Siladi v Healthscope Operations Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Siladi v Healthscope Operations Pty Ltd [2022] NSWPIC 381
APPLICANT:	Dallas Siladi
RESPONDENT:	Healthscope Operations Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	14 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for incurred and proposed treatment with Cannabidiol (CBD) Oil pursuant to section 60 of the Workers Compensation Act 1987; conflicting medical opinion as to whether CBD Oil is reasonably necessary treatment; Held – CBD Oil is reasonably necessary treatment as a result of workplace injury to the agreed right knee and secondary psychological condition; Diab v NRMA Ltd applied.
DETERMINATIONS MADE:	1. Pursuant to section 60 of the Workers Compensation Act 1987 the CBD Oil is reasonably necessary treatment as a result of injury sustained by the applicant on 28 September 2020 in the course of his employment with the respondent. 2. The respondent is to pay the costs of the proposed CBD oil treatment pursuant to section 60 of the Workers Compensation Act 1987 on production of accounts and/or receipts. 3. The respondent is to pay the applicant the sum of $2,731.80 for the claimed incurred CBD oil treatment.

STATEMENT OF REASONS

BACKGROUND

Dallas Siladi, the applicant, was employed with the respondent, Healthscope Operations Pty Ltd, as a ward person/supervisor when he sustained injury to his right knee on
28 September 2020 while moving a heavy bed. Thereafter, he developed a secondary psychological condition. Liability for the right knee injury and the secondary psychological condition have been accepted by the respondent’s workers compensation insurer, AAI Limited t/as GIO.
Mr Siladi underwent arthroscopic surgery to his right knee in June 2021 performed by
Dr Dickinson.
The claims for compensation in these proceedings are confined to treatment in the past and proposed for the future relating to the use of CBD oil. The respondent disputes this treatment is reasonably necessary treatment pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).
The Application to Resolve a Dispute (ARD) was amended to delete the amount of $3,000 for future treatment and to instead insert that “a general order” is sought.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
21 June 2022. Mr Dewashish Adhikary, counsel, instructed by Ms Aleisha Nair, solicitor, appeared for Mr Siladi, who was present. Mr Phillip Perry instructed by Ms Naomi Tancred, solicitor, appeared for the respondent. The proceedings were conducted by Ms Teams audio-visual platform due to the COVID-19 situation.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Application to Admit Late Documents (AALD) filed by the respondent on
6 June 2022 attaching the Reply.

Oral evidence

There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Mr Siladi has provided statements dated 5 March 2021[1], and 24 February 2022[2]. Mr Siladi states he was recommended to have surgery for his right knee injury in October 2020 but there was a delay in the insurer approving the surgery. He describes the pain he experienced, and he said he was reliant on Mobic, Panadol and Panadeine Forte. He underwent arthroscopic surgery in June 2021. He says the persistent pain caused him significant deterioration in his mood.
[1] ARD p 1.
[2] ARD p 4.
In his second statement he says he has not been able to take any more opioid medication as it caused side effects with his stomach. He was prescribed Loxalate to manage his depression, but he said he experienced side effects. In addition Mirtazapine was prescribed, together these drugs slightly helped his mood, but he began having nightmares. Mirtazapine was ceased and he was given Melatonin for sleep. He said the combination of this and Loxalate did not improve his mood and he had panic attacks and constant anxiety. He said his psychological symptoms put a strain in his marriage and he did not leave the house for three months. He says he became agitated.
Mr Siladi describes the treatment he obtained from the various psychologists he consulted. He says Ms Barone referred him to Dr Goriparti, psychiatrist, as she suspected his medication was not sufficient. He says in October 2021 he was advised to cease these medications and to try Agomelatine to help with his depression and Quetiapine was prescribed to assist with nightmares and lack of sleep. Mr Siladi says Dr Goriparti around this time prescribed CBD oil.
Mr Siladi states that since taking the CBD oil his mood has substantially improved, he feels less anxious and has greater ability to use his knee and move freely. He says when taking the CBD oil he has a better relationship with his family, and he feels calmer and more in control of his emotions. He also feels more comfortable socialising.

Treating medical evidence

Contained in the ARD are clinical notes from Paula Blaze, Converge International for telephone counselling on 23, 24, 25 September,12 and 13 October and 25 November 2020[3].
[3] ARD pp 76 to 77.
There are also records from Thinkahead Counselling, Tanja Limnios dated 13 and
[4] ARD p78 to 79.
[5] ARD pp 22 to 59.
22 April 2021[4]. Records are also available from Ramsay Psychology, where the psychologist Ms Barone practices, dealing with consultations from 7 June 2021 to 11 February 2022[5].
Ms Barone reported to Dr Jonathan Adams on 7 June 2021[6] about the referral to her of
Mr Siladi. She noted there had been delay by the insurer to approve the knee surgery and
[6] ARD p 68.
Mr Siladi’s mental health had deteriorated together with his ability to use exercise and teams sport to manage stress.
Ms Barone advised that Mr Siladi presented with a reactive depression and anxiety with listlessness, feeling of hopelessness and sadness, sleeping difficulties, emotional lability, rumination, loss of self-esteem, loss of concentration, withdrawal from normal activities and increased passive suicidality. Ms Barone set out her counselling regime including “CBT, DBT and ACT therapies”.
On 23 July 2021 there is an entry in the Ramsay Psychology records that Dr Miah had approved CBD oil and was referring Mr Siladi to Dr Goriparti[7].
[7] ARD p 28.
Ms Barone reported to Dr Diep after a session with Mr Siladi on 14 August 2021 advising that he was not ready to return to work and while he had made some progress he still had moderate symptomology.[8]
[8] ARD p 70.
The clinical entry on 14 August 2021 referred to usage of CBD oil and it is noted that there were improvements in his sleep and anxiety levels[9].
[9] RAD p 33.
On 20 August 2021 Mr Siladi saw Dr Yvonne Diep who recorded in her clinical notes:
“patient is aware I am not a medical cannabis prescriber and this is not my special interest and at this point in time the RACGP has not released any guidelines on medical cannabis use
noted RACGP 2019 position statement, the college has not got evidence based data on medical cannabis use for anxiety/other medical conditions, also the college does not know long term side effects of medical cannabis use. Therefore patient is aware I am unable to advise on medical cannabis use.
Patient is aware he is under the opinions and care of the psychiatrists and psychologist.
Noted Dr Goriparti and Melinda Barone states from mental health view, he is not fit to return to work.[10]”
[10] ARD p 95.
On 21 August 2021 in the Ramsay Psychology notes it is noted his sleep was “really good still” and it was the best he felt in months. The dosage of CBD oil is recorded and noted to be non- drowsy at 1.4ml[11]. On 1 October 2021 it is recorded that the CBD oil dosage was to be increased per day[12]. On 22 October 2021 it is recorded “best I’ve felt in a year” “CBD oil- great for pain, inflammation and anxiety”[13]. On 23 November 2021 in the Ramsay Psychology records it is noted feels anxiety has improved adjacent to a reference to CBD oil[14]. Also on 13 December 2021 it is recorded that depression and anxiety improved heaps[15]. On 11 February 2022 there is a reference in these notes to “the CBD oil that obviously helps”[16].
[11] ARD p 35.
[12] ARD p 44.
[13] ARD p 46.
[14] ARD p 50.
[15] ARD p 51.
[16] ARD p 58.
On 12 November 2021 Ms Barone reported to Dr Paliwal that Mr Siladi had improved mental health as he has maintained his psychopharmaceutical regime and reports better sleep, reduced anxiety, reduced depression and less reactive emotional lability[17].
[17] ARD p 72.
Dr Miah, consultant psychiatrist, reported on 25 July 2021 that he had undertaken a telehealth consultation with Mr Siladi[18]. He diagnosed that Mr Siladi was suffering from major depressive episode- in partial remission and possibly an underlying anxious/emotionally-dysregulated personality vulnerabilities and unresolved trauma. He recorded Mr Siladi’s past history as including long-term anxiety and emotional regulation issues since his teens but stated that he had no history of clinical depression or psychiatric treatment. The doctor sets out details of adversities Mr Siladi has faced earlier in his life.
[18] ARD p 60.
He notes that a trial of Duloxetine was not well tolerated by Mr Siladi and the then current regime of Venlafaxine 150mg and Olanzapine 5mg had been modestly effective. He stated that Mr Siladi reported his depressive symptoms had improved to 4 or 5 out of 10 prior to his surgery, however, with post-operative pain and physical impairment his depression deteriorated again, and insomnia remained a problem. Mr Siladi informed the doctor that Venlafaxine gave him a lot of energy and drive, which left him moody and frustrated due to his ongoing physical limitations. He was finding psychological treatment with Melinda Barone extremely helpful.
Dr Miah advised at that stage Mr Siladi should keep taking his current medication regime, but should there be no further improvement in depression or insomnia he should switch to a tricyclic antidepressant such as Nortriptyline. For the insomnia, the doctor wanted for
Mr Siladi also to take Mirtazapine at night and Melatonin and Dr Miah advised the general practitioner if these did not work short-term use of antihistamines, benzodiazepines and zolpidem/ zopiclone should be tried. Dr Miah added that Ms Barone had suggested a referral for CBD oil. Dr Miah says this would be a reasonable option failing the above measures.

Dr Goriparti

Dr Goriparti, consultant psychiatrist, provided a report dated 29 July 2021 to Dr Miah relating to his initial assessment with Mr Siladi[19]. Dr Miah had referred Mr Siladi to him for consideration of prescribing the use of medicinal cannabis as Mr Siladi had been struggling with side effects from psychotropic medications.
[19] ARD p 62.
The doctor took a history of the work injury to the right knee, and he noted that Mr Siladi had tried to return to work on light duties but was unable to cope and left work. He records that Mr Siladi’s usual coping mechanism was to exercise twice a day to cope with stress and he was unable to go for walks due to his workplace injury. He noted that Mr Siladi’s general practitioner, Dr Jonathan Adams, referred him to a psychologist. He also recorded that
Mr Siladi had driven a car into telegraph pole, he denied intending to kill himself, but
Mr Siladi told the doctor he did not care about the outcome.
Mr Siladi gave a history that he always had anxiety but not to the extent it affected his functioning. The doctor noted the weight gain after trialling Venlafaxine, Olanzapine and Mirtazapine. The weight gain made his knee pain worse, and Mr Siladi advised he was having nightmares with Mirtazapine. He was taking heavy pain killers which gave him gastritis.
Dr Goriparti diagnosed major depression in partial remission with ongoing insomnia, moderate anxiety which has become worse since the injury and the unsolved and unprocessed trauma from his childhood.
Dr Goriparti advised Dr Miah that he strongly supported a trial of CBD oil which he states helps with pain, anxiety and insomnia and he noted in Mr Siladi’s case he had already trialled Olanzapine and Mirtazapine but had been unable to tolerate both of these medications. He added there was no evidence of substance abuse and he advised Mr Siladi to keep up his sessions with Ms Barone and Dr Miah. Dr Goriparti prescribed Mr Siladi Adaya CBD oil 100 and he was told to titrate the dose gradually from 0.25ml BD to a maximum of 3ml per day.
Dr Goriparti reported to Dr Diep about a review of Mr Siladi on 7 October 2021[20]. Apparently this appointment was made at the request of Ms Barone as Dr Miah was not available and she was worried about Mr Siladi’s recent deterioration in his mental state. Apparently
[20] ARD p 64.
Mr Siladi reduced the dose of Venlafaxine XR due to side effect a month earlier and his mood deteriorated rapidly since then. He advised Dr Goriparti that he started using CBD oil and found it helped with pain and anxiety but was not effective for insomnia. Dr Goriparti suggested Mr Siladi trial Agomelatine and Quetiapine for insomnia. Mr Siladi informed the doctor that he wanted to continue the CBD oil and Dr Goriparti provided another prescription for it.
Dr Goriparti reported to Dr Ankur Paliwal on 3 December 2021[21]. He noted Mr Siladi was taking 2ml per day of the CBD oil as he could not afford to take more. He had been taking 3ml a day and it made a remarkable difference and helped with inflammation in his knee, pain and anxiety symptoms. He was tolerating Agomelatine well and was to increase the dose to 50mg OD to target residual depressive symptoms. Mr Siladi was keen to return to work.
[21] ARD p 66.
In a report dated 10 December 2021[22] Dr Goriparti advises that he had reviewed Mr Siladi three times. The doctor outlines the psychological symptoms suffered by Mr Siladi including low mood, social isolation, anhedonia, decreased energy and motivation levels and passive suicidal thoughts. He notes that he has physical and psychological symptoms of anxiety. He adds that Mr Siladi’s symptoms got so bad that he contemplated suicide and drove his car into a pole. Dr Goriparti recorded that Mr Siladi received treatment from Dr Miah as well as Melinda Barone, psychologist.
[22] ARD p 17.
Dr Goriparti advises that he believes CBD oil is reasonably necessary treatment in
Mr Siladi’s case because he has been trialled on a few psychotropic medications such as Olanzapine and Mirtazapine, which were either ineffective or gave him severe side effects. He noted that Mr Siladi, when on such medication, had gained 10 kg which made his knee pain worse and prolonged his recovery and rehabilitation and he also experienced anxiety that did not respond to antidepressants such as Venlafaxine XR and Mirtazapine.
The doctor noted that since Mr Siladi had commenced using CBD oil he had reported it helped with his anxiety symptoms and also the pain and inflammation in his knee. He managed to reduce the use of pain killers and other psychotropic medications. Dr Goriparti states that before Mr Siladi commenced on CBD oil he had to take medications every night to help him sleep, but now only take Quetiapine three times a week.
Dr Goriparti advises:
“Medicinal cannabis is an emerging treatment but it is widely used in Australia and overseas as a treatment for management of anxiety and pain. TGA has approved it as an alternative treatment option for individual cases who have tried other options.”
The doctor advises that Mr Siladi in the future will need a regime of reviews by his general practitioner, psychologist and psychiatrist and in terms of medication he recommends Agomelatine 50mg OD, Quetiapine 25mg PRN and Adaya CBD 100 oil with dosage of 3ml a day. He notes the cost of the CBD oil is $250 per 30ml. As to the effectiveness of this treatment in Mr Siladi’s case he opines that it has been immensely effective helping pain, inflammation and anxiety. The doctor adds that he is aware of debate among medical experts about medicinal cannabis in anxiety and pain management, but he says there is ample evidence to suggest that it can be used as third or fourth line treatment if other options are ineffective as was the situation in Mr Siladi’s case.
On 4 January 2022 Dale Rolfe, physiotherapist, reported to Dr Paliwal[23]. He noted it was six months after the right knee arthroscope and Mr Siladi was able to walk with no limp and continued to improve on all objective measures. Mr Rolfe stated that Mr Siladi was “no longer taking the CBD oil which has likely increased his physical and psychological symptoms”.
[23] ARD p 74.

Past treatment expenses claim

The claim for past treatment expenses is confined to the costs of CBD oil 30ml. A schedule reveals a total of 11 doses from 29 July 2021 to 8 April 2022 at a total cost of $2,731.80[24].
[24] ARD p 100.

Medico-legal evidence

Dr Olivia Lee

Dr Lee, psychiatrist, provided a report to the insurer dated 24 June 2021[25]. Dr Lee took a history from Mr Siladi that he had always been an anxious person, but he kept active and would exercise twice a day to manage. She noted he commenced taking anti-depressants 10 or 15 years earlier and he had intermittently been on Escitalopram since then. He also sought EAP support about two years earlier because of covid and running the mortuary was stressful. She records he found the EAP support helpful.
[25] AALD p 4.
Dr Lee has a history of the workplace accident to his right knee on 28 September 2020. She relates the onset of his psychological symptoms and the treatment he has undertaken.
Mr Siladi’s development history is summarised.
Dr Lee diagnosed that Mr Siladi had symptoms consistent with an adjustment disorder secondary to the medical condition of his knee pain. She states he had become increasingly socially withdrawn and his sleep is disturbed due to pain. He has feelings of frustration, irritability, guilt and lack of purpose. Dr Lee found no clear functional impairment associated from his pre-injury anxiety and the stressors he faced in the past. In terms of treatment,
Dr Lee recommended cognitive behaviour therapy, ongoing psychiatric review and noted he may need pain management treatment after his right knee surgery.
In a supplementary report dated 6 September 2021[26] Dr Lee was asked about Dr Goriparti’s recommendation for the prescription of medicinal cannabis. Dr Lee states she could not comment whether it is appropriate for Mr Siladi’s knee injury. In relation to his psychological injury she says:
“medicinal cannabis is not in our evidence based guidelines from the college at the moment. There are certainly anecdotal and some cases series of it being effective but primarily in the realms of MS and seizures but much less so and much less robust in the realms of anxiety and depression.
I would have considered trials of other antidepressant augmentation like bupropion, Fluoxetine, Duloxetine or even tricyclics, or TMS and ECT to have more robust evidence for treatment of mood and anxiety.”
[26] AALD p15.
Dr Lee is asked a series of questions and states there is emerging evidence for the use of medicinal cannabis for depression and anxiety. She says it is possible that it will benefit
Mr Siladi but there are more evidence based treatment where chances of success are more likely. She advises,
“I recommend consideration for TMS (20 daily sessions) even ECT (a course is 12
sessions generally 2-3 x a week or 1 x a week as outpatient) if depressive symptoms
interferes with his ability to engage in rehabilitation. There are many other
antidepressants such as vortioxetine, valdoxan, duloxetine, bupropion which are
more activating and have more robust evidence in treatment of low mood.
Alternative augmentation strategies such as Quetiapine or Pregabalin (pregabalin is
in the NICE guidelines for treatment of anxiety disorders) the nature of the symptoms
are anxiety related. 4-6 weeks trial of any of the above at adequate dose are
reasonable.
It is difficult to recommend as I am not clear on what might be the predominant symptoms he is presenting with at the moment.”

However, towards the end of her report Dr Lee states if a person is insistent then a time limited trial of six weeks to two months is reasonable but for it to cease if the person has not made any functional gains on it.

Legal principles

The legal test to be applied when determining whether proposed treatment is reasonably necessary as a result of a work place injury as required by section 60 of the 1987 Act was considered in Diab v NRMA Ltd[27] wherein Roche DP stated at [86]:
“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.”
[27] [2014] NSWWCCPD 72, Diab.
In Diab Deputy President Roche cited the decision of Judge Burke in Rose v Health Commission (NSW)[28] with approval and stated:
[28] [1986] NSWCC2; (1986) 2 NSWCCR 32, Rose.
“[88] 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.

[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. 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.
[90] 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’.”

Submissions

These principles need to be considered in the context of the evidence in Mr Siladi’s case. There is a divergence of opinion as to whether the CBD oil is reasonably necessary treatment. On the one hand Dr Goriparti, the treating psychiatrist who recommends this treatment, does believe it is reasonably necessary. His opinion is supported by Dr Miah. However, the respondent relies upon the opinion of Dr Lee, who recommends alternate treatment.
As both counsels’ submissions have been sound recorded I will not refer to them verbatim and the main thrust of their submissions is referred to below.

Determination

Mr Siladi’s counsel drew attention to portions of Mr Siladi’s statement to illustrate the effects of the right knee injury and consequential psychological condition and the range of treatment undertaken by Mr Siladi. Counsel submitted that the evidence of the positive effects that the CBD oil has had on Mr Siladi is unchallenged. The respondent cautions extrapolating from Mr Siladi’s evidence the proposition that it was the CBD oil which made the difference, given at the time he was taking it he was also on other medication and Mr Siladi is not an expert.
However, I find this evidence is of significance, particularly in the situation where Dr Lee examined Mr Siladi in June 2021 which was before Mr Siladi had commenced using the CBD oil. As a consequence of this timing, Dr Lee did not know of the positive effects the CBD oil had on Mr Siladi. Dr Lee did not examine Mr Siladi again. Her second report is a supplementary report, given without the benefit of a re-examination. Dr Lee acknowledges the drawback in her situation, being called on to provide an opinion for treatment because as she states “[i]t is difficult to recommend as I am not clear on what might be the predominant symptoms he is presenting with at the moment”.
I consider that this is a significant shortcoming in the respondent’s case. Dr Lee has not taken into account how Mr Siladi actually found the CBD oil’s effect on his mental and physical health.
I find it is difficult to afford weight to the opinion of Dr Lee when she is not in as informed position as that of Dr Goriparti, who has been treating Mr Siladi. Dr Miah and Dr Goriparti have had the benefit of treating Mr Siladi before and after he commenced on the CBD oil.
Mr Siladi’s counsel submitted that it is also relevant that Dr Goriparti is not the only psychiatrist that has supported the use of CBD oil and that Dr Miah, psychiatrist, specifically referred Mr Siladi to Dr Goriparti to consider the use of CBD oil.
Mr Siladi’s counsel submitted that consideration of the criterion referred to in Diab to the evidence in Mr Siladi’s case leads to the conclusion that the CBD oil treatment has actually been shown to be effective not only by the evidence of Mr Siladi but also as demonstrated by the observations of Dr Goriparti as set out in his reports and also by the entries in the Ramsay Psychology records, which I have summarised above. The respondent has criticised Mr Siladi’s counsel’s reliance on these entries because it observes the references to CBD oil are quotes from what Mr Siladi informed them, and they are not findings by the treating practitioners.
Mr Siladi’s counsel submits that notwithstanding Dr Lee’s comments about the college not having guidelines regarding the treatment with CBD oil for anxiety, Dr Lee did refer to it as an emerging treatment with the support of anecdotal evidence. Emphasis was also placed on Dr Goriparti’s opinion wherein he stated that the TGA has given approval for the use of CBD oil in cases where other treatment is not effective.
The respondent submitted that when Dr Goriparti commented on Dr Lee’s opinion he acknowledges there is debate about prescribing CBD oil in anxiety and pain management conditions, but Dr Goriparti says it can be used as fourth line treatment. The respondent submits however Mr Siladi had not reached the fourth line of treatment because even though there were problems with some medication he improved after taking Quetiapine and Agomelatine. It was further submitted that at the same time he was taking CBD oil and there is no evidence that it was the CBD oil that was responsible for improvement. So the respondent argues the applicant has not established that CBD oil is effective treatment. It argues while there has been failure of some treatment there has not been failure of all treatments leading to a fourth line treatment such as CBD oil.
The respondent submitted that there is available alternate treatment, which Dr Lee gives evidence is effective and robust treatment. However, I note one of those treatments is ECT, being electro-convulsive therapy treatment. I note that Dr Lee when making this recommendation does not evaluate any potential side effects of that type of treatment. This can be contrasted by the fact that Mr Siladi has actually undergone treatment with CBD oil, under the supervision of his treating psychiatrists, and no particular side effects of CBD oil have been noted.
The costs of such alternate treatments have not been addressed by Dr Lee whereas the evidence of the cost of CBD oil is demonstrated by the receipts in relation to the past usage. I find the cost of CBD oil is not excessive.
Mr Siladi’s counsel also submits that his doctors have not rushed into prescribing the CBD oil. A range of medications have been trialled and many of them had side effects such as Mr Siladi having nightmares and weight gain, the latter was a problem for his recovery from the right knee injury. The summary of the treating medical evidence I have outlined earlier in these reasons demonstrates the regime of treatments prescribed to Mr Siladi and the effects they had on him, which led Dr Miah to consider the use of CBD oil and to that end he referred Mr Siladi to Dr Goriparti. Counsel submitted that Dr Goriparti has found that the CBD oil helped Mr Siladi with pain, inflammation and anxiety.
The respondent argues that Mr Siladi has fallen short on at least four of the five matters in Diab at [88]. In relation to appropriateness of the treatment, the respondent argues that is necessary to understand the conditions suffered by Mr Siladi. The respondent listed these as insomnia, anxiety and continuing pain. It submits that even Dr Goriparti did not find the use of CBD was effective to treat insomnia. In relation to anxiety, the respondent submits Mr Siladi when stating he has improved is not an expert and so he cannot conclude that this improvement is due to the effect of the CBD oil. Counsel submitted the improvement was in around October 2021. It was submitted that Dr Lee found that medicinal cannabis was not supported for psychological injury and Ms Limnios noted that the general practitioner was reluctant on 22 April 2021 to use CBD oil and Dr Diep stated that the RACGP did not recommend CBD oil and the long term side effects are not known.
Having considered all of the evidence and counsels’ submissions, I find I cannot rely upon the opinion of Dr Lee because as I have found above she did not examine Mr Siladi after he commenced to take CBD oil. I, therefore, do not know what her opinion would be about its actual effectiveness as treatment for Mr Siladi when compared to the other treatments she recommends. I prefer the evidence of Dr Goriparti because he has actually treated Mr Siladi and seen him before and after the CBD oil was trialled. While I am cognisant of the evidence about the general practitioner being reluctant to consider CBD oil, I consider more weight should be given to experts such as Dr Goriparti because he has experience with prescribing this medication.
While it is true that at the time Mr Siladi was taking the CBD oil he was also being prescribed other medications by Dr Goriparti, I do not accept the argument by the respondent that it has not been established that it is the CBD oil which has been effective in improving Mr Siladi’s condition. Mr Rolfe, the physiotherapist, commented in January 2022 that Mr Siladi was “no longer taking the CBD oil which has likely increased his physical and psychological symptoms”.
Also, Dr Goriparti has reviewed Mr Siladi since he first prescribed CBD oil. Therefore, I find he is well placed to determine the effectiveness of the CBD oil as part of the treatment regime he has put in place. In the review on 7 October 2021 Dr Goriparti recorded that
Mr Siladi was tolerating the CBD oil well which the doctor stated was helping him with pain and anxiety. This was before the doctor changed Mr Siladi’s medication to prescribe Quetiapine for insomnia[29] and, because of the side effects of Venlafaxine XR, he prescribed Agomelatine. So there is evidence before these other medication were commenced that the CBD oil was having some benefit to Mr Siladi. Furthermore, in his review on
[29] ARD p 64
[30] ARD p 66.
3 December 2021 Dr Goriparti noted when Mr Siladi was using 3ml per day of CBD oil it made a remarkable difference with his knee inflammation, pain and anxiety. Dr Goriparti increased his dosage of Agomelatine to help with depression[30].
The respondent argues that Mr Siladi had not reached the fourth line of treatment and so it was too early to try CBD oil. However, Dr Goriparti’s statement in his report dated
10 December 2021 was that there is ample evidence to suggest that CBD oil can be used as a third or fourth line of treatment if other options are ineffective. He did not restrict his comments to there being a necessity of having tried four medications prior to CBD oil being prescribed. In that report Dr Goriparti refers to Olanzapine and Mirtazapine being tried and found to be ineffective or had severe side effects and also that Venlafaxine XR did not assist him. So, at least three drugs were tried before the CBD oil. In addition to medication as treatment, Mr Siladi had psychological treatment, pain medication and physiotherapy.
For all of the above reasons I do not accept the arguments made by the respondent. I find that Dr Goriparti and Dr Miah have been carefully considering and reviewing Mr Siladi’s psychological condition and have included CBD oil as one of the treatments to try and which has been found to be effective. For how long Mr Siladi will need such treatment will be a matter no doubt his doctors will continue to monitor. At the present time, I find that treatment in Mr Siladi’s case with CBD oil is reasonably necessary treatment as a result of the injury he sustained in the course of his employment with the respondent.

SUMMARY

Pursuant to section 60 of the 1987 Act I find the CBD Oil is reasonably necessary treatment as a result of injury sustained by the applicant on 28 September 2020 in the course of his employment with the respondent.
I order that the respondent is to pay the costs of the proposed CBD oil treatment pursuant to section 60 of the 1987 Act on production of accounts and/or receipts.
I order that the respondent is to pay the applicant the sum of $2,731.80 for the claimed incurred CBD oil treatment.

[2022] NSWPIC 381

14 July 2022