Palanca-Barros v Retaining Specialists Pty Ltd
[2023] NSWPIC 645
•30 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Palanca-Barros v Retaining Specialists Pty Ltd [2023] NSWPIC 645 |
| APPLICANT: | Rafael Palanca-Barros |
| RESPONDENT: | Retaining Specialists Pty Ltd |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 30 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation for medical treatment pursuant to section 60; accepted work injury; whether proposed six-month trial of medicinal cannabis was reasonably necessary treatment as a result of the work injury; Held – treatment with a six-month trial of medicinal cannabis is reasonably necessary medical treatment as a result of the work injury. |
| DETERMINATIONS MADE: | The Commission determines: 1. Pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act), the applicant sustained an injury to his back with a date of injury of 6 February 2018 in the course of his employment with the respondent and to which his employment was a substantial contributing factor. 2. Pursuant to s 60 of the 1987 Act, treatment with a six-month trial of medicinal cannabis is reasonably necessary medical treatment as a result of the work injury. The Commission orders: 1. The respondent to pay the costs of and incidental to applicant’s treatment in respect of a six-month trial of medicinal cannabis on production of accounts, receipts and/or Medicare Notice of Charge in accordance with s 60 of the 1987 Act. |
STATEMENT OF REASONS
BACKGROUND
Rafael Palenca-Barros (the applicant) is a 34-year-old man who was employed by Retaining Specialists Pty Ltd (the respondent) to perform labouring work. On 6 February 2018, the applicant injured his lower back when he was lifting concrete bases in the course of his work (the injury).
The applicant completed a workers injury claim form in respect of the injury on 19 February 2018. The insurer accepted liability for the injury.
By Certificate of Determination dated 11 February 2021, the Personal Injury Commission (the Commission) ordered the respondent to pay the applicant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 11% permanent impairment resulting from the injury in accordance with a Medical Assessment Certificate issued by Dr Tommasino Mastroianni on 7 January 2021.
The applicant made a claim for medical and related expenses pursuant to s 60 of the 1987 Act in respect of a trial of medicinal cannabis (CBD/THC oil) treatment pursuant to a referral to the Australia Cannabis Clinic issued by Dr David Norus on 27 October 2022 (the treatment).
By notice dated 30 January 2023 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer (the insurer) declined liability for the treatment on the basis that the treatment was not reasonably necessary as a result of an injury as required by s 60 of the 1987 Act.
On 24 July 2023, the applicant sought a review of the s 78 Notice.
By notice dated 7 August 2023 issued pursuant to s 287A of the 1998 Act, the respondent maintained its earlier decision.
PROCEDURE BEFORE THE COMMISSION
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) filed in the Commission on 22 August 2023. The applicant seeks compensation pursuant to s 60 of the 1987 Act in respect of the treatment. The respondent responded by Reply to ARD filed on 13 September 2023.
A conciliation/arbitration hearing was conducted by MS Teams on 16 October 2023. Mr Andrew Parker, counsel, appeared on behalf of the applicant, instructed by Mr Frisina, solicitor of Frisina Lawyers, together with the applicant. Ms Kavita Balendra, counsel, appeared on behalf of the respondent, instructed by Mr Twohill, solicitor of Turks Legal, together with Ms Wadick of the insurer.
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.
ISSUES FOR DETERMINATION
The respondent accepts liability for the injury.
The parties agree that the following issue remains in dispute:
(a) whether the treatment is reasonably necessary as a result of the injury as required by s 60 of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply to ARD and attached documents,
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Applicant’s evidence
The applicant gave evidence by way of a statement dated 9 October 2020 and a supplementary statement dated 15 August 2023.
The applicant stated that his general practitioner, Dr Yang Zhang, referred him to specialists in relation to ongoing severe back pain following the injury.
The applicant stated that Dr Ralph Stanford only recommended medication and physiotherapy to treat his back pain.
The applicant stated that Dr Geoffrey Rosenberg also recommended physiotherapy and some chiropractic treatment. The applicant stated that he believes the physiotherapy treatment made his condition worse and he had only temporary relief for about two days from three cortisone injections recommended by Dr Rosenberg. The applicant stated that Dr Rosenberg also recommended that the applicant undergo a disc replacement and fusion of his lower back.
The applicant stated that in about May 2019 Dr Pimental advised that he should not have surgery but should be treated conservatively with exercise, Pilates, steroid injections and radiofrequency ablation.
The applicant stated that he took medication for a long time however he ceased taking it consistently in about October or November 2019 because he experienced bad reactions to the medication which included stomach problems, skin problems, negatively affecting his mental state and significant fatigue which makes it difficult for him to drive and function. However, the applicant does continue to take medication on occasion when the pain is severe.
The applicant stated that he has tried all other means of treatment including physiotherapy, hydrotherapy, cortisone injections and consulting with a psychologist for pain management.
The applicant stated that he was told that spinal fusion surgery would have only 60% chance of success. The applicant stated that he does not wish to undergo spinal fusion surgery previously recommended by Dr Rosenberg because he is still young, he was not given a full assurance that the surgery would go well and he believes that the risk of surgery is unacceptable.
The applicant stated that he experiences ongoing pain, of varying degrees, in his low back down to his right buttock and right thigh, in the thoracic area of his spine and in the top of his right shoulder. The applicant stated that on bad days, he considers the pain levels to be a
10 out of 10. The applicant stated that because of the injury, his right leg has begun to weaken and he now walks with a limp. The applicant stated that the pain prevents him from standing, walking and driving for more than short periods, causes difficulty sleeping and prevents him from returning to physical labouring duties. The applicant stated that the pain has also resulted in him experiencing bad depression, stress and anxiety.The applicant stated that he would like to undergo cannabis oil treatment which has been recommended by Dr David Norus to alleviate his significant ongoing pain symptoms.
Treating medical evidence
Dr David Norus, Kogorah Family Practice
A referral issued by Dr Norus on 7 September 2022, referred the applicant to the Australian Cannabis Clinics for treatment of the applicant’s chronic back pain and pain related stress in relation to lumbar radiculopathy.
Dr James Yu, consulting anaesthetist & interventional pain specialist, Sydney Spine & Pain
In a report dated 6 July 2021, Dr Yu stated that he recommended an evidence based multidisciplinary pain management program, RESTORE, to identify and treat the applicant’s persistent thoracic and lower back pain condition. A Sydney Spine and Pain Patient Information Booklet recorded the applicant’s reported pain symptoms and functional restrictions and limitations.
In a report dated 12 October 2021, Dr Yu stated that the applicant had persistent thoracic and lumbar spine pain which had a significant effect on his mobility, activity and mental state. Dr Yu noted that a CT scan of the applicant’s lumbar spine from 2018 demonstrates spinal spondylosis with a disc protrusion at L4/5 and foraminal narrowing at L5/S1. Dr Yu stated that there were several “pain-related yellow flags”. Dr Yu stated that he had educated the applicant about pain biology and encouraged the applicant to learn more about chronic pain and how to use psychological methods and physical activity to calm his nervous system and to enhance his pain-coping. Dr Yu stated that he emphasised that the applicant would learn skills in the Restore pain management program which would have to be continuously practised indefinitely. Dr Yu reported that he explained to the applicant that it is possible to improve and live a life according to his values, and not according to the pain.
Pain Management Program Report, Sydney Spine & Pain
A report dated 2 December 2021, prepared by Melinda Myers, psychologist, and Lewis Capner, physiotherapist, stated that the applicant had participated in and complied with the clinic’s RESTORE pain management program. Mr Capner stated that the applicant reported continuing pain and that the applicant “still is quite fearful of the pain and what the experience of pain itself may mean in terms of ongoing tissue damage”. Mr Capner recommended that the applicant engage with an exercise physiologist to build the applicant’s confidence with moving forward physically despite the pain. Mr Capner also recommended that the applicant undergo hydrotherapy.
Dr Geoffrey Rosenberg, orthopaedic surgeon
In a report dated 23 March 2022, Dr Rosenberg stated that the applicant continues to struggle with back pain and some leg pain due to work-related injury four years ago. Dr Rosenberg stated that the applicant has L5 pars defects and a spondylolisthesis and above at L4/5 he has an annular tear of the disc. Dr Rosenberg stated that when he last saw the applicant in 2019, the applicant was looking at a two level fusion. Dr Rosenberg recommended that the applicant undergo X-rays and an MRI scan.
Diagnostic imaging
A report of a CT of lumbar spine on 14 March 2018 recorded: bilateral chronic L5 pars defects with minor L5 spondylitic antherolisthesis and mild narrowing of each L5 exit foramen; at L4/5, mild change; no significant overall central canal or foraminal stenosis.
A report of a CT lumbo-sacral spine on 27 July 2018 recorded: stable grade 1 anterolisthesis of L5 on S1 due to bilateral L5 pars interarticular defects; mild bilateral L5/S1 foraminal stenosis.
A report of a CT thoracic and lumbar spine on 14 July 2021 recorded: bilateral L5 pars defects with some 5-6mm of forward slip of L5/S1; some old changes of Scheurmann’s disease in the thoracic spine with anterovertebral body wedging, some endplate irregularity and some superimposed osteophyte formation; no disc protrusion and no canal or lateral recess stenosis; slight bony narrowing of the sacral neural foraminae but no overt foraminal stenosis.
Other documents
33. Other documents include an Allied Health Recovery Request dated 26 July 2021 for physiotherapy treatment to guide him through a graded exercise and strengthening program.
Clinical records
The evidence includes the progress notes of Dr David Norus in relation to the applicant’s various consultations, investigations and treatment between November 2020 and May 2023.
Independent medical evidence
Dr David Gronow, pain management specialist
Dr Gronow provided an independent medical opinion, qualified by the insurer.
In a report dated 7 December 2022, Dr Gronow stated that the applicant reported pain in his lower back on the right side radiating around the lateral buttock, which radiates up into the thoracic lumbar region and is aggravated by activity. Dr Gronow stated a diagnosis of soft-tissue injury to the applicant’s lumbar spine with secondary significant muscle spasm of the thoracolumbar region and possibly apophyseal joint component to his pain on the background of a PARS defect at the L5/S1 level.
Dr Gronow stated that medicinal cannabis is not appropriate in the applicant’s case as it is not anticipated that there is significant short or long-term benefits in pain relief or functional gain. Dr Gronow referred to articles and stated that that there is no scientific evidence that medicinal cannabis is of benefit for chronic pain, that long-term use and adverse effects have not been formulised and there is increasing evidence that there are potential long-term effects in terms of cognition, memory and psychological effects. Dr Gronow stated that use of medicinal cannabis in chronic pain is not widely accepted. Dr Gronow stated that alternative treatment could involve the use of transcutaneous nerve stimulator, muscle relaxant therapy, local mobilisation by a pain therapist and an assessment of median nerve branch blocks.
Dr Gronow expected that the applicant’s condition would gradually improve although he accepted that that applicant’s condition may not totally resolve.
Dr Mark Hardy, Addiction Medicine Specialist, Pain Management Specialist
Dr Hardy provided an independent medical opinion, qualified by the applicant.
In a report dated 26 June 2023, Dr Hardy stated that the applicant reported significant ongoing pain symptoms and functional limitations and restrictions. Dr Hardy stated a diagnosis of grade 1 anterolisthesis of L5-S1, L4/5 Disc protrusion with L5 foraminal stenosis, resulting in chronic nociceptive lumbar pain, radiating to the thoracic region, specifically right rhomboid region, as well as chronic right sided neuropathic pain, namely sciatica to the right buttock and leg, with neurogenic claudication, neuropathic in origin and Bilateral L5 Pars defects. Dr Hardy stated that the applicant’s employment was the only contributing factor to the injury.
Dr Hardy stated that the applicant’s prognosis remains guarded. Dr Hardy stated that the applicant had undergone limited, but appropriate, conservative treatment, including traditional analgesics and anti-inflammatory medication, three injections in his spine and a reasonable trial of conditioning, without significant improvement. Dr Hardy stated that surgical treatment should be a last resort as, although there was a possibility of improving the applicant’s symptoms, it carried a risk of making matters worse.
Dr Hardy stated that a six-month trial of medicinal cannabis treatment to determine its effectiveness to satisfactorily reduce the applicant’s pain and improve his functional capacity was reasonably necessary treatment. Dr Hardy stated that it may be necessary to alter the dose, timing and formulation to establish the correct regimen for the applicant. Dr Hardy stated that, on average, such treatment costs approximately $300-$600 per month, in addition to consultation expenses. Dr Hardy quoted a number of studies in support of medicinal cannabis for chronic pain. Dr Hardy disagreed with Dr Gronow’s statement that medicinal cannabis is not a widely accepted treatment in Australia for chronic pain.
Dr Hardy stated that the evidence of other pain medicine interventions is not supportive of a successful outcome and should not be entertained prior to a review of the results of a trial of cannabis treatment.
Submissions
Counsel made written submissions in accordance with directions.
Applicant’s submissions
Mr Parker’s submissions on behalf of the applicant may be summarised as follows:
(a) the insurer’s s 78 notice dated 30 January 2023 and subsequent notice declined the claim on the ground that the treatment is not “reasonably necessary”. The insurer did not raise any issue about particularisation nor who would provide the treatment and any attempt by the respondent to rely on such ground is opposed;
(b) the dispute is limited to whether the worker is entitled to a six-month trial of medicinal cannabis;
(c) there is no issue in relation to ss 4 and 9A of the 1987 Act. The worker has a significant and serious structural back injury, confirmed by radiology, which Dr Mastroianni describes in the Medical Assessment Certificate as “spondylolisthesis Grade 1, degenerative disc disease and right leg sciatica and radiculopathy” and Dr Yu described as being “discogenic [with] non-radicular lumbar spine pain”;
(d) the applicant’s evidence is not contradicted, is consistent with medical evidence and common sense, and should be accepted. The applicant’s evidence is that, despite extensive conservative treatment, he has remained with significant pain, limitation and restrictions. The applicant’s evidence is that alternative treatments have been largely ineffective, caused adverse side-effects or been declined. The applicant’s evidence is that he has considered the opinion for medicinal cannabis and wishes to proceed with it;
(e) the requested trial of medicinal cannabis for six months is supported by Dr Hardy and Dr Norus. Dr Norus’ evidence is that the applicant has exhausted all other conventional treatment options;
(f) the evidence of Dr Gronow is problematic and should not be accepted;
(g) the test relevant to s 60 of the 1987 Act is that set out in Diab v NRMA Ltd [2014] NSWWCCPD 72 at 89;
(h) the treatment sought is modest, minimally invasive and has the potential to relieve the applicant from pain;
(i) it is a reasonable proposition that the treatment sought is only a trial and, if it is successful, it will be re-evaluated after six months;
(j) any order will plainly require the treatment to be given by an appropriately qualified practitioner and the implementation of the treatment will be a matter for that practitioner, and
(k) accordingly, the application should be granted, albeit the order should provide that the treatment should be administered by an appropriately qualified practitioner.
Respondent’s submissions
Ms Balendra’s submissions on behalf of the respondent may be summarised as follows:
(a) The respondent accepts that the applicant has suffered a back injury for which he has been assessed at 11% whole person impairment. The respondent also accepts that the applicant has obtained significant medical treatment over time as evidenced by the applicant’s statement;
(b) the pleaded claim involves a claim for ongoing CBD oil treatment as recommended by Dr Hardy in the report dated 26 June 2023. Importantly, Dr Hardy’s report refers to a six-month trial of medicinal cannabis and states that the applicant should “be given 6 months to determine its effectiveness. It may be necessary to alter dose, timing and formulation to establish the correct regimen for the client”. On that basis, it is clear that Dr Hardy does not support the applicant’s claim for ongoing CBD oil treatment but supports a trial only. There has been no attempt to amend the claim and therefore the claim, as expressed in the ARD, cannot be said to be reasonably necessary in accordance with the requirements of s 60 of the 1987 Act;
(c) the respondent relies on the report of Dr Gronow in relation to whether the cannabis oil trial can be considered reasonably necessary. In particular, the respondent relies on Dr Gronow’s opinion that there is no scientific evidence that medical cannabis is of benefit for chronic pain and that he finds support for the proposition in the Guidelines provided by the Australian and New Zealand College of Anaesthetists (ANZCA) and the International Association for the Study of Pain and a recent study that disputes the effectiveness of cannabis as anything more than a placebo;
(d) the respondent also relies on Dr Gronow’s opinion that the use of medical cannabis in chronic pain is not widely accepted and he has suggested alternative treatment. That is supported by the evidence of Dr Hardy who described the treatment as “novel”;
(e) having regard to the evidence, the Commission should not be satisfied that the treatment is reasonably necessary, and
(f) even if the treatment is reasonably necessary, the insurer would not be liable for the cost of the treatment because of the operation of ss 60(2A)(b) and (c) of the 1987 Act because the referral dated 7 September 2022 contains no information regarding the treatment provider, the fact that is a trial or that the applicant would be supervised under a regime in accordance with the report of Dr Hardy.
Applicant’s submissions in reply
Mr Parker’s submissions in reply may be summarised as follows:
(a) the respondent’s submissions concerning the pleadings are misconceived as the applicant’s claim is based on the evidence and it is clear that the applicant seeks a trial as set out in Dr Hardy’s report;
(b) the respondent did not raise in any dispute notice a dispute on the grounds of the operation of ss 60(2A)(b) and (c) of the 1987 Act. The applicant opposes leave pursuant to s 289A of the 1998 Act (which has not been sought), and
(c) in any event, the respondent has misconceived the nature of the claim. The implementation of the treatment will be a matter for the parties after the Commission’s declaration and it can only be implemented on the basis of appropriate medical qualifications.
FINDINGS AND REASONS
Section 60(1) of the 1987 Act relevantly provides:
“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 applicant seeks compensation for the cost of a six-month trial of medicinal cannabis treatment.
I am satisfied that the treatment is “medical or related treatment (other than domestic assistance)” within the meaning of s 60(1)(a) of the 1987 Act.
In Diab v NRMA Ltd,[1] Roche DP, referring to the decision in Rose v Health Commission (NSW),[2] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury:
“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] NSWCC2; (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 tis place in the usual medical armoury of treatments for the particular condition.”
[1] [2014] NSWWCCPD 72.
[2] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Roche DP also noted that the Commission has generally referred to and applied the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service:[3]
“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.”
[3] [1997] NSWCC 1; 14 NSWCCR 233.
Roche DP found:
“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.”
I will consider each of those elements separately.
The appropriateness of the treatment
There is no dispute that the applicant sustained a work injury on 6 February 2018.
Medical imaging and other medical evidence consistently reported, and I accept, that the applicant has bilateral chronic L5 parts defects with a disc protrusion at L4/5 and foraminal narrowing at L5/S1.
The applicant’s evidence and the treating medical evidence consistently shows that the applicant has experienced and continues to experience chronic back and leg pain, which has significantly affected his mobility, activity and mental state.
The applicant’s credit is not in dispute and the respondent has not challenged the applicant’s reported pain symptoms.
Having regard to the evidence, I accept that the applicant has experienced and continues to experience significant chronic back and leg pain as a result of the work injury on 6 February 2016, which has significantly negatively affected his functioning and mental state.
The applicant’s treating general practitioner, Dr Norus, has referred the applicant for the treatment to treat his chronic pain and pain related stress.
The cost of the treatment
Dr Hardy stated that the cost of the treatment is, on average, approximately $300 to $600 per month, in addition to consultation expenses.
There is no inconsistent evidence in relation to the cost of the treatment and I accept Dr Hardy’s evidence in that regard.
Whilst there is no clear evidence in this regard, and this is not a determinative factor, I note that the cost of the treatment is likely to be relatively modest in comparison to the cost of spinal fusion surgery recommended by Dr Rosenberg.
The respondent has not raised any issue regarding the cost of the treatment.
The availability of alternative treatment and its potential effectiveness
The applicant’s evidence, the treating medical evidence and the independent medical evidence consistently shows that the applicant has undergone various conservative treatments in respect of his pain condition, which have not provided any enduring relief to date.
The applicant’s evidence is that he was treated with pain medication for a lengthy period until about October or November 2019 when he ceased taking it consistently because of side effects which included stomach problems, skin problems, fatigue and negatively affecting his mental state. The applicant continues to take medication on occasion when the pain is severe.
The applicant underwent three cortisone injections recommended by Dr Rosenberg, which provided only temporary relief of about two days.
The applicant participated in multidisciplinary pain management program, which included physiotherapy and hydrotherapy. The applicant’s evidence is that physiotherapy made his condition worse.
In 2022, Dr Rosenberg recommended that the applicant undergo a two-level spinal fusion surgery. Dr Rosenberg’s evidence does not provide any detail regarding risks and likely outcomes of such surgery.
The applicant’s evidence is that that he was told that spinal fusion surgery would have only 60% chance of success. The applicant does not wish to undergo spinal fusion surgery because he is still young, he was not given a full assurance that the surgery would go well and he believes that the risk of surgery is unacceptable.
The applicant’s concern regarding spinal fusion surgery is supported by the evidence of Dr Hardy who stated that surgical treatment should be a last resort as, although there was a possibility of improving the applicant’s symptoms, it carried a risk of making matters worse.
Dr Hardy stated that the applicant had undergone limited, but appropriate, conservative treatment, including traditional analgesics and anti-inflammatory medication, three injections in his spine and a reasonable trial of conditioning, without significant improvement.
Dr Gronow stated that alternative treatment could involve the use of transcutaneous nerve stimulator, muscle relaxant therapy, local mobilisation by a pain therapist and an assessment of median nerve branch blocks.
Dr Gronow expected that the applicant’s condition would gradually improve although he accepted that that applicant’s condition may not totally resolve.
However, Dr Hardy stated that the applicant’s prognosis remains guarded. Dr Hardy stated that the evidence of other pain medicine interventions is not supportive of a successful outcome and should not be entertained prior to a review of the results of a trial of cannabis treatment.
No other medical evidence supports a finding that the applicant’s pain symptoms will significantly resolve without treatment. Further, there is no clear evidence that any particular alternative treatment will significantly alleviate the applicant’s ongoing pain and functional capacity.
Considering the evidence as a whole, I accept that the applicant has undergone numerous conservative treatments which have not provided any enduring relief from the ongoing pain. Further, I accept that whilst spinal fusion surgery may provide relief, it carries risk that is understandably unacceptable to the applicant. Further, I prefer and accept Dr Hardy’s evidence regarding the applicant’s prognosis because it is consistent with the applicant’s medical history to date. On that basis, I accept that the applicant’s prognosis remains guarded in the circumstances.
The potential effectiveness of the treatment and the acceptance by medical experts of the treatment as being appropriate
I note that the applicant proposes a six-month trial of the treatment consistent with the opinion of Dr Hardy. I accept that the purpose of the trial is to determine the effectiveness of the treatment to improve the applicant’s pain and functional capacity.
The independent medical experts significantly differ in their opinions regarding the potential effectiveness of the treatment and its appropriateness to treat the applicant’s pain.
Dr Gronow expressed the opinion that medicinal cannabis is not appropriate in the applicant’s case because it would not provide any significant short or long-term benefits in pain relief or functional gain and there are potential long-term effects in terms of cognition, memory and psychological effects. Dr Gronow referred to articles and stated that the use of medicinal cannabis in chronic pain is not widely accepted.
Dr Hardy supported a six-month trial of medicinal cannabis treatment to determine its effectiveness to satisfactorily reduce the applicant’s pain and improve his functional capacity was reasonably necessary treatment. Dr Hardy stated that it may be necessary to alter the dose, timing and formulation to establish the correct regimen for the applicant. Dr Hardy quoted a number of studies in support of medicinal cannabis for chronic pain. Dr Hardy disagreed with Dr Gronow’s statement that medicinal cannabis is not a widely accepted treatment in Australia for chronic pain.
I prefer and accept Dr Hardy’s opinion regarding the appropriateness of the treatment for the applicant. Dr Hardy’s opinion is supported by the evidence of the applicant’s treating general practitioner. Considering the applicant’s lengthy medical history and ongoing pain and functional restrictions and limitations, I consider that it is appropriate in the circumstances to trial the treatment for a six-month period in accordance with the opinion of Dr Hardy.
Such a trial would have to be implemented by an appropriately qualified medical practitioner. The dosage, timing and formulation would require monitoring and possibly adjustment from time to time to determine any optimum therapeutic benefit for the applicant.
Having regard to all the matters set out above, I am satisfied that the treatment is reasonably necessary.
The insurer accepts liability for the injury. The respondent has not submitted that the treatment does not arise as a result of a work injury.
On that basis, and having regard to the evidence as a whole, I am satisfied that the injury materially contributed to the need for the treatment and that the need for the treatment arose as a result of a work injury.
CONCLUSION
I am satisfied, having regard to the considerations identified in Diab v NRMA Ltd[4] and Rose v Health Commission (NSW)[5] and the evidence as a whole that the treatment is reasonably necessary as a result of the injury.
[4] [2014] NSWWCCPD 72.
[5] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
SUMMARY
In summary, the Commission determines:
(a) pursuant to ss 4 and 9A of the 1987 Act, the applicant sustained an injury to his back with a date of injury of 6 February 2018 in the course of his employment with the respondent and to which his employment was a substantial contributing factor, and
(b) pursuant to s 60 of the 1987 Act, treatment with a six-month trial of medicinal cannabis is reasonably necessary medical treatment as a result of the work injury.
On that basis, the Commission orders the respondent to pay the costs of and incidental to applicant’s treatment in respect of a six-month trial of medicinal cannabis on production of accounts, receipts and/or Medicare Notice of Charge in accordance with s 60 of the 1987 Act.
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