Shead v Accuro Home and Community Care Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shead v Accuro Home and Community Care Pty Ltd [2024] NSWPIC 553
APPLICANT:	Nicole Louise Shead
RESPONDENT:	Accuro Home and Community Care Pty Limited
MEMBER:	Cameron Burge
DATE OF DECISION:	4 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation in relation to cervical and thoracic spine injuries; cervical spine injury admitted; thoracic spine declined on basis the symptoms are referred from the cervical spine; claim for provision of medicinal cannabis; opposed as not reasonably necessary; Held – the applicant suffered an injury by way of aggravation to underlying pathology in her thoracic spine in the accident at issue, such finding supported by her undergoing a scan of only that body system a mere three days post-injury; claim for permanent impairment compensation remitted to the President for referral to a Medical Assessor to determine the applicant’s whole person impairment; the medicinal cannabis is reasonably necessary as a result of the applicant’s injury; the fact other treatment modalities are available but not preferred does not render the cannabis unreasonable, particularly when the applicant’s treating pain specialist recommends it; respondent to pay the costs of and incidental to a six month trial of medicinal cannabis.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury to her cervical spine and thoracic spine in the course of her employment with the respondent on 16 November 2021. 2. The permanent impairment claim is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 16 November 2021. Body systems referred: cervical spine and thoracic spine. Method of Assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve the Dispute and attachments; (c) Reply and attachments, and (d) Application to Admit Late Documents dated 6 September 2024 and attached documents. 4. The medicinal cannabis treatment sought by the applicant is reasonably necessary as a result of her injury. 5. The respondent is to pay the costs of an incidental to a trial of the medicinal cannabis as sought in the application.

STATEMENT OF REASONS

BACKGROUND

On 16 November 2021, the applicant, Nicole Louise Shead, was driving her motor vehicle on Henry Parry Drive, East Gosford in the course of her employment with the respondent, Accuro Home and Community Care Pty Ltd, when her car suffered a rear impact from another vehicle.
The applicant brings these proceedings seeking the payment of permanent impairment compensation together with a trial of medicinal cannabis.
There is no issue the applicant suffered an injury to her cervical spine in the accident at issue. However, the injury to her thoracic spine is disputed, as is the reasonable necessity of the proposed medicinal cannabis trial.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury to her thoracic spine, and
(b) whether the proposed medicinal cannabis trial is reasonably necessary as a result of the applicant’s injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 2 October 2024. The applicant was represented by Mr Parker, instructed by Mr Frisina. The respondent was represented by Mr Gaitanis, instructed by Ms McCaffrey.
At the hearing, the parties agreed the liability dispute in relation to the applicant’s thoracic spine was on the basis the applicant’s symptoms were referred from the injury to her neck rather than caused by any injury to the thoracic spine itself. The parties agreed that if there was a finding in the respondent’s favour on the claim for injury to the thoracic spine, then the claim for permanent impairment compensation would be dismissed.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    applicant’s Application to Admit Late Documents (AALD) dated
6 September 2024 and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered injury to her thoracic spine

The applicant carries the onus of proving that she suffered an injury to her thoracic spine. There was no issue the applicant had pre-existing pathology in that body system, however, the question is whether she suffered an aggravation to that pathology or whether her symptoms were referred from the accepted cervical spine injury.
In her statement, the applicant gave a history of the circumstances surrounding the injurious event, which is not in issue. According to the applicant, as a result of the accident she suffered injury to her neck, thoracic spine, lower back and whiplash together with shock. The applicant indicated she had also previously suffered from depression and anxiety.
The applicant disclosed that following the injury she was declared unfit for work between 6 November 2021 and 15 November 2021, following which she returned to work on a graduated return to work programme, initially working four hours per day, three days per week, increasing to six hours per day, three days per week. According to the applicant, on 10 February 2022 “my pain was exacerbated when a client tripped and grabbed me and took me down with him, I did not break the fall. As a result, I aggravated my neck, thoracic spine and lower back”.
The respondent relied on the report of Dr Bosanquet, independent medical examiner (IME). Dr Bosanquet supplied a number of reports from 24 October 2022. In his first report,
Dr Bosanquet took an accurate history of the accident at issue. When considering the radiological investigations, Dr Bosanquet noted the applicant underwent a CT of her thoracic spine on 9 November 2021, three days after the accident. Dr Bosanquet summarised the results of that scan as follows:
“No acute fracture or vertebral compression. No thoracic disc protrusion, There is degenerative disease at C6/7 with broad-based disc protrusion and vertebral body osteophytes, there is multilevel degenerative disc disease throughout the mid-thoracic spine with paravertebral osteophytes. There is no vertebral compression fracture.”
Having noted the presence of underlying pathology in the applicant’s thoracic spine and referring to the CT scan taken only three days post-accident, Dr Bosanquet formed the view the cause of the applicant’s symptoms was aggravation of underlying degenerative changes in the cervical spine. When asked whether the applicant’s thoracic spine issues related to the accident at issue, Dr Bosanquet said there was no injury to the thoracic spine, and any pain experienced in that region was referred from the applicant’s cervical spine.
For the respondent, Mr Gaitanis submitted the history given by the applicant of not having suffered prior thoracic problems was not accurate. He noted the applicant had visited her general practitioner (GP) in June of 2018, noting back problems following a motor vehicle accident. There was a further visit in November 2018 making similar complaints.
Mr Gaitanis submitted these entries demonstrated the applicant had an existing issue with her thoracic spine at the time of the accident at issue, however, she did not disclose it to any of the doctors whom she consulted for the matter, nor did she accurately describe her condition before the accident in her statement.
In her statement, the applicant said at [70] “prior to my accident I did not suffer from pain in my neck or my thoracic spine or my lumbar spine or any other part of my body”.
That quote from the applicant is not inherently contradicted by the earlier entries in the clinical records. I am satisfied those entries disclose the applicant having been involved in a prior motor vehicle accident which caused problems with her back; however, it is unclear which part of her back was in issue and in any event the last entry in which a complaint was made of back pain was nearly three years before the accident at issue. Some clinical entries suggest the applicant’s 2018 issues may have been with her lower back, others are not so clear. Nevertheless, there are no entries between November 2018 and November 2021 when the applicant had the accident at issue in these proceedings.
In my mind, the balance of the evidence is suggestive of the applicant being symptom free in her thoracic spine at the date of injury.
However, even if the applicant’s credit is called into question, I note the evidence discloses she attended for a CT scan of only her thoracic spine just three days after the accident. That is plainly consistent with the applicant having suffered an injury to that body part and of the accident at issue having caused symptoms in the pre-existing pathology in her back (and indeed her neck).
There is no issue that an injury by way of aggravation to pre-existing pathology can occur in a frank incident. There is also no issue that such an injury falls within the definition of injury set out in s 4 of the Workers Compensation Act 1987 (the 1987 Act).
Although corroboration is not necessary in a civil case, as the High Court noted in Fox v Percy (2003) 214 CLR 118 at [31]:
“... Judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearance of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.” (my emphasis).
In this matter, there is objective evidence in the nature of a CT scan only three days after the injurious incident. That scan was conducted only to the contentious body system in this matter, namely the thoracic spine. Plainly the applicant was experiencing symptoms in the thoracic spine at that time, or she would not have been referred for a scan of it. An increase in symptomology to pre-existing pathology is, as has been noted, sufficient basis to make a finding of injury by way of aggravation in the workers compensation context.
Mr Gaitanis criticised Dr Khong’s opinion on the basis he did not have the history of the pre-existing pathology and prior motor vehicle accident, however, as noted, the contemporaneous material does not support ongoing issues with the applicant’s thoracic spine in the immediate lead up to the accident at issue. Rather, there was a three-year gap between her visits to her GP concerning back pain and the 6 November 2021 accident.
This being so, I am satisfied on the balance of probabilities that the applicant suffered an injury to her thoracic spine in the accident at issue, together with the accepted injury to her cervical spine. This being so, the applicant’s thoracic and cervical spine will be the subject of a referral to determine the degree of whole person impairment arising from the injury at issue. To the extent pre-existing pathology is present in the applicant’s thoracic spine, it is a matter for a Medical Assessor to determine the degree to which any deduction should be made pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
I also note that included in the material was a report of a crash investigation engineer, Michael Griffiths. Mr Griffiths’ opinion was that the forces involved in the collision at issue were insufficient to have caused the applicant an injury to her thoracic spine.
With respect, I do not accept that opinion. Mr Griffiths is not medically qualified, and in any event, his report concerns issues relating to the motor accidents system rather than the workers’ compensation legislation. As has been noted, an aggravation in the workers’ compensation context is sufficient to be an injury.
Mr Griffiths’ opinion flies in the face of the contemporaneous medical records, including the CT scan of the applicant’s thoracic spine taken mere days after the injury at issue. I reject it and afford it no weight in determining the question of whether the applicant suffered injury to her thoracic spine.

Whether the CBD oil trial is reasonably necessary

The respondent noted the applicant had refused the prescription of opioids and further physiotherapy and instead sought the prescription of medicinal cannabis. It was submitted that until such time as the applicant had exhausted the alternative conservative treatment options available, that it could not be said the proposed trial of medicinal cannabis for six months was reasonably necessary.
With respect, I do not believe that accurately sets out the test. As noted in Diab v NRMA Ltd [2014] NSWWCCPD 72, there are a number of indicia which determine whether treatment is reasonably necessary, and the fact there are other treatment modalities available does not render unreasonable the one which a worker seeks to undertake.
The use of medicinal cannabis for relief of pain is a relatively new form of treatment, however, that does not mean it is either ineffective or inappropriate. As noted, many forms of treatment can be simultaneously available and appropriate to treat any given condition.
The applicant seeks a six month trial of medicinal cannabis. She states she has received significant pain relief from the medicinal CBD oil recommended by treating pain physician
Dr Kadavil.
Additionally, the applicant has eschewed the prospect of Ketamine infusions, which are in any event a more invasive and resource-intensive treatment than the medicinal cannabis she seeks, in that the infusions would require a five-day hospital stay. The applicant has also declined to take opioids, which are also drugs of addiction as is cannabis. It is, therefore, difficult to see how the prescription of cannabis instead of opioids can be said to be unreasonable on the basis of any potential addiction. In any event, Dr Kadavil opines the applicant’s decision to decline the opioid medication was a sensible one in her circumstances.
The respondent relied on the report of Dr Gorman, pain specialist, who indicated the main barrier to the applicant’s return to work was her inactivity and fear avoidance of movement. Dr Gorman was of the view that lack of motivation to return to work on the part of the applicant, together with sedation associated with medicinal cannabis would make the applicant’s prospects of returning to work worse and did not believe it was appropriate in the circumstances.
The applicant relied on treating pain specialist, Dr Kadavil. He referred to the applicant’s reluctance to undertake other forms of treatment in the following terms in his report of
17 July 2023:
“Nicole has a hypersensitive nervous system with nociceptive and neuropathic pain in multiple parts of her body since a car accident. She has pins and needles along with numbness on both upper limbs and right lower limb. She also has no susceptive pain in her bilateral shoulders and in the mid-thoracic area…
Nicole does not want to take any opioids, which is a wise decision with regards to neuropathic pain. Regarding other medications, we discussed:
1.In hospital ketamine infusion for five to seven days. They have experience with almost 100 patients regarding in hospital ketamine infusion. The infusion is designed to reduce overall nerve sensitivity in patients. The longevity of the effect of the medication is unpredictable. Because of that, the infusion is only tried in patients who have exhausted all other treatment options with regards to neuropathic pain and are suffering every day with increasing pain and disability. In Nicole’s case, I do not think that that is the situation right now as she continues to remain as active as possible despite the pain.
2.Medicinal cannabis. We had a short discussion regarding medicinal cannabis today. I have prescribed medicinal cannabis to more than 100 patients already. It does provide noticeable pain relief in a certain cohort of patients with neuropathic pain. I request the insurer to kindly consider approval for Nicole to try medicinal cannabis on a trial basis for at least six months’ duration.”
On balance, I find the opinion of Dr Kadavil persuasive. He sets out in detail the alternative treatment options, and rules out opioid medication as being effective and notes that Ketamine infusions are both more invasive and are a measure of last resort for neuropathic pain, requiring a five to seven day stay in hospital.
In the circumstances, I am of the view the applicant should have the proposed trial of medicinal cannabis rather than it be forborne. There is no suggestion the cost of the treatment is prohibitive, and Dr Kadavil makes clear that it is a form of treatment which is becoming widely available and is recognised as being a benefit to patients such as the applicant who suffer from neuropathic pain.
For these reasons, I am of the view that the respondent ought to pay the costs of and incidental to the proposed medicinal cannabis trial.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 553

4 October 2024