Sheehan v Transdev Sydney Ferries Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sheehan v Transdev Sydney Ferries Pty Ltd [2022] NSWPIC 422
APPLICANT:	Eric Sheehan
RESPONDENT:	Transdev Sydney Ferries Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	29 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Medical expenses; claim for cost of trial of medicinal cannabis trial where already approved and commenced at applicant’s own expense to some benefit; applicant previously underwent two fusion operations and a raft of conservative treatment to little effect; whether proposed trial is reasonably necessary per section 60 of the Workers Compensation Act 1987; Held — the treatment is reasonably necessary as a result of the injury; a treatment does not to either fully cure an injured worker or be the only appropriate treatment in order to be reasonably necessary; Diab v NRMA Ltd followed; applying the indicia out in Rose v Health Commission, the trial is reasonably necessary; the respondent is to pay the costs of and incidental to the trial of medicinal cannabis.
DETERMINATIONS MADE:	The Commission determines: 1. Leave is granted to amend the Application to Resolve a Dispute to claim both past and future medical expenses as follows: (a) deleting the amount sought at page 7 of the pleading and amending the section entitled Details of Treatment, Care or Related Expenses Needed to read “medical cannabis trial” and deleting the balance of the wording currently in the Application to Resolve a Dispute in that section. 2. The applicant suffered injury to his lumbar spine in the course of his employment with the respondent on 26 April 2016. 3. As a result of the injury, the applicant requires a trial of medicinal cannabis. 4. The trial of medicinal cannabis is reasonably necessary as a result of the injury. 5. The respondent is to pay the costs of an incidental to the trial of medicinal cannabis.

STATEMENT OF REASONS

BACKGROUND

On 26 April 2016, Eric Sheehan (the applicant) was lifting heavy barrels of diesel fuel in the course of his employment with Transdev Sydney Ferries Pty Ltd (the respondent) when he suffered a severe injury to his lumbar spine. Liability in respect of the injury is admitted.
There is no issue that since the injury, the applicant has undergone anterior and posterior fusion procedures over the course of two operations in 2017, followed by three weeks recovering in hospital.
In addition to the surgery, the applicant has had physiotherapy, pain specialist reviews at the hands of Dr Deshpande, exercise therapy and other supportive rehabilitation. He has been on opioids since the injury, and has taken Tramadol 200 mg, Oxycodone 5 mg and Physeptone. The applicant has also been under the care of treating psychiatrist, Dr Rastogi. The applicant states he also takes Lyrica, Valium, Normaxin, Axit and Endone on a daily basis.
The applicant states all of those drugs assist with his pain levels, however, they have created a number of other difficulties for him, including sleep deprivation, effects on appetite, stomach discomfort and cognitive impairment.
The applicant brings these proceedings seeking payment by the respondent for a trial of medicinal cannabis. The applicant’s general practitioner, Dr Cai has been approved by the Therapeutic Goods Administration to administer the medicinal cannabis to the applicant for his chronic pain in accordance with Dr Cai’s prescription, which is for one 15 g intake of cannabis per day.
The respondent denies liability for the cost of the medicinal cannabis and says it is not reasonably necessary.

ISSUES FOR DETERMINATION

The parties agree that the only issue which remains in dispute is whether the medicinal cannabis trial is reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a hearing before me on 22 July 2022. 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.
At the hearing, Mr Morgan of counsel appeared for the applicant, instructed by Ms Guittari. Mr Gaitanis of counsel, instructed by Ms Tancred appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents;
(c)    respondent’s Application to Admit Late Documents (AALD) dated 30 June 2022;
(d)    applicant’s AALD annexing the report of Dr Rastogi dated 12 July 2022;
(e)    applicant’s second AALD dated 12 July 2022, and
(f)    applicant’s proposed third AALD dated 22 July 2022, annexing the report of Dr Deshpande dated 25 February 2022 and the report of Dr Hardy, independent medical examiner (IME) dated 13 July 2022.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the proposed trial of medicinal cannabis is reasonably necessary

The relevant test for establishing reasonable necessity of treatment is found in the decision of Burke CCJ in Rose v Health Commission (NSW) [1986] 2 NSWCCR 32 (Rose). His Honour’s judgment has been followed consistently in this Commission and its predecessors. Recently, Snell DP dealt with the decision in Rose in Honarvar v Professional Painting AU Pty Ltd [2022] NSWPICPD 12. In that matter, the Deputy President not only dealt with the non-exhaustive indicia set out in Rose, but also with the question of what constitutes “medical treatment” for the purposes of s 60. The Deputy President stated:
“33 His Honour, following a careful analysis of s60, set out the following ‘general principles’:
‘In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
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, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment forwarded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.’”
In this matter, the respondent did not challenge the notion that the proposed medicinal cannabis trial fits within the definition of “medical treatment” pursuant to the Workers Compensation Act 1987 (the 1987 Act). That is, there is no suggestion the form of the proposed treatment falls outside the ambit of the current s 59 of the 1987 Act which defines the term for the purposes of claims such as these.
Rather, the dispute in this matter is whether the proposed treatment is reasonably necessary.
In Rose, Burke CCJ further noted:
“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.”
In Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), Deputy President Roche noted the test adopted by Burke CCJ in Rose and applied it. Before doing so, however, the Deputy President provided useful commentary as to the meaning of the term “reasonably necessary”. At [86], the Deputy President said:
“86 Reasonably necessary does not mean ‘absolutely necessary’. 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 claim is one of those treatments.”
At [88], the Deputy President clearly set out the non-exhaustive list of factors to be taken into consideration in determining whether proposed treatment is reasonably necessary. The Deputy President said:
“88 In the context of s60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at 0.5 in Rose, namely:
a.The appropriateness of the particular treatment;
b.The availability of alternative treatment, and its potential effectiveness;
c.The cost of the treatment;
d.The actual or potential effectiveness of the treatment; and
e.The acceptance by medical experts of the treatment as being appropriate and likely to be effective.
89 With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative...”
In this matter, support for the applicant undergoing a trial of medicinal cannabis is found from his general practitioner, Dr Cai; treating pain specialist, Dr Deshpande, and IME and addiction medicine specialist, Dr Hardy. Opposition to the proposed treatment comes in the form of the respondent’s IME, Prof Molloy.
For the respondent, Mr Gaitanis submitted the Commission would find favour with the views of Prof Molloy, noting that each of Dr Hardy and Prof Molloy at some point indicate any cannabis trial should be undertaken with medical supervision by an appropriately qualified pain specialist. The trial at issue was undertaken by general practitioner, Dr Cai.
I reject that submission, as Dr Cai has received approval from the Therapeutic Goods Administration to prescribe the medicinal cannabis at the rate set out in the documents contained in the applicant’s AALD dated 12 July 2022. Dr Cai has been approved as a supplier and prescriber of that treatment by the relevant government authority responsible for the regulation of medicinal cannabis.
Dr Deshpande considered being involved in the trial, however, she declined to do so as she is not someone who ordinarily prescribes the treatment.
For the respondent, Prof Molloy initially indicated in his first report that a trial of cannabis may be appropriate in certain circumstances, however, as time has passed, he has hardened his view against the treatment in his subsequent two reports.
In particular, Prof Molloy indicated that the prescription of medicinal cannabis would not be appropriate in circumstances where the applicant also takes opioids and has had addiction issues in the past. I reject that opinion, noting IME addiction medicine specialist, Dr Hardy in his second report responded to Prof Molloy’s opinion as follows:
“The suggestion that [the applicant] see a psychiatrist with expertise in pain medicine immediately follows his concerns of Mr Sheehan taking cannabis, benzodiazepines and narcotics. There is no mention of Mr Sheehan potentially seeing an addiction medical specialist (such as I am), or an addiction psychiatrist, both of whom would meet such requirement and possibly exceed Assoc Prof Molloy’s recommendation in terms of potential benefit to Mr Sheehan. Having worked alongside the pain specialist and psychiatrist in multidisciplinary pain clinics, both specialist groups would routinely defer to me for advice on patients such as this client.
In Assoc Prof Molloy’s letter dated 29 June 2022, he reiterated (from his report on 7 June 2021) that Mr Sheehan reported no benefit from medicinal cannabis treatment, which is discordant with my findings in my report dated 1 September 2021, wherein the patient reported a 30% improvement in his pain with it. He had not experienced this kind of benefit from other conventional treatments.
Having comprehensively reviewed his past history (including mental health, addiction and medication), I am reassured that he has tried and considered a sufficient range of traditional treatments to qualify for a medicinal cannabis trial. A past history of addiction, including polypharmacy with opioids and benzodiazepines, is not an absolute contraindication to the use of cannabis treatments, but requires notification and authority from NSW Health’s Pharmaceutical Regulatory Unit to proceed. As an addiction medicine specialist prescribing medicinal cannabis, this is routine practice.”
Dr Hardy’s view is broadly consistent with that of Dr Deshpande, who noted in her most recent report dated 25 February 2022, that the applicant had previously reported benefit with medicinal cannabis use with pain and mood, and she had discussed the option of treating him with medicinal cannabis. She opined “he should be offered opportunity to trial an alternative treatment to help with [his physical and psychological condition, chronic pain refractory].”
I do not accept the respondent’s submission that Dr Cai has not been approved as the prescriber and supervisor of the applicant’s treatment. That much is clear from the documents produced from the Therapeutic Goods Administration.
Prof Molloy’s first report contained a history from the applicant that he had tried medicinal cannabis in the past and it had not made a significant difference. This history is disputed by the applicant in his statement, and I accept the applicant when he states he had previously tried cannabis and found benefit from it. I also accept the applicant’s statement, borne out by the voluminous medical evidence in this matter, that he has tried a pain management programme in the past and largely found it unsuccessful. This evidence in my view obviates Prof Molloy’s opinion that a pain management program should be trialled before medicinal cannabis.
It is, in my opinion, noteworthy that Prof Molloy stated in his first report that cannabis was increasingly used as an accepted treatment modality in certain cases, however, the outcomes in such cases are unclear.
In this matter, the applicant’s IME, Dr Hardy, noted a history of a 30% improvement in pain for the applicant once he began taking medicinal cannabis. As is clear from authorities such as Rose and Diab, it is not necessary for a proposed treatment to provide complete alleviation or a cure of symptoms in order to be reasonably necessary. I reject the respondent’s submission that the applicant’s claimed benefits from the cannabis are not significant, noting he has been assessed with a 40% whole person impairment, and has had on his own evidence improved sleep, appetite, gastrointestinal status and a 30% reduction in pain.
By any measure, a nearly one-third reduction in the amount of pain suffered by someone with so severe an injury as the applicant is indeed significant. Moreover, the applicant has reduced the intake of some of his opioid medication and continues to be supervised by an appropriately qualified medical practitioner in the course of the trial that is being approved by the Therapeutic Goods Administration.
Additionally, and broadly in keeping with Dr Molloy’s opinion, the applicant has in fact been under the care of treating psychiatrist Dr Rastogi. She provided a report attached to the applicant’s late documents dated 12 July 2022. In that report, Dr Rastogi said:
“He is on medicinal cannabis and finds it helpful with sleep, pain and eating. He has stopped medications currently. He is coping better and adapting to pain. The pain is still severe from waist down and he has had ablation with limited effect.”
Dr Rastogi also indicated the applicant had noted improvement since being on cannabis, had changed his outlook in life and was generally coping better.
I also reject the respondent’s submission that Dr Cai is not an appropriately qualified or experienced practitioner to prescribe and supervise the applicant’s medicinal cannabis trial, in circumstances where the evidence discloses the applicant has consulted Dr Cai on approximately 400 occasions since his injury. It is apparent that Dr Cai is considered appropriate by the relevant authority to prescribe the medication and is intimately familiar with the applicant’s condition.
In my view, the medical and lay evidence in this matter is overwhelming. The treating psychiatrist, general practitioner and neurosurgeon opinion supports the view of Dr Hardy, IME that the medicinal cannabis trial is reasonably necessary. For reasons already stated, I do not prefer the views of Assoc Prof Molloy. Instead, I accept the opinions of Dr Hardy, Dr Rastogi and Dr Cai. They are all of the view that the medicinal cannabis is reasonably necessary in the circumstances.
While I do not place as much weight upon the Therapeutic Goods Administration documentation, it also follows from the granting of the medicinal cannabis trial that the relevant Federal Government Authority is of the view that the applicant appropriately qualifies for such a trial, and I agree with that conclusion, albeit taking into account the relevant questions in Diab as to reasonable necessity.
In looking at the relevant material, I note the following:
a.     the treatment is considered appropriate for persons in chronic pain in the applicant’s position by his treating physicians and by the Therapeutic Goods Administration;
b.     the applicant has undergone exhaustive surgical and conservative treatment. It has been almost entirely unsuccessful. There is no reasonably available alternative treatment which would appear to afford the applicant a better outcome or as good an outcome as the trial of medicinal cannabis;
c.     the cost of the treatment is not, in my view, prohibitive. The applicant asks only for a trial of the medicinal cannabis;
d.     the treatment has been used to decent effect by the applicant already, in that on his own account, he has suffered an approximately 30% reduction in pain and has also had a better outcome with eating and with sleep, and
e.     on balance, the preponderance of the medical experts in this matter supports an acceptance of the treatment as being appropriate and likely to be effective.

SUMMARY

For the above reasons, I find the medicinal cannabis trial is reasonably necessary, and the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2022] NSWPIC 422

29 July 2022