substances such as crystal methamphetamine to cope with the pain.
[22] Reply page 1.
Dr Daly recorded that surgery in 2017 resulted in a complete relief of all aspects of Mr O’Shea’s pain until a sudden recurrence of lower back and radiculopathic left leg pain in 2019. A CT scan showed a compressive lesion of the left L5 nerve root.

Dr Daly noted that, at the time of his report, Mr O’Shea was yet to see Dr Cleaver again. He noted Dr Jansen’s recommendation of cannabinoid products which Mr O’Shea was yet to trial. He noted that Mr O’Shea reported moderate to severe pain, worse when lying down for any prolonged period, which was relieved with marijuana sourced from the community.
Dr Daly reported there were some limitations to his assessment because Mr O’Shea declined to answer certain questions that he considered irrelevant to the overall assessment, and he did not want to undergo a full physical examination because he said it would provoke his pain.
Dr Daly noted the CT imaging in November 2019 which showed evidence of a bilateral disc bulge with possible L5 nerve root compression; He said this could be contributing overall to Mr O’Shea’s symptom profile. He diagnosed persistent low back and radiculopathic leg pain despite previous surgical procedures.

As to whether the proposed trial was reasonably necessary treatment for Mr O’Shea’s injury, Dr Daly said it was not. He said “limited effectiveness has been demonstrated to medical cannabis and it is unlikely to have a drastic improvement in his underlying condition”. He did not perceive any short or long-term benefit with its use.
As to whether medical cannabis therapy is accepted treatment in such cases, Dr Daly said this was still under investigation. He said the Faculty of Pain Medicine currently does not endorse medical cannabis as a viable treatment for chronic pain. He said it was important for Mr O’Shea to undergo further assessment with the spinal surgeon, given his ongoing back and leg pain with evidence of nerve root compression. Further treatment would depend on the surgeon’s opinion as to whether further surgery is required. Dr Daly said:

“There are other more advanced pain modality treatments that are available to treat persisting pain and leg pain if surgery is not an option (such as neuro modulation in the form of spinal-cord stimulation). I would not recommend re-starting any opioid therapy.”

Dr Daly said Mr O’Shea had resumed work and had been “doing okay” by his own account until the recurrence in November 2019. He said:
“With further assessment and possible treatment options this pain may resolve. As stated I do not think that initiating long-term medical marijuana therapy in his particular case would be beneficial and I would also not suggest to return to the opioid medications, instead I would suggest nonpharmacological means of managing his pain.”

In a supplementary report dated 14 July 2021[23], Dr Daly responded to a question whether Mr O’Shea’s pain levels were sufficiently significant to warrant a trial of medicinal cannabis. He said a prescription was not based solely on pain levels but on the pain history as well as current pain, comorbidities and other factors such as potential risks in harms. He said:
“In Mr O’Shea’s situation, taking into account all of the sociopsychological, biomedical issues surrounding his persistent pain, both at the time of my original assessment in 2020 and events as they have taken place up until this point of time as provided to me in the correspondence, in my opinion he is unsuitable for medicinal cannabis prescription either for a trial or any ongoing treatment at this stage as it stands.”
[23] Respondent’s AALD 20 July 2021, page 9.

Dr Daly said medicinal cannabis “is not the best choice for his ongoing pain treatment based on the information provided to me”. Other therapies could be considered by assessment or a treating pain specialist. However, based on past history and the current pain pattern described by Mr O’Shea, as well as potential risks with the therapy in his case, he would not recommend medicinal cannabis.
Asked whether the medical profession would accept the effectiveness of medicinal cannabis for a worker who concedes he has “a current illicit cannabis addiction” and had been addicted to opioids in the past, and ice, Dr Daly said he could not speak on behalf of all of the profession but he referred to the view of the Faculty of Pain Medicine that “the scientific evidence for the efficacy of cannabinoids in the management of people with chronic noncancer pain is insufficient to justify endorsement of their clinical use.”
With respect to Mr O’Shea’s particular situation, Dr Daly said:
“[A]s mentioned the propensity for addiction to other illicit substances including methamphetamine in the past “ice” as well as problematic cannabis use in the long-prescribed setting is all of further warning to the hazards of prescription of this mediation [sic] in his particular situation.”

Dr Daly concluded that medicinal cannabis was not reasonable treatment for Mr O’Shea and he did not think it would lead to overall therapeutic relief, “with harms and risks that outweigh its potential benefits”.
With respect to Dr Hardy’s opinion (below), Dr Daly said he had read it but he maintained his original assessment which was “backed by scientific evidence clearly demonstrated by the faculty of Pain Medicine Australia and New Zealand’s position”.

Dr Hardy

Dr Mark Hardy, specialist in addiction medicine, dual diagnosis and acquired brain injury, saw Mr O’Shea for opinion regarding ongoing cannabis treatment for his medical condition. He reported to Mr O’Shea’s solicitors on 7 April 2021[24].
[24] ARD page 41.
Dr Hardy took a history of Mr O’Shea’s injury and treatment including opioid medications, NSAIDSs and amitriptyline. Mr O’Shea told him that he first used opioids in 2006 in the context of his workplace injury. He was given OxyContin which made him sleep, and he had nausea and vomiting on waking. He was then tried on other forms of oxycodone and other opioids including MS Contin. His last tablet was in 2010.
Dr Hardy took a history that Mr O’Shea first used cannabis at the age of 17 “once or twice only”. He started using cannabis again in 2006 following his injury. He was currently smoking a quarter of an ounce in three days. He had been prescribed medicinal cannabis but could not afford it so was using illicit cannabis instead.

Mr O’Shea told Dr Hardy that he first used methamphetamine when he was 32. He was able to stop opioids while using it. He used 0.5g per day, smoked and injected. It quickly became problematic. He last used it in approximately 2014. He denied using alcohol any longer, and denied having used benzodiazepines, MDMA/ecstasy, or hallucinogens/ketamine. His current medications comprised Panadol osteo. He was allergic to codeine.
Mr O’Shea described his pain score as at worst “11/10”, at best “5-6/10, due to cannabis”. With cannabis, he could sleep through the night; without it he was getting about two hours sleep. He said he coped better with the pain on cannabis and his anxiety was mild compared to without it when it was substantial.
In addition to physical injuries, Dr Hardy diagnosed Substance Use Disorder (in remission): Opioids, Amphetamines; and Substance Use Disorder (active): Cannabinoids.
Dr Hardy reported that it was apparent that, in treating his injuries, Mr O’Shea had developed substance use disorder to opioids (in remission). As a consequence of this and his injuries, he had developed a substance use disorder to cannabis (active).
Dr Hardy observed that Mr O’Shea had undergone multiple spinal surgeries. The benefits of further surgery would be minimal and should not be considered as a likely future outcome. Even if a spinal-cord stimulator insertion were to be entertained as a possible treatment, his suitability for such a procedure, and the perceived potential benefits, would be doubtful.
As to whether the prescribed treatment was reasonably necessary as a result of Mr O’Shea’s workplace injury, Dr Hardy said:
“In Australia, the justification for medicinal cannabis treatment… are that it must be a chronic condition, which can be medically, surgically or psychiatrically diagnosed. There needs to be evidence of previous treatment: either unsuccessful, poorly tolerated or not preferred by patient (e.g. opioids, invasive treatments). Not all treatments need to be medical and surgical (e.g. allied health, physical conditioning, psychological therapies, non-interventional). Mr O’Shea meets these clinical justification criteria.”

Dr Hardy said the evidence of medicinal cannabis treatment for chronic non-cancer pain is of the moderate level, indicating that its benefits are likely to be directly relatable to the doses of the cannabis treatment under consideration. He said in Mr O’Shea’s case, medicinal cannabis is not being considered first or even second line treatment but essentially last line treatment. Dr Hardy said all other reasonable and necessary treatments had either been tried or thought to be of no value in his case. Of the treatment not undertaken, Mr O’Shea was “unlikely to benefit from other treatments in the interventional pain, or surgical sphere.”

In relation to Mr O’Shea’s substance use disorder, Dr Hardy said the TGA guidelines do not forbid the use of medicinal cannabis in cases where an active substance use disorder is suspected. Indeed, he said, illicit cannabis as self-medication, both before and since legalisation, has been largely directed at chronic pain, anxiety disorders and sleep disorders. He said:
“In the latter studies, the most common reasons for continuing to use illicit cannabis, despite the availability of legal medical cannabis is the ongoing stigmatisation of the cannabis as a medicine, and the price differential between illicit and medicinal cannabis. Thus illicit cannabis use may also represent poor pain control from established medical and surgical interventions, despite the presence of an underlying substance use disorder or personality vulnerabilities which may lend itself to substance misuse in general. This appears to be consistent with the clinical picture of Mr O’Shea’s current pattern of cannabis use.”
Dr Hardy acknowledged doubts raised by the Australian Pain Society and Royal Australian College of General Practitioners about the benefits of medicinal cannabinoids in chronic noncancer pain. Nevertheless, he said, there is “ample evidence of the benefits of medicinal cannabis where other treatments have failed, with which a large body of pain, rehabilitation and addiction specialist would agree, despite the official positions of their educational bodies.”
On that basis, Dr Hardy said, medicinal cannabis is reasonably necessary treatment in Mr O’Shea’s case. The context in his case is of breakthrough treatment, where all other appropriate treatments have failed. The benefits of successful treatment would be improved functional capacity and better symptoms control. Bearing in mind that the TGA provides approvals for a trial of cannabis therapy for 12 months, a reasonable period in Mr O’Shea’s case should be at least six to 12 months.

Dr Hardy described common side-effects of medicinal cannabis treatment including, in rare cases, psychosis. He said Mr O’Shea has not demonstrated a preponderance to psychosis, making it “exceedingly unlikely, verging on impossible”, that he would suddenly manifest it.
Dr Hardy said it should be acknowledged without reservation or condition that Mr O’Shea already has a cannabis use disorder and treatment with prescribed cannabis will not alter that fact. However, he has previously suffered from an active opioid use disorder, as a direct consequence of earlier treatment by other providers. In terms of safety and overdose risk, the use of cannabis, where effective, has a much lower overdose risk, and constitutes a “harm minimisation approach”.
Dr Hardy’s curriculum vitae[25] shows that he currently holds positions as staff specialist in addiction medicine at the Herbert Street Clinic at Royal North Shore Hospital Community Health Centre; visiting medical officer at The Sydney Clinic; and chairman of the Online Modules Advisory Group of the Australian Chapter of Addiction Medicine, Royal Australasian College of Physicians. He has given presentations on subjects including chronic pain and dependence, and taught in areas including opioid risk management in chronic pain, and cannabis use disorders.
[25] Applicant’s AALD 23 July 2021 page 3.

Dr Gorman’s Medical Assessment Certificate

Dr Gorman conducted an assessment by zoom on 6 September 2021. He noted the history of treatment of Mr O’Shea’s workplace injury and that he became addicted to “ice” after the second surgery.
Dr Gorman noted Dr Jansen’s recommendation of medicinal cannabis. He said he understood Mr O’Shea had only just started this treatment which had been too expensive previously. He said Mr O’Shea continued on medicinal cannabis and had stopped using illicit cannabis after his first prescription on 9 July 2021. (Neither was correct.) He noted that Mr O’Shea said the medicinal cannabis helped.

Dr Gorman noted that Mr O’Shea was seeing a physiotherapist weekly, that he had done a pain management course and had been treated with opioids, NSAIDs and amitriptyline. He had used amphetamines intravenously but had ceased in 2014.
In addition to physical injuries, Dr Gorman diagnosed “substance use disorder (cannabinoids) – using illicit cannabis until recently”, and “substance use disorder – opioids, and amphetamines, in remission since 2014”. Other than the reference to using illicit cannabis until recently, Dr Gorman made the same diagnoses as Dr Hardy.
Dr Gorman concluded that medicinal cannabis is not reasonably necessary as a result of Mr O’Shea’s workplace injury. He stated his reasons as follows:
“1.     I believe that the use of medicinal cannabis in Mr O’Shea is to treat the substance use disorder, not to treat any effects of the injury. His only change in medication after the recent commencement of medicinal cannabis was to cease illicit cannabis;
2.      Cannabis containing THC and CBD is only a weak analgesic as outlined by the Faculty of Pain Medicine of the ANZCA in its Position Statement in 2021 (available online);
3.      Prescribing an addictive substance to a patient already having had major problems with addiction is unwise and is not good medical practice;
4.      The Faculty of Pain Medicine, after analysing the 2021 evidence from the International Association for the Study of Pain in 2021 (in the journal “Pain”), concluded that medicinal cannabis should not be prescribed for chronic pain. The press release from the faculty in 2021 is available online. The Faculty of Pain Medicine is the premier body of Pain Specialists in Australia.
5.      As expected, despite Mr O’Shea starting on medicinal cannabis, his pain remains and his function has not improved.
6.      It is well established that medicinal cannabis will not enable pain patients to reduce opioids – its use will not stop Mr O’Shea returning to opioid therapy.”

Dr Gorman disagreed with Dr Hardy’s view that illicit cannabis may represent “poor pain control from established medical and surgical interventions, despite the presence of an underlying substance use disorder”. He said Mr O’Shea had severe and long-lasting substance use disorder with opioids and amphetamines, as well as cannabis. His use of illicit cannabis was part of his substance abuse disorder rather than pain management therapy.
Dr Gorman noted Dr Hardy’s comment that, despite the views of the medical bodies, there was “ample evidence of the benefits of medicinal cannabis”. He said his view was “to accept the research and the conclusions of the body of experts that do not support medicinal cannabis”.

SUBMISSIONS

Counsel’s submissions were recorded and I will not recite them in detail. The following is a summary.

The applicant’s submissions

Mr Beran submits that:
(a)    Mr O’Shea has undergone surgery and has tried physiotherapy, a pain clinic and opioids. His doctors recommend that the proposed trial some cannabis is his best course. There is no doubt it is controversial and there is a body of opinion that it is not for chronic pain but, against that, is evidence that it is.
(b)    Mr O’Shea’s evidence is that, despite ongoing operations, he has persisting pain radiating to his legs which affects his ability to carry out activities of daily living. Cannabis reduces the intensity of his pain and allows him to do chores around the house. He has no side-effects from it.
(c)    Dr Stinton noted in his referral to Dr Jansen that Mr O’Shea cannot use narcotics. He evidently thought it at least worth investigating medicinal cannabis. The general practitioners’ records show that he uses cannabis for pain relief. The referral to Dr Jansen was essentially to convert his illicit use to licit use because it helps with his pain.
(d)    Dr Jansen outlined the clinical justification for medicinal cannabis for Mr O’Shea’s chronic pain and that he had tried other analgesic without success. He acknowledged that its efficacy can vary but considered it worth a trial without which it would not be possible to determine its efficacy.
(e)    Although opinions differ as it its use for chronic pain, the TGA has approved its use in Mr O’Shea’s case for chronic pain indicating that, at least in the eyes of the Australian Government, it is legitimate treatment for chronic pain.
(f)    Dr Cleaver in his first report said Mr O’Shea would always have a painful back, even with successful further surgery. Although it was not within his expertise, He said anecdotally, many report good pain relief with medicinal cannabis but he would defer to more experienced practitioners. Mr Beran submits that the more experienced practitioners are the treating doctors and not independent assessors.
(g)    Dr Beer’s view is that it would be reasonable to persist with cannabis post-operatively. He apparently understood that Mr O’Shea was already using medicinal cannabis but this is evidently wrong. Nevertheless, Dr Beer’s opinion was that it was reasonable for him to persist with it.
(h)    Mr O’Shea’s treating general practitioner, Dr Jansen whose specialty is medicinal cannabis, Dr Cleaver who refers to anecdotal evidence, and Dr Beer, all support the use of medicinal cannabis for chronic pain.
(i)    Dr Hardy is a specialist in addiction medicine. He has worked in an opioid treatment clinic. He is the best qualified to comment on Mr O’Shea’s use of opioids and cannabinoids. He noted that Mr O’Shea had not used amphetamines since 2014. Further, that he was allergic to codeine. He noted the benefits of cannabis as reported by Mr O’Shea. His substance use disorder was caused, essentially, by treatment of his injuries.
(j)    The TGA does not forbid medicinal cannabis where there is illicit use, and substance use disorder does not necessarily disqualify a person from its prescription. Mr O’Shea’s actual evidence is that there is a benefit to him and his pain is reduced.
(k)    Dr Daly has not provided a considered, reasoned opinion but a bald assertion that the treatment is not reasonably necessary. Dr Daly said it would not improve Mr O’Shea’s underlying condition. However, the trial is not for treatment of the underlying condition but for t Mr O’Shea’s chronic pain. Dr Daly does not explain why Mr O’Shea is unsuitable for the trial. He refers to “sociopsychological “ and other factors but does not explain them. He does not identify the “alternative therapies” that Mr O’Shea should consider.
(l)    In saying scientific evidence does not support the use of medicinal cannabis,
Dr Daly applies the wrong test and essentially relies on the Faculty of Medicine.
(m)     Dr Gorman’s opinion is “riddled with inaccuracies”. He incorrectly says Mr O’Shea has stopped illicit use of cannabis and started the trial. He notes that medicinal cannabis helps him, then says it is not reasonably necessary to treat the substance use disorder which is not the purpose of the trial. Dr Gorman’s opinion that the only change will be that he would use licit medicinal cannabis is the whole point.
(n)    In relying on the Faculty of Pain Medicine, Dr Gorman ignores the pain relief that cannabis gives Mr O’Shea. He says it is not good medical practice in his case, ignoring that Mr O’Shea has not had an addiction, except possibly to cannabis, since 2014. Dr Hardy is best placed to comment in that regard. He ignores that the TGA has approved its use for Mr O’Shea’s chronic pain. He says it will not reduce his reliance on opioids but he is not taking any. None of the reasons offered by Dr Gorman makes sense and I would prefer Dr Hardy’s more relevant opinion.

Mr Beran refers to the test in Diabv NRMA Ltd[26] and submits that the proposed treatment is appropriate based on treating and independent evidence, No alternative treatment has been identified. The cost is not exorbitant. Mr O’Shea’s evidence is that it is effective. The opinions of experts are mixed but the weight of the opinion, together with the position of the TGA, is in his favour.
[26] [2014] NSWWCCPD 72 (Diab)

The respondent’s submissions

Mr Stockley submits that:
(a)    In effect, Mr O’Shea is using cannabis now and he wants the insurer to pay for it. We know from the history taken by Dr Hardy that he started using it again in 2006. He makes only passing reference to its use and benefits in his earlier statements. It is only in the heat of the present proceedings that he says it lowers his pain and enables him to carry out activities of daily living. That seems to be the extent of his evidence about its effects. It gives little insight into how helpful cannabis has actually been.
(b)    The respondent does not dispute that Mr O’Shea suffers from chronic pain but his anecdotal evidence would be more persuasive if he could say he had battled on with the chronic pain and had significant improvement with cannabis. His anecdotal account is of little assistance, especially as he has not dealt very frankly with how much he has used, and when, over the years, and with what effect on his chronic pain. Based on his evidence, I would doubt if he has had any real benefit from its use from 2006 to 2021.
(c)    Dr Jansen writes as the proprietor of a business rather than giving a professional opinion as to the benefits of medicinal cannabis. Given the nature of his business, he would naturally support the trial.
(d)    The TGA approval shows only that the modality of treatment is legal. I cannot infer more from the approval than that.
(e)    The fact that Dr Stinton referred Mr O’Shea to Dr Jansen means no more than that Mr O’Shea wanted to change from illicit to medicinal cannabis. Dr Stinton has simply made a referral as asked.
(f)    Dr Hardy does not appear to be an expert in pain management which is the issue being considered here. Pain management is Dr Gorman’s area, and his decisive conclusion is that, in the circumstances, medicinal cannabis is not warranted for Mr O’Shea.
(g)    In applying the criterion in Diab regarding expert opinion, it comes down to
Dr Hardy’s opinion against those of Dr Gorman and Dr Daly. The primary facts are not controversial. Dr Cleaver refers to anecdotal evidence but the pain management specialists are against him.
With respect to the other factors to be considered as set out Diab, Mr Stockley makes no submission as to the cost of the proposed treatment. He acknowledges that Mr O’Shea has tried a number of other treatments and that no one is now suggesting further surgery. The actual or potential effectiveness of the proposed treatment is not established on the evidence, and the medical opinion of the experts is against him.

Submissions in reply

In reply, Mr Beran submits that the full picture of the benefits Mr O’Shea has from the use of cannabis can be obtained from the histories taken by the doctors and what he told them of its benefits.
Mr Beran submits that I should not make any adverse finding about Dr Jansen’s opinion because he operates a business. That does not undermine his opinion. In any event, Dr Jansen makes appropriate concessions that medicinal cannabis is not a panacea, and a wait and see approach would be necessary.
With respect to Dr Stinton’s referral, Mr Beran submits that Dr Stinton could have declined to make the referral to Dr Jansen but he did not.
With respect to Dr Hardy, Mr Beran submits that his CV shows his work at the pain clinic and he has published on chronic pain and opioid dependence. He is clearly an expert in pain medicine and addiction, and the person best qualified to offer an opinion in this case.

CONSIDERATION

Section 60(1) of the 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 O’Shea sustained an injury to his lumbar spine arising out of or in the course of his employment with the respondent on 26 April 2006. There is no dispute as to his subsequent treatment and that he has been left with chronic pain as a result of his injury.

The question for determination is whether the trial of medicinal cannabis proposed by Dr Jansen is reasonably necessary treatment as a result of the workplace injury.

Mr O’Shea bears the onus of proof. The standard is on the balance of probabilities, meaning
[27] [2008] NSWWCCPD 134.
[28] [2008] NSWCA 246.
I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[27]; Nguyen v Cosmopolitan Homes[28].

What is reasonably necessary treatment was considered by Burke CCJ in the context of former legislation in Rose v Health Commission (NSW)[29] at [42]:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[29] [1986] NSWCC 2; (1986) 2 NSWCCR 32.

Considering the factors relevant to reasonably necessary treatment under section 60 of the 1987 Act, Burke CCJ said in Bartolo v Western Sydney Area Health Service[30]:

“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.”

[30] (1997) 14 NSWCCR 233.

With respect to Bartolo, Deputy President Roche in Diab said it was not simply a matter of asking whether it is better that the worker have the treatment or not. He said at [88]-[89]:
“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.

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.

While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”

There is no dispute that Mr O’Shea has chronic pain as a result of his injury. His evidence is that, without using cannabis, he is severely limited in his ability to undertake activities of daily living. None of the doctors suggests otherwise, and the respondent does not take issue with him on that point.
Mr Stockley submits that Mr O’Shea has provided very little evidence of the beneficial effects of using cannabis over the years. It is true that his statements of evidence are brief and contain little detail. However, he says he started using cannabis to lessen his chronic pain. When using it, he says his pain intensity is a lot lower and he can undertake more chores around the house. He states that, overall, his quality of life has significantly increased since using cannabis flower. It has enabled him to stop taking opioids.

Insofar as Mr O’Shea’s statements of evidence lack detail, I accept Mr Beran’s submission that it is made up for by the medical reports which document his use of cannabis to manage his chronic pain, and the benefits he says he receives.
Mr O’Shea says he uses cannabis to relieve his chronic pain and to enable him to stop taking opioids. His evidence is that he stopped taking opioids in 2014, and there is no evidence to suggest otherwise. Both Dr Hardy and Dr Gorman diagnosed him with substance use disorder which, in relation to opioids, was in remission. Dr Gorman’s opinion that cannabis will not stop him using opioids, seems to go against his own diagnosis, and the evidence indicates it has in fact had that effect.
Dr Jansen reported that Mr O’Shea described his daily pain as “10/10” and his symptoms as cyclical insomnia with fatigue the following day, and anxiety and depression. He was unable to work to full capacity. Mr O’Shea told Dr Jansen that cannabis made him “feel great”; when he was stiff and sore and could not move it enabled him to move. Dr Hardy reported that Mr O’Shea described a reduced pain score when using cannabis, that he could sleep through the night, that he coped better with the pain, and that his anxiety was mild compared to the substantial anxiety he had were not using it.

With respect to alternative treatments and their potential effectiveness, the evidence indicates that Mr O’Shea has exhausted all means of treatment to relieve his chronic back and leg pain.
Dr Stinton’s records document the range of treatment Mr O’Shea had had up to 2016 and that he was using marijuana for analgesia. He noted in his referral to Dr Jansen that Mr O’Shea was not able to take narcotics.
Dr Jansen noted that Mr O;’Shea was not responding to previous medications and treatments.
Dr Cleaver could only recommend further revision surgery. He said other options would be to explore pain management but that had done little for Mr O’Shea in the past. He could not see “much of a role” for physiotherapy and there was no radiologically-based intervention he could think of to treat a non-painful union. Even then, he said, Mr O’Shea would always have a painful back. The surgery in September 2020 achieved “excellent resolution” of Mr O’Shea’s lower back symptoms but, as Dr Cleaver reports, he had “a setback” in 2021 following the surgical repair of a hernia and further lower back pain.
Dr Beer, who saw Mr O’Shea on behalf of the respondent, said there was “really no other recommended treatment”. He said physiotherapy was not likely to be of any significant benefit. Given the reported significant reduction in his symptoms with the use of cannabis, Dr Beer considered it reasonable to persist with that even post-operatively.
Dr Daly considered that medicinal cannabis was “not the best choice” for treatment of Mr O’Shea’s ongoing pain. He said with “further assessment and possible treatment options”, Mr O’Shea’s pain “may resolve”. He suggested “non pharmacological means” for managing Mr O’Shea’s pain. He did not identify other possible treatment options and nonpharmacological means or indicate their likely or probable effectiveness.
Dr Gorman noted Mr O’Shea’s past treatment including that he had done a pain management course. He did not identify alternative treatment.
There is no doubt that the use of medicinal cannabis for chronic pain is controversial. The views of the Faculty of Pain Medicine and the Royal Australian College of General Practitioners cannot be lightly dismissed. However, they are not determinative.
Dr Cleaver reported that “many patients” report good pain relief with medicinal cannabis, and Dr Hardy said there was “ample evidence” its benefits where other treatments have failed, “with which a large body of pain, rehabilitation and addiction specialist would agree, despite the official positions of their educational bodies.” Mr O’Shea’s evidence is that cannabis relieves his chronic pain. I do not understand any of the doctors to dispute his claim.

I agree with Mr Stockley’s submission that approval by the TGA cannot be read as endorsement of Mr O’Shea’s claim. Essentially, TGA approval makes lawful what would otherwise be unlawful. However, it tends to underline that there are differing views about the use of medicinal cannabis for the treatment of chronic pain. It is reasonable to infer that the TGA is aware of the professional bodies’ views, but it grants approval in cases that meet its criteria.

I do not think too much can be read into Dr Stinton’s referral to Dr Jansen. It is reasonable to infer that Dr Stinton thought the referral worthwhile but he has not expressed any view as to whether the proposed treatment is reasonably necessary.
Turning to the independent reports, Dr Daly considered that limited effectiveness had been demonstrated with medical cannabis and it was unlikely to achieve “a drastic improvement” in Mr O’Shea’s underlying condition. However, as Mr Beran submits, that is not the purpose of the proposed treatment. Rather, it is to relieve the chronic pain resulting from the underlying condition. Moreover, “a drastic improvement” is not required in order to find treatment reasonably necessary for the purposes of section 60 of the 1987 Act.
Dr Daly refers to “psychosociological, biomedical issues surrounding” Mr O’Shea’s persistent pain, as factors against the proposed trial but he does not explain what they are. If he was referring to Mr O’Shea’s history of drug use and substance use disorder, he did not state so clearly and, in this regard, I would place greater weight on Dr Hardy’s opinion because that is his area of specialty.
Dr Daly referred to Mr O’Shea’s “propensity for addiction to other illicit substances” such as methamphetamine and ice, and his “problematic use of cannabis”. It is not clear that Dr Daly took into account Mr O’Shea’s evidence that he had last used methamphetamine and ice around 2014. He does not explain why Mr O’Shea’s use of cannabis was problematic.

I do not find Dr Gorman’s report particularly helpful. As Mr Beran submits, it contains a number of inaccuracies, although not all are necessarily significant. Dr Gorman understood that Mr O’Shea had commenced the trial of medicinal cannabis, and the only change in his medication was that he had ceased illicit cannabis. Not much might turn on this, except that Dr Gorman acknowledged that Mr O’Shea said he found the (medicinal) cannabis helpful.
With respect, it seems that Dr Gorman has missed the point of the proposed treatment which, as Mr Beran submits, is essentially to make lawful treatment which is effective but which would otherwise be unlawful. None of the doctors has drawn a distinction, in terms of efficacy in treating chronic pain, between illicit cannabis and medicinal cannabis. Moreover, Dr Gorman seems to overlook the benefits that Mr O’Shea says he gets with cannabis, whether medicinal or not.
Dr Gorman’s view was that the use of medicinal cannabis was to treat Mr O’Shea’s substance use disorder, and not any effects of the injury. He said it would not address Mr O’Shea’s “severe and long-lasting” substance use disorder, and it would not stop him returning to opioid therapy. As Mr Beran submits, that is not the purpose of the proposed treatment. Moreover, Dr Gorman appears to overlook that there is no evidence that Mr O’Shea has used opioids since 2014.

Dr Beer, who saw Mr O’Shea at the request of the respondent, considered it would be reasonable for Mr O’Shea to persist with medical grade cannabis, which Mr O’Shea said has caused significant reduction in his symptoms, even after further surgery. Although Dr Beer understood the trial had already commenced, that does not take away from his opinion that the proposed treatment would be reasonable.
Dr Jansen operates Cannabis Doctors Australia and it might be assumed he would recommend the use of medicinal cannabis. However, it cannot be assumed that he would make the recommendation regardless of a patient’s circumstances, just because he operates a business. Dr Jansen acknowledged that its efficacy can vary and said it was impossible to say which patient would respond and which would not. That said, his report is of limited assistance. He said he could not comment on global acceptance of medicinal cannabis therapy and he did not comment on any alternative treatment.
Dr Cleaver said he would defer to medical practitioners more experienced in prescribing medicinal cannabis. In this case, I agree with Mr Beran that the expert most qualified is
Dr Hardy. In particular, Dr Hardy was able to offer a qualified opinion about the use of medicinal cannabis against a background of Mr O’Shea’s diagnosed substance use disorders.
Dr Hardy outlined the justifications in Australia for medicinal cannabis treatment and said
Mr O’Shea met all those clinical justification criteria. He acknowledged doubts raised by the Australian Pain Society and Royal Australian College of General Practitioners but said there was nevertheless “ample evidence” of the benefits of medicinal cannabis where other treatments have failed, and “a large body” of pain, rehabilitation and addiction specialists would agree.
Dr Daly and Dr Gorman appear to place considerable weight on Mr O’Shea’s history of substance use disorder as a factor against the use of medicinal cannabis in his case. Neither deals clearly with why it would not assist with his chronic pain. I prefer Dr Hardy’s opinion. He is an addiction specialist with experience in pain management. In my view his opinion is more thorough and reasoned. Moreover he is supported by Dr Cleaver and Dr Beer.
I am satisfied that Mr O’Shea has discharged the onus on him to establish that the proposed trial of medicinal cannabis is reasonably necessary treatment as a result of his injury on 26 April 2006.

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Citations

O'Shea v Ramsey Food Packaging No 2 Pty Limited [2021] NSWPIC 499

Cases Citing This Decision

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Cases Cited

3

Statutory Material Cited

0

Diab v NRMA Ltd [2014] NSWWCCPD 72

Department of Education and Training v Ireland [2008] NSWWCCPD 134

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

[2021] NSWPIC 499

2 December 2021 (amended 3 December 2021)