Sehion v Maximum Energy Systems Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sehion v Maximum Energy Systems Pty Ltd [2022] NSWPIC 212
APPLICANT:	Joshua Sehion
RESPONDENT:	Maximum Energy Systems Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	12 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation pursuant to section 60 of the Workers Compensation Act 1987 for proposed medicinal cannabis treatment; accepted lumbar injury; whether treatment is reasonably necessary; alternative treatment in form of pain management program suggested by respondent’s expert; adverse side effects considered; where prior addiction history disclosed to treating practitioners; multimodal conservative treatment attempted with adverse reactions noted in the medical evidence; ongoing physical and psychological symptoms; Held- a one-month trial of the medicinal cannabis treatment program proposed by the treating practitioner is reasonably necessary.
DETERMINATIONS MADE:	1. A one-month trial of the medicinal cannabis treatment program proposed by Dr Michael Kale is reasonably necessary as a result of the injury on 28 June 2021. 2. The respondent to pay the costs of and incidental to a one-month trial of the medicinal cannabis treatment program proposed by Dr Kale pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Joshua Sehion (the applicant) was employed as a casual labourer by Maximum Energy (the respondent) when, on 28 June 2021, he fell from the roof of a garage sustaining injury. Liability for the injury is not in dispute.
On 22 September 2021, the respondent’s insurer received a request for approval for medicinal cannabis treatment proposed by Dr Michael Kale. Approval for the treatment was declined by notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 12 October 2021. The decision to dispute liability for the treatment was maintained on 2 December 2021.
On 17 December 2021, the applicant’s solicitor wrote to the insurer requesting internal review of the insurer’s calculation of pre-injury average weekly earnings (PIAWE). It was claimed that as the applicant had been employed by the respondent for less than four weeks at the time of injury on 28 June 2021, his PIAWE should be calculated in accordance with his projected earnings pursuant to cl 4 of Schedule 3 to the Workers Compensation Act 1987 (the 1987 Act). A PIAWE figure of $1,608.17 was claimed.
On 23 December 2021, the applicant’s solicitor forwarded additional evidence and sought further review of the decision to dispute liability for the proposed medicinal cannabis treatment.
On 30 December 2021, the insurer wrote to the applicant advising that a decision had been made to increase the applicant’s PIAWE from $300 to $425. On the same date, the insurer issued a further notice maintaining and amending the decision to dispute liability for the proposed medicinal cannabis treatment.
The current proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 10 February 2022. The applicant seeks weekly compensation from 28 June 2021 at a higher rate than that which has been paid and compensation pursuant to s 60 of the 1987 Act for the treatment recommended by Dr Kale.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 9 May 2022. The applicant was represented by Mr Bruce McManamey of counsel, instructed by
Ms Sarah King. The respondent was represented by Mr Fraser Doak of counsel, instructed by Mr Nicholas Totaro. A representative from the insurer was also present.
During the conciliation conference, Mr McManamey indicated that the applicant would seek to argue that in addition to cl 4 of Schedule 3 to the 1987 Act, cl 2 of Schedule 3 remained relevant to the calculation of PIAWE. Relying on evidence of earnings for work performed for the applicant’s own company, Processing Property Management Pty Ltd, in the 52 weeks prior to injury, Mr McManamey submitted that a PIAWE higher than $1,608.17 would apply.
Mr Doak submitted that the respondent was taken by surprise by the applicant’s submission as to the correct approach to the calculation of PIAWE and sought leave to issue a Direction for Production on Processing Property Management Pty Ltd as well as an extension of time to serve a Notice for Production on the applicant for his financial records. The respondent’s applications were opposed by the applicant but after hearing submissions from both parties, which were recorded, a determination was made to grant leave to the respondent to issue the Direction for Production and extend time for a Notice for Production to be served. A timetable for written submissions and any amended wages schedules to be lodged and served was established. The parties were informed of the Commission’s intention to determine the liability dispute in relation to the claim for weekly compensation at the conclusion of that timetable.
The parties informed the Commission that there was no barrier to the Commission proceeding to hear oral submissions and determine the liability dispute in relation to the proposed medicinal cannabis treatment in the interim. Oral submissions on that issue were heard and are the subject of this determination.
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

This determination deals only with the following issue:
(a) whether the medicinal cannabis treatment recommended by Dr Kale is reasonably necessary as a result of injury pursuant to 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;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 25 March 2022; and
(d)    the report of Dr Priyanga Arachchi, dated 18 December 2021, lodged by the respondent on 2 May 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 19 August 2021.
The applicant gave evidence that prior to the injury he was in the best possible health, regularly exercised and had a thriving social life.
On 28 June 2021, the applicant slipped off the roof of a garage whilst attempting to get onto a ladder. The applicant’s left arm and leg slapped the ladder on the way down and he landed directly on his lower back, hitting his head on the ground. The applicant described the pain as excruciating and said he could not feel his left leg or lower back. The applicant’s right foot was numb and he could no longer feel his toes.
The applicant was referred for a CT scan and MRI of his lumbar spine by his general practitioner, Dr Dion Hanna, and was prescribed strong pain medication. In or around late July 2021, the applicant attended physiotherapy treatment through telehealth under the care of Hayden Pailthorpe. The applicant found the exercises and stretches worsened his pain significantly. The applicant attended this treatment only twice due to the exacerbation of his pain symptoms on the advice of his general practitioner.
The applicant said he had been referred to a neurosurgeon and had an upcoming appointment with a psychologist. The applicant’s general practitioner had suggested he return to physiotherapy after the neurosurgical consultations. The applicant said he was suffering considerable anxiety and depression due to the injury.
The applicant described his current symptoms:
“Currently, I am in immense pain in my lower back and confirm I have no capacity to work. If I stand for extended periods of time, it feels like a screwdriver has been stabbed into my hip. I now have to carry a bucket with me everywhere I go due to my persistent nauseousness and vomiting from the pain. When I walk, I have to use objects around me to lean on such as the kitchen bench. My lower back constantly aches and is tender to touch. This pain radiates down into my hips and legs which make it extremely difficult to sleep. I am bedridden and only get up to go to the toilet or to collect food that has been delivered to my front door. My quality of life is now diminished due to my workplace injuries.”
The applicant said his current treatment consisted of warm baths, pain medication and consultations with his general practitioner.

Treating medical evidence

Clinical records from Grace Medical Practice show an initial consultation recorded on 3 July 2021 by Dr Ahmed Hassanin. The applicant described pain radiating to his left leg and some pins and needles. The applicant was referred for a CT scan of his lumbar spine.
On 6 July 2021, the results of the CT scan were discussed and the applicant offered physiotherapy and NSAIDs.
On 13 July 2021, Dr Dion Hanna, noted that the applicant reported severe pain in the back and numbness in his legs as well as dizziness, confusion and vomiting. The applicant was referred to neurosurgeon, Dr Marc Coughlan and physiotherapist Mr Hayden Pailthorpe.
MRI scans of the brain and lumbar spine were also requested.
On 24 July 2021, the applicant was prescribed amitriptyline and panadeine forte. The applicant was referred to a psychologist on 30 July 2021.
On 10 August 2021 Dr Hanna recorded,
“…he did some physio last week and this was lots of pain in his back and he is the vomiting from the severe pain especially on the left side of his back the insurance company sent him to see the neurosurgeon next Monday and he would be seeing our neurosurgeon Dr Mark Couglan next month. I advised him to stop the physio for the time being until he sees the neurosurgeons.”
Following a case conference on 19 August 2021, the applicant was given a referral to
Dr Marc Russo for a pain management clinic as well as a referral to a psychiatrist,
Dr Priyanga Arachchi.
On 9 September 2021, it was noted that the applicant’s back pain was continuous and affecting his sleep.
A physiotherapy consultation on the same date recorded by Mr Ihab Soltan noted that the applicant was undertaking pain management and taking baths for relief. The applicant was attending the gym, walking and swimming but had continuous pain in the lumbar spine. On 15 September 2021, Dr Soltan noted that the applicant had been approved for a total of eight sessions.
On 1 October 2021, Dr Janet Nema recorded:
“he still in pain, difficult in moving his legs he said the pain management specialist referral is changed because the Dr is very far in New Castle.”
On 9 October 2021, Dr Coughlan prepared a report in which he stated that the MRI of the applicant’s lumbar spine showed a centrally placed annular tear at L5/S1. Dr Coughlan recommended:
“Given Joshua's age he should persevere with conservative management. He is continuing with an exercise programme. He is also looking at various types of analgesics in the hope that this will help him with his pain.
I have suggested reviewing him in a few months time. He is not that keen on cortisone as a temporary solution. Hopefully his symptoms will improve. I have explained to him that annular tears can be very slow to heal and in a small minority of patients they ultimately do come to surgery, but it is worthwhile persevering with conservative non-operative management.”
On 3 December 2021, Dr Nema reported that the applicant had an appointment with pain management on 23 February 2022 and with a psychologist on 28 January 2022.
On 4 December 2021, Mr Solton recorded:
“still in alot of pain, dowin rows and managing to do meckenzie extensions doesnt like masssage or machine
Reports gut reacts to pain killers and anti inflam doing rows every day, trying balance against wall.”

Dr Kale

On 11 September 2021, orthopaedic registrar and assistant surgeon, Dr Michael Kale, prepared a report for the insurer. The applicant had been referred for consideration of medical cannabis treatment for the management of the applicant’s chronic pain and related psychological symptoms.
Dr Kale reported that the applicant presented with a three-month history of chronic musculoskeletal back pain. It was noted that the applicant had recounted a clinical course with input from members of a multidisciplinary care team including appropriate investigations and management. Throughout this period, there had been persistent complaints of ongoing symptoms breakthrough despite multimodal analgesia. The applicant also described adverse reactions to the pharmacotherapy options he had been offered. These included significant gastrointestinal upsets including dyspepsia, nausea and diarrhoea/constipation. The loss of the applicant’s vocation, chronic pain and medication induced side-effects had a detrimental impact on the applicant’s overall quality of life as evidenced by return to cigarette smoking after previously ceasing prior to the injury.
The applicant’s current medication regime consisted of paracetamol, amitriptyline and an alternating schedule of tramadol/targin.
Dr Kale reported that the applicant had transparently and freely provided a history which included childhood trauma and homelessness during his early adolescent years. The applicant had not used illicit substances for more than seven years but noted experiencing “unbalanced and depressed” feelings as a result of his recent opioid analgesia use. Dr Kale reported:
“Joshua provides his own personal anecdote that at numerous junctures in his life where he has self-medicated with cannabis to help control acute symptoms or maintenance from other narcotics, however only recently returned following this back injury. He feels a medically supervised cannabis regimen under my care will help him control his symptoms, remove opioids from his management plan and prevent re-exposure times in his history.”
Dr Kale gave the opinion:
“I am of the firm opinion Joshua will benefit from a structured regime of medical cannabis. His use of streetgrade cannabis suggests cannabis is beneficial for him, but a more targeted and medically supervised approach to this medication will be beneficial. Particularly important in the context of previous substance dependence I feel an opioid sparing approach is favourable as is goal setting with firm return-to-work goals to be integrated into the treatment. We engaged in a frank and honest conversation and developed what I feel are realistic goals for him to work on over the coming months. Joshua is aware that he is a young man and currently not living life to his fullest potential, and is clearly motivated to improve his situation. He has agreed to a structured set of goals, and is aware that ongoing medical cannabis use would be dependent on it demonstrating clear benefit in progressing him towards work.”
Dr Kale proposed a treatment regime as follows:
“Joshua’s current opioid reliance is suggestive of the need for full spectrum cannabinoid treatment for optimal effect.
I have recommended a high concentration CBD oil with an up-titration schedule, as well as having potent anti-inflammatory and anxiolytic properties there is demonstrated evidence of synergistic effects with concurrent administration of THC. The most efficacious way of incorporating THC is via accurately titrated oil dosing.
I do not feel CBD monotherapy will be sufficient in providing symptom relief, especially in the context of a wanting to rapidly wean/cease opioids. The gradual weekly titration schedule of CBD means it is often 2- 3weeks into treatment until the patient receives a response. Contrasted to THC co-administration where the effects are felt hours after administration and a daily titration schedule enables the patient to apricate their minimal effective dose quite rapidly.
To this I feel optimal therapy of incorporating THC is to have access to both THC Oils with pharmacodynamics in keeping with a background medication with delayed onset, longer half-life and access to vaporised flower for acute symptom control within minutes. The inhalation route thorough vaporised cannabis is a safe way to rapidly achieve plasma peak for acute symptom control. Inhalation will be through either of the two ARTG registered dry herb medically registered vaporisation devices.
I have very been very successful with similar regimes in patients presenting with a similar picture to Joshua. The medication, both oils and raw flower are commercial preparations, non-compounded, TGO 93 Therapeutic Goods Administration standards specific for medical cannabis.”
In an email to the applicant dated 11 September 2021, Dr Kale outlined the costs of the proposed treatment plan. Dr Kale recommended using CBD oil twice daily starting at 10 mg increasing to 40 mg twice daily by four weeks. A bottle containing 5000 mg of CBD oil was $295.
Dr Kale recommended both Sativa (day/Midday) and Indica (Midday/Night) THC oil at a cost of $90 per 30ml bottle. A starting dose of 0.3ml 0.7ml of each oil was suggested.
Costs were also provided for the vaporisation of dried flowers through an Australian Registrar of Therapeutic Goods (ARTG) registered and approved vaporiser.

Dr Arachchi

Consultant psychiatrist, Dr Priyanga Arachchi, prepared a report for the applicant’s general practitioner after seeing the applicant via telehealth on 18 December 2021.
Dr Arachchi reported that the applicant had been struggling with emotional and behavioural difficulties since the injury which had been getting worse over time. The applicant reported ongoing sleep difficulties and sleep disturbed by pain as well as repetitive nightmares. The applicant struggled with intense preoccupations and flashbacks of the traumatic event.
Dr Arachchi recorded a developmental history that included significant developmental trauma, physical abuse by his parents, living on the streets and abuse of recreational drugs during his teenage years. The applicant had probably suffered a drug induced psychosis and was treated with psychotropic medications. The applicant reported that he had managed to stay away from recreational drugs over many years.
Dr Arachchi described the applicant’s current treatment:
“Joshua sees a psychologist (Lenita Clarke) and finds the therapy as useful. He is not on any psychotropic medications and is reluctant to consider any. Reportedly he has had difficult side effects with any medication he trialled in the past (extreme sedation with opioid pain medications) and that is his reasoning for reluctance to try any psychotropics/sleep medications. He has tried CBD oil for back pain and found some benefits with no significant side effects. Joshua indicated willingness to try medicinal cannabis for chronic pain and insomnia.”
Dr Aarachchi diagnosed post-traumatic stress disorder (PTSD) with secondary depressive symptoms and gave the opinion:
“Certain Medicinal cannabis preparations can be beneficial in containing PTSD symptoms and significant insomnia (eg: Sedapram indica Softgels). If accessible Joshua may benefit from a trial of same. Dosage: one to two capsules at night.”

Dr Gorman

The respondent relies on a medicolegal report prepared by pain management specialist,
Dr David Gorman, dated 29 November 2021.
Dr Gorman’s report noted a date of injury of 28 September 2021 although a history of injury “four months ago on 18 June 2021” was noted in the body of the report.
Dr Gorman took a history that MRIs of the cervical, thoracic lumbar spine and brain did not reveal any “significant abnormalities”. The applicant had been seen by Dr Marc Coughlan and no surgery had been suggested. The applicant had been seen by an exercise physiologist and was working with a physiotherapist. The applicant had also been referred to a psychologist because of a diagnosis of PTSD.

Dr Gorman noted that the applicant’s psychologist had recommended a review by Dr Kale. Dr Kale had suggested medicinal cannabis to reduce pain. A full spectrum cannabinoid treatment including both CBD and THC had been recommended.
Dr Gorman noted that the applicant had been taking Endone and other opioids including tramadol but was not taking these now. The applicant had reported taking a marijuana joint which did help him sleep.
Dr Gorman noted that the applicant had been referred to Dr Russo, which he considered was appropriate. Dr Gorman expressed the opinion that medicinal cannabis was not appropriate for the applicant so soon after an injury.
Asked how widely accepted was the use of medicinal cannabis for treatment of similar conditions, Dr Gorman responded:
“The use of medicinal cannabis for chronic pain is occurring, it is not supported by the premier body of pain specialists in Australia, the Faculty of Pain Medicine. A press release from 2021 and the position statement from 2019 are attached. Similarly, the Royal ANZ College of Psychiatrists does not support the use of medicinal cannabis for psychological disorders such as anxiety, depression or PTSD.”
Dr Gorman said the main barriers to the proposed treatment were:
“… it is addictive, it’s sedative effect, the fact that it will stop him driving and also the fact that it will preclude him from rehabilitation at some work sites.”
Asked to identify any alternative treatment options, Dr Gorman said:
“It is appropriate that he sees Dr Marc Russo in terms of other alternatives – the main focus should be on a multidisciplinary pain program approach rather than any invasive pain treatments. He has marked fear avoidance behaviours, has used opioids and is very deconditioned and inactive.
These are the main things which will be focused upon in a pain program. He has been attending an exercise physiologist who mentioned that he was pain focused and suggested a physiotherapy approach. The physiotherapy approach with a psychologist through a multidisciplinary pain program is the ideal approach.”
Asked whether the proposed medicinal cannabis was reasonably necessary due to work injury, Dr Gorman responded:
“Mr Sehion’s work injury is still causing ongoing pain. However, it is not appropriate that medicinal cannabis be used and for the following reasons, it is not reasonably necessary:
1.     It is an ineffective analgesic, as outlined by the Faculty of Pain Medicine Position Statement attached.
2.     With THC added to, it will stop him driving and interfere with his rehabilitation. Many work sites will not allow patient on medicinal cannabis.
3.     With THC added, he will be taking an addictive compound which will be difficult to cease.
4.     The sedative effects of the medicinal cannabis will interfere with his motivation for rehabilitation.
5.     Any increase in appetite associated with the medicinal cannabis will further worsen his weight gain.
6.     He has overused alcohol after the accident and commencing another substance which is addictive would be unwise.
7.     Medicinal cannabis is not recommended for use in chronic pain by the faculty of pain medicine role for psychological disorders by the Royal ANZ College of psychiatrists – I have outlined the position statements.”

Applicant’s submissions

The applicant noted that injury was not in dispute. Reference was made to the applicant’s evidence describing extreme pain and his current disabilities. The applicant’s current treatment was noted to include physiotherapy.
The applicant referred to the report of Dr Kale, dated 11 September 2021. Dr Kale recommended the use of medicinal cannabis. Dr Kale took a history of persistent complaints of symptom breakthrough despite multimodal analgesia. The applicant had adverse reactions to the pharmacotherapy options provided to him and had already had multidisciplinary treatment. Dr Kale took a history of substance abuse and noted the unbalanced and depressed feelings the applicant described from his opioid analgesia. Dr Kale noted that the applicant had previously self medicated with cannabis to control acute symptoms.
Dr Kale expressed a firm opinion that the applicant would benefit from a structured regime of medical cannabis in the context of previous substance dependence, and an opioids sparing approach was considered to be favourable. Dr Kale described having success in similar cases.
The applicant referred to Dr Arachchi’s report and the indication that the applicant had trialled CBD oil at his own expense and that such a trial had been beneficial. Dr Arachchi suggested that medicinal cannabis may be of assistance in relation to the applicant’s psychological symptoms. The applicant submitted that his medical evidence suggested the proposed treatment would be worth trying in relation to both his physical and psychological symptoms.
The applicant suggested that there was some confusion regarding the timing of the injury in Dr Gorman’s report which was relevant given his opinion that the proposed treatment was not reasonably necessary so soon after injury.
Dr Gorman referred to the addictive and sedative effects of medicinal cannabis as reasons why the treatment was not reasonably necessary. The applicant submitted that the alternative treatment was opioids which had the same addictive and sedative properties.
Referring to the literature attached to Dr Gorman’s report, the applicant noted that the TGA recommended that treatment be monitored. The response to treatment, its effectiveness and any adverse effects should be assessed by the treating physician after one month.
The studies referred to in the literature indicated that across all chronic non- cancer pain conditions, cannabinoids were more likely than a placebo to produce a 30% reduction in pain. The applicant said this suggested the proposed treatment was effective in reducing pain. There was substantial evidence that cannabis was an effective treatment for chronic pain in adults.
The applicant submitted that the research on which Dr Gorman relied actually provided support for the applicant’s claim in so far as it described significant research that the treatment was efficacious in the relief of chronic pain.
The applicant referred to the relevant judicial authorities and submitted that the proposed treatment was accepted and legalised. The applicant had trialled alternative treatments and these had failed. The applicant noted that the costs were set out in Dr Kale’s email to the applicant. Although those costs were not cheap they were still moderate. There was a lack of obvious alternative treatment available. The applicant submitted that the Commission would have very little difficulty in concluding that the proposed treatment was reasonably necessary.

Respondent’s submissions

The respondent referred to the report of Dr Gorman and noted that a history was taken of the applicant dealing with his pain at the time of that report without medication. The respondent submitted that the applicant’s submissions suggested a stark choice between opioids or cannabis treatment. Dr Gorman identified alternative treatment options including a pain management program under the care of Dr Russo.
The respondent observed that Dr Gorman had identified a number of side-effects including the possibility of weight gain and addictiveness. Dr Gorman’s concerns in regard to the addictive properties of the treatment were not misplaced given the evidence that the applicant had returned to cigarette smoking.
Referring to the literature attached to Dr Gorman’s report, the respondent noted that various studies had been considered by the Faculty of Pain Medicine in giving their ultimate conclusion that the scientific evidence for the efficacy of cannabinoids in the management of chronic non-cancer pain was insufficient to justify endorsement of their clinical use.
The most recent study referred to, dated in 2018, concluded that it appeared unlikely that cannabinoids were highly effective in treating non-cancer pain.
The respondent submitted that any confusion with regard to the timing of the injury in
Dr Gorman’s report was not of great significance. The applicant consulted Dr Kale only three months post injury which was not a particularly lengthy time.
The respondent submitted that alternative treatment was available and likely to be effective. There were a number of downsides to the treatment proposed. The respondent submitted that the Commission would be compelled to reach the conclusion that the treatment was not reasonably necessary.

Applicant’s submissions in reply

The applicant noted that Dr Gorman recommended a pain management program. That recommendation ignored the fact that the applicant had already been treated by a multidisciplinary care team. The applicant had tried physiotherapy and exercise physiology and was seeing a psychiatrist.
The costs of a pain management program were unknown and it was unclear whether such treatment would be more cost-effective or clinically more effective in treating the applicant’s symptoms.
Despite this treatment, the applicant remained totally incapacitated for work. Dr Gorman’s alternative treatments had been tried and already found to be ineffective.

FINDINGS AND REASONS

Section 60 of the 1987 Act relevantly provides:
“(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).”
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[1] where Burke CCJ stated:
“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.”
[1] (1986) 2 NSWCCR 32 (Rose).
Further, his Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[2] and stated:
“The question is should the patient have this treatment or not. If it is better that he has 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.”
[2] [1997] NSWCC 1.
In Diab v NRMA Ltd[3], to which the parties have referred in these proceedings, Roche DP provided a summary of the relevant principles as follows:
“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’.”[4]
[3] [2014] NSWWCCPD 72.
[4] At [88] to [90].
Deputy President Roche commented further[5]:
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[5] At [86].
As noted by the parties’ submissions, there is no dispute in the present case that the applicant sustained an injury to his lumbar spine in the event on 28 June 2021. The evidence before me indicates that the injury remains symptomatic and that the applicant has no current capacity for work as a result of that injury.
The treating medical evidence and the histories recorded by both Dr Kale and Dr Gorman suggest that the applicant’s care has been coordinated by his general practitioners and has consisted of pharmacotherapy, physiotherapy, exercise physiology and referrals to a psychologist and psychiatrist. The applicant has also been seen by a neurosurgeon,
Dr Coughlan, who diagnosed an annular tear at L5/S1 and recommended that the applicant persist with conservative treatment.
The applicant’s evidence and the clinical records described a number of adverse effects experienced in response to the conservative treatment offered to date including gastrointestinal and psychological symptoms associated with opioid analgesic use. The evidence also identified an exacerbation of symptoms associated with some early physiotherapy. The applicant later returned to physiotherapy treatment under the care of
Mr Solton. Whilst this appears to have been better tolerated, Mr Solton’s records show that the applicant was still experiencing significant symptoms of pain.
The clinical records suggest that the applicant was due to be seen by pain management specialist, Dr Marc Russo, in February 2022. There is no evidence before me from the applicant or otherwise to confirm whether the consultation took place, or any recommendations made by Dr Russo if it did. It is of note that both the reports of Dr Kale and Dr Gorman predate this scheduled consultation.
The applicant relies on the evidence from his treating psychiatrist, Dr Arachchi and orthopaedic registrar, Dr Kale in support of his claim that the medicinal cannabis treatment proposed by Dr Kale is reasonably necessary. The reports from both practitioners suggest that a fulsome and accurate history of the injury, treatment received to date and ongoing symptoms was taken. Both practitioners were also aware of the applicant’s prior history of substance abuse and recent use of alcohol and tobacco. Armed with an apparently complete history, both practitioners recommended medicinal cannabis treatment albeit in different forms.
In weighing the applicant’s evidence, I have noted that the evidence from Dr Kale is now more than seven months old. Given that the injury occurred less than 12 months ago it is of some concern that no updated evidence taking account of any improvements following the continuation of other conservative treatment methods, including physiotherapy, has been obtained. The most recent treating medical evidence, does, however, suggest a continuation of pain and psychological symptoms and I note that the applicant has continued to receive weekly compensation on the basis that he has no current work capacity.
Weighing against the evidence from the applicant is the report of Dr Gorman. Dr Gorman opined that the proposed treatment was not reasonably necessary and provided a number of reasons in support of that opinion. Those reasons predominantly related to the addictive and sedative effects of medicinal cannabis. As noted by the applicant, however, those same side-effects are associated with the opioid analgesics previously prescribed.
In giving their opinions, the applicant’s practitioners have demonstrated an awareness of the applicant’s past use of illicit substances and recent use of tobacco and alcohol. Notwithstanding that history, medicinal cannabis treatment has been recommended in the applicant’s particular circumstances.
Dr Gorman also noted that medicinal cannabis was not recommended for use in chronic pain by the Faculty of Pain Medicine or for psychological disorders by the Royal ANZ College of Psychiatrists.
The literature attached to Dr Gorman’s report noted that the regulatory environment for the use of medicinal cannabis in Australia had changed and that medicinal cannabis was being used to treat pain. The Faculty of Pain Medicine noted that chronic non-cancer pain patients should engage in a multimodal management program.
The evidence before me suggests that the applicant is not proposing to treat his condition solely with cannabinoids but is continuing with physiotherapy and psychological/psychiatric treatment as well as regular reviews by his general practitioner. Whilst the Faculty of Pain Medicine found the scientific evidence at the time of its paper to be insufficient to justify endorsement of the clinical use of cannabinoids, it noted a number of studies in which their use was found to be effective.

It is of particular note that the Therapeutics Goods Administration guidance for the use of medicinal cannabis in the treatment of chronic non-cancer pain in Australia recommended that any treating physician who elects to initiate cannabinoids therapy should assess response to treatment, effectiveness and adverse effects after one month. Dr Kale’s evidence also suggests that a review would be performed at one month under the program recommended by him.
Some of the studies referred to in the literature attached to Dr Gorman’s report suggest that the treatment proposed by Dr Kale is appropriate for the applicant’s symptoms and is potentially effective. Dr Kale himself described success using such treatment in similar cases. Whilst I accept that the treatment is not endorsed by the Faculty of Pain Management or Royal ANZ College of Psychiatrists, there is evidence before me indicating that the treatment is accepted by a body of medical experts as being appropriate and likely to be effective in the treatment of pain, such as that experienced by the applicant. Whilst the evidence does not suggest that the treatment would completely eradicate or alleviate the applicant’s symptoms, there is evidence that such treatment could reasonably be expected to produce a material reduction in symptoms.
Evidence from Dr Kale as to the costs of the proposed treatment suggests that those costs are not insignificant. No evidence has been provided as to the costs of any alternative treatments, including a pain management program under the care of Dr Russo, by comparison.
Although alternative and potentially effective treatments do appear to be available, the evidence before me indicates that the applicant has accessed a range of conservative treatment modalities to date. The applicant has experienced adverse reactions to some of those treatment modalities and has continued to experience incapacitating physical and psychological symptoms. Although a pain management program under the care of Dr Russo may well be appropriate and more effective than the treatment options trialled to date, the availability of such treatment does not necessarily preclude the proposed treatment from being reasonably necessary as a result of injury also.
Weighing all of the evidence, I am satisfied at the present time that a one-month trial of the treatment program proposed by Dr Kale is reasonably necessary as a result of injury. Noting the significant passage of time and ongoing treatment since the applicant was last seen by
Dr Kale and the recommendation by the TGA Guidance document for an assessment of the response to treatment, effectiveness and adverse effects after one month, I am not satisfied at the present time that the treatment proposed is reasonably necessary beyond the period of a one-month trial.
There will be an order pursuant to s 60 of the 1987 Act that the respondent pay the costs of and incidental to a one-month trial of the medicinal cannabis treatment program proposed by Dr Kale.

[2022] NSWPIC 212

12 May 2022