Westbrook v Batemans Bay Cool-it Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Westbrook v Batemans Bay Cool-it Pty Ltd [2024] NSWPIC 434
APPLICANT:	Scott Westbrook
RESPONDENT:	Batemans Bay Cool-it Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	13 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of proposed radiofrequency neurotomy and trial of medicinal cannabis; Diab v NRMA Ltd and Murphy v Allity Management Services Pty Ltd considered; Held – award for the applicant for the cost of proposed radiofrequency neurotomy and trial of medicinal cannabis.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987 as follows: (a) the cost of radiofrequency neurotomy as recommended by Dr Paul E Ferris, and (b) the cost of a trial of Spectrum Red Cannabis Oil, as recommended by Dr Paul E Ferris.

STATEMENT OF REASONS

BACKGROUND

The applicant, Scott Westbrook (Mr Westbrook) was employed by the respondent, Batemans Bay Cool-it Pty Ltd, as an air conditioning/refrigeration mechanic.
Mr Westbrook sustained an injury to his right hip, right ankle/foot, right leg and back on
16 December 2021 when he was installing a pipe above head height and the ladder on which he was standing fell.
On 9 August 2023, the respondent’s insurer’s agent, EML NSW Limited (EML) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed liability for the applicant’s claim for the costs of radiofrequency neurotomy at right L4/5 and L5/S1, and medical cannabis therapy.
By letter dated 5 March 2024, the applicant’s solicitors requested on his behalf a review of EML’s decision.
On 19 March 2024, Insurance and Care NSW (icare) advised the applicant that EML’s decision to dispute liability was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 17 May 2024.
The applicant claimed that on 16 December 2021, he was installing a pipe above head height when the ladder he was standing on fell, thereby causing, aggravating, accelerating, exacerbating, and/or deteriorating, injuries to his right hip, right ankle/foot, right leg, and back.
The applicant claimed future medical expenses of $10,000. They included Spectrum Red Cannabis Oil at $110 per month ongoing, and radiofrequency neurotomy.
The respondent lodged its Reply on 7 June 2024.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the proposed medical treatment is reasonably necessary as a result of the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 17 June 2024. Mr Dufour appeared for the applicant, who was present. Ms Whiting appeared for the respondent, instructed by
Ms Tran of EML.
The respondent advised that it would seek leave at the conciliation/arbitration hearing to dispute that the applicant had sustained injury to his lumbar spine, and that employment was a substantial contributing factor to injury to his lumbar spine.
The applicant advised that he would oppose leave being granted to the respondent to dispute these matters.
The matter was listed for conciliation/arbitration hearing by the Teams platform on
30 July 2024.
Mr Beran of counsel, instructed by Mr Dufour, appeared for the applicant. Mr Ty Hickey of counsel, instructed by Mr Lee and Ms Sevastelis, appeared for the respondent. The applicant attended. Ms Sarhene of EML also attended but was excused from the hearing. She remained available to provide instructions if required.
Mr Hickey advised that the respondent did not seek to dispute that the applicant had sustained injury to his lumbar spine, or that employment was a substantial contributing factor to the injury.
Mr Beran advised that the applicant objected to one paragraph only of the report of Dr David Gorman dated 5 July 2024, which was attached to an Application to Admit Late Documents (AALD) dated 11 July 2024, lodged by the respondent.
Mr Hickey advised that the respondent withdrew any reliance on the paragraph of the report to which objection was taken, and I have therefore had no regard to the penultimate paragraph on page 4 of Dr Gorman’s report (which is also at page 4 of the AALD).
The applicant sought an order that the respondent pay the costs of the treatment claimed in the Application, including a trial of medicinal cannabis.
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 (Commission) and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    AALD dated 3 July 2024 and attached documents, filed by the applicant, and
(d)    AALD dated 11 July 2024 and attached documents, with the exception of that part of Dr Gorman’s report on which the respondent withdrew its reliance, as discussed above.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Scott Westbrook

The applicant’s statement is dated 31 January 2023, but it is clear that this is an error for 2024, and the index records that it is dated 31 January 2024.
On 16 December 2021, he was installing an insulated copper pipe, to connect an outdoor system to the indoor refrigeration unit.
He was standing on a ladder, pushing pipe through, when the ladder started to fall sideways. He grabbed the pipe and managed to pull himself and the ladder back and stop the fall. In doing so, he awkwardly twisted his right ankle.
He immediately felt pain in his right ankle. Shortly after, he began having pain in his right hip with numbness and tingling down his leg.
He went to his GP (general practitioner) who referred him for scans and physiotherapy. None of this really worked, and he had to change the way he walked because of the pain in his ankle and hip.
He started to have a lot of pain in the rear of his right hit [sic: hip] and lower back. He was doing his best to deal with the pain and returned to work on light duties.
In or around July 2022 he was working on light duties and walking across a roof when his right foot slipped from under him. He managed to brace himself from falling over but felt more pain in his right ankle and leg.
He was not able to return to work with the respondent, which terminated his employment in or around mid-2023.
He was put in a moon boot and referred to Dr (Anil) Goudar, orthopaedic surgeon.
He was referred for a nerve conduction study and to Dr Patel, neurologist.
He was also referred to Dr (Paul E) Ferris for pain management. Dr Ferris had recommended L5/S1 radiofrequency neurotomy and that he begin medical cannabis therapy.
The insurer had accepted liability for his claim. He had received weekly compensation and the insurer paid most of his medical expenses. It had recently declined to pay for the radiofrequency neurotomy and medical cannabis therapy proposed by Dr Ferris.
He continued to have pain in his right ankle, leg, hip, and back, every day. He continued to have numbness and tingling in his right leg every day. He had pain that shoots into his leg and back on a regular basis.
Towards the middle of 2023, he found work with Just Better Care as a support care worker. He worked on light duties, 12 hours a week. His role was essentially to transport elderly and disabled clients to appointments and help with light household chores.
He wanted to have the radiofrequency neurotomy and medical cannabis therapy, as he hoped they would help him deal with his pain, allow him to get more work, and try to keep getting better.
He had really struggled to cope with how the injury had affected him. He continued to see
Ms Lesley Adams, psychologist, who was trying to help him cope.

Medical evidence

Batemans Bay Medical Centre

On 20 December 2021, Dr Issuru Premawardhana recorded a work injury on 16 December 2021. The applicant was working on a ladder, pushing pipes through the eves, when the ladder went right. “R/ankle intervertion” [sic]. The applicant tried to hold onto the pipes to steady himself. He also had pain in the back, side of the body, as the whole body slid to the side. He steadied his balance and pushed the pipes through.
The applicant had continued to work that day. He was still sore. He had had ongoing pain since. He complained of right ankle pain, some hip pain, “and thigh area”, but no back pain.
Dr Premawardhana’s impression was “soft tissue injury – sprain.”
On 10 January 2022, Dr Premawardhana recorded “ongoing hip pain and ankle pain much better”. The applicant had “side of leg pain”. He had not been able to get physiotherapy. He was not using pain medication regularly, but “PRN” (as needed). He was to upgrade his activity as tolerated.
On 7 February 2022, Dr Premawardhana recorded that the applicant’s sciatica was improving slowly, but he was unable to crawl into small spaces. “Still in buttock and ankle area – esp when kneeling.” The applicant still had difficulty with ladders and small spaces.
On 7 March 2022, Dr Haroon Younas recorded that the applicant had minimal improvement and needed ongoing physiotherapy.
Dr Premawardhana reported to EML on 24 March 2022.
Dr Premawardhana noted that on 20 December 2021, the applicant had right ankle and right hip area sprain/soft tissue injury following work. The mechanism of injury accorded with the applicant’s evidence.
The applicant had antalgic gait, pain with right hip and ankle examination, decreased range of motion, and tenderness of the right ankle below the lateral malleolus. He had no trochanteric bursitis clinically. No investigations had been done.
Mr Westbrook had been deemed suitable for alternate duties but had not sufficiently recovered at his last consultation to return to pre-injury duties.
The applicant had been recommended analgesics and advised to continue with physiotherapy to recover from the soft tissue injury. If he failed to recover with a sufficient program of physiotherapy, he may need imaging to targeted areas, and input from an orthopaedic specialist.
Dr Premawardhana opined that the applicant was likely to make a significant, if not full, recovery and was likely to be able to return to pre-injury duties, though the time frame was uncertain. Mr Westbrook had made some improvement and was likely to continue to improve.
There had been some difficulty accessing physiotherapy due to limited local availability and the Christmas/New Year period.
On 4 April 2022, Dr Premawardhana recorded that the applicant recently had to get into a roof and had developed more pain. He had pain in the hip, some pain down the leg, and in the ankle.
The applicant was to have three weeks of no work. Dr Premawardhana suggested he then gradually transition to routine duties, to return on 27 April. If he was not progressing, he would need review by an orthopaedic surgeon. He was to continue self exercises and further physiotherapy as needed.
On 2 May 2022, Dr Premawardhana recorded that the applicant had started to do some work. He had mild hip pain yesterday. He was to trial normal duties for four weeks. If the pain started again, he would need orthopaedic review. He would continue physiotherapy.
On 31 May 2022, Dr Premawardhana recorded that the applicant had seen See Change Physiotherapy. It had been suggested that he remain on physiotherapy and light duties.
The applicant still had ankle and knee pain, and sometimes back pain as well. There had been initial improvement, which was slow, and there was recent worsening. The applicant was trying to lose weight. Given his lack of progression, he needed to continue physiotherapy. Dr Premawardhana also referred him to Dr Goudar.
Dr Premawardhana informed Dr Goudar that the applicant had been having right ankle and hip pain. He had been making some progress but had recently gotten worse. He had been doing physiotherapy.
Dr Premawardhana advised that he would arrange X-ray of the applicant’s right ankle and hip.
On 28 June 2022, Dr Premawardhana recorded that the applicant was “hurting really badly” when doing physiotherapy, so he stopped. He was on light duties and avoiding things that may cause more problems.
On 15 July 2022, Dr Himmat Moond recorded that the applicant had injured his right ankle again on 7 July 2022, when he twisted his ankle when working on a roof. This was an inversion injury.
The applicant had seen the physiotherapist and was using an ankle brace. He was walking with a limp. He was able to weight bear. Dr Moond requested X-ray and ultrasound, and “pain management discussed.”
On 18 July 2022, Dr Moond recorded that the applicant had issues regarding the moon boot. He should be using the boot until his X-ray and ultrasound came back normal, and he was reviewed by the orthopaedic surgeon.
On 25 July 2022, Dr Moond recorded that the applicant was still in significant pain. He did not take analgesia but was advised to take regular NSAIDS (non-steroidal anti-inflammatory drugs), which would also help with the inflammation.
On 22 August 2022, Dr Moond held a teleconsultation with the applicant. The applicant was using an ankle brace. He was to continue management as recommended by the orthopaedic surgeon.
On 19 September 2022, Dr Moond held a further teleconsultation with the applicant, who had injured his foot again at home. “As per Scott”, the specialist was happy for him to start driving. He had advised that the applicant could try hydrotherapy as well as the physiotherapy.
On 20 October 2022, Dr Moond recorded that the applicant had seen the physiotherapist but there was no report. The applicant was “still in remarkable pain.”
The respondent would not allow the applicant to work unless he was able to work for two full days, lift 10kg, and use a ladder. Dr Moond believed the applicant should be able to lift 10kg, but he was not confident using a ladder. Dr Moond was happy for him to try using it if he was able, “then continue if remarkable issue then can be reviewed again”. The applicant was “not happy that way”. Dr Moond noted that staying away from work would lead to more deconditioning.
On 24 October 2022, Dr Moond recorded having spoken to Dr Goudar.
Dr Goudar was happy for the applicant to trial using the ladder, as there was no rupture of the ligaments and tendons. However, the applicant was concerned, and so was his physiotherapist, “as per him.” Dr Moond was unable to contact the physiotherapist.
On 14 November 2022, Dr Moond recorded that the applicant had made some improvement. The issue was that he was unable to use the ladder and the workplace would not allow him to work until he could do so.
The physiotherapist, “Kate”, said the applicant had been making good progress. The applicant denied back issues currently. His balance was getting better, “as per Kate he is still not ready to be able to use ladder.”
On 1 December 2022, Dr Younas recorded that the applicant had been seen by an independent examiner. “Advised MRI lumbosacral spine + nerve conduction studies”.
Dr Younas made these referrals. A pain assessment was done, and the applicant was advised to start Tramadol.
On 10 January 2023, Dr Moond recorded “not much progress”. The applicant was awaiting nerve conduction studies for radiculopathy symptoms in his right leg. The applicant stated that it had been for a long time, but he had not mentioned it until recently.
On 2 February 2023, Dr Moond recorded a case conference. The diagnosis was neuropathic pain. There was no clear cause of the applicant’s symptoms. The nerve conduction study was normal. The MRI did not show any nerve compression. The applicant’s symptoms seemed to be more neuropathic, but investigation did not suggest that.
The applicant was seeing the exercise physiologist that day, and the physiotherapist soon. He was to trial Lyrica.
On 16 February 2023, Dr Moond recorded another case conference. Lyrica had helped the applicant up to 50%. The numbness had gone. The pain was mainly in the back, specifically in the paraspinal and right hamstring area. The applicant was to be reviewed by a pain specialist. “Back to work with limited activities – needs rehab.”
On 29 March 2023, Dr Moond recorded another case conference. The applicant had been doing aqua exercise and seeing a physiotherapist. His physiotherapist was moving, and
Dr Moond gave him a “couple of names”.
On 27 April 2023, Dr Moond recorded that the applicant was upset and disappointed with the care provided until now. He was not ending up anywhere. He would like a clear answer. He also had mental health issues.
The applicant had “been jumping from one issue to other”. He first stated that nothing was done for his ankle and hip injury, and then that nothing was done for the neuropathic pain. He had bad nerve pain two weeks ago but was not able to get an appointment. He was “back to baseline”.
The applicant had been waiting to see the pain specialist. He was disappointed with the rehabilitation provider, “that they are not doing anything.” He stated he would like to change doctor.
Dr Moond recorded the issues as low back pain radiating to the applicant’s right leg, the side of the thigh and sometimes in the leg, in the L5/S1 dermatome. The MRI showed no clear cause. The applicant had had nerve conduction study with no clear cause found. He was waiting to see the pain specialist in June.
Dr Moond had explained to the applicant that he did not have a clear cause of his pain, considering investigations were not supporting his symptoms. He could have a neurology review. Lyrica was not curing his symptoms, just making his symptoms better. He was happy to transfer the applicant’s file to another GP, or he could have another GP’s opinion.

Dr Anil Goudar – orthopaedic surgeon

Dr Goudar reported to Dr Premawardhana on 4 August 2022.
Dr Goudar opined that the MRI scan of the applicant’s right ankle and hindfoot confirmed multiple pathologies, mainly in the form of tendinosis.
Dr Goudar had provided the applicant with a request for physiotherapy for his right ankle. He had advised the applicant to start using an ankle brace, provided him with a request for orthosis, and requested approval for review by an orthotist.
On 16 December 2022, Dr Goudar reported that the applicant had been reviewed by a second foot and ankle surgeon, and “as per Scott the ankle is normal.”
Dr Goudar’s examination confirmed a well rehabilitated, stable ankle, with decreased sensation along the L4/L5 dermatome on the right lower limb.
Dr Goudar had provided the applicant with a request for MRI of his right ankle and hindfoot, to check for any further pathologies, as it had been approximately six months since his last MRI.
Dr Goudar opined that it seemed most likely that the applicant was dealing with radiating pain, with the most likely source being his spine. Even though the MRI recently performed confirmed minimal degenerative arthritis, there was marked facet joint arthritis, especially on the right side at L4/5. It would be wiser, if Dr Premawardhana felt it appropriate, to organise a spinal or neurological review for this.

Investigations

Dr Carolyn Keith – radiology report

On 12 December 2022, Dr Keith reported that MRI of the applicant’s lumbar spine showed facet arthropathy within the mid and lower lumbar spine, with no neural impingement.

Dr Derrick Soh – neurophysiologist

Dr Soh reported on 27 January 2023 that nerve conduction studies of the applicant’s ankle and lower leg showed no evidence of neuropathy or myopathic process.

Dr Damian Jiang – radiology report

On 7 December 2023, Dr Jiang reported that MRI of the applicant’s lumbar spine showed that the facet joints were normal. There was no canal or foraminal narrowing.

Dr Anthony Cadden – orthopaedic surgeon

Dr Cadden was qualified by EML and reported first on 5 January 2023.
Dr Cadden recorded a consistent history of the mechanism of injury. The applicant said he had experienced pain to the right ankle and lower back region into the right hip since the injury.
The applicant described a second incident on 22 July [2022] when he slipped while working on a roof. He described pain to the right ankle, with associated numbness. Following this injury, he was placed in a boot for about eight weeks, with no driving for about 12 weeks, and was off work during this time. After eight weeks, he started physiotherapy. He had issues of plantar fascia pain.
Since coming out of the boot, the applicant had had constant pain to the lateral side of the right ankle. The pain was made worse with activities, particularly when he tried to balance. He described numbness developing to the lateral side of the right foot. This could go up to the knee and lateral aspect of the right thigh.
Mr Westbrook described numbness to the right leg when sitting in a chair and could experience this numbness with driving. He described issues with balance on the right leg and had been instructed to continue using the brace.
Dr Cadden recorded a history of a mild back injury in the past, without an exact date. The applicant had been able to return to work after the injury in December 2021 but had been off work since the second injury on 22 July 2022.
The applicant had not had any hydrotherapy. There had been ongoing pain to the lateral right ankle and into the right leg since the second injury. The applicant continued physiotherapy for the right ankle and used an ankle brace. He did not describe being on any medication.
Dr Cadden recorded a history of persisting pain to the lateral side of the right ankle and numbness to the right leg, worse with sitting or driving. The applicant had tried to persist with physiotherapy, without resolution of his symptoms.
On examination, Dr Cadden recorded normal range of motion of the right ankle and hindfoot. There was mild weakness to right hindfoot eversion, when compared to the left. There was tenderness to the lateral side of the right ankle, more towards the tarsometatarsal joint.
There was mild sensory change to the lateral side of the applicant’s right lower leg along the L4/5 dermatomes, and mild tenderness in the lower lumbar region.
Dr Cadden opined that the two injuries had resulted in ongoing symptoms to the applicant’s right leg. It was from the second injury that the applicant had developed what would be consistent with radicular symptoms to the right leg, as well as injury to the right ankle. It was likely that the applicant’s persisting symptoms were related to lower lumbar spine pathology that had not been identified.
Dr Cadden diagnosed right ankle strain with ongoing radicular symptoms to the right leg, likely from lumbar pathology caused by the injuries to the right ankle.
Dr Cadden noted that the applicant had had no imaging of his lower back, other than an X-ray of his right hip, which showed no degenerative changes. The applicant was demonstrating radicular symptoms to the right leg, with symptomatic numbness when seated, mild sensory change on clinical examination to the L4 and L5 dermatome and positive neural tension sign on straight leg raise.
Dr Cadden opined that, given the applicant’s radicular symptoms, and the clinical signs on examination, Mr Westbrook needed to undergo further investigations of the lower back. This would consist of MRI scan and nerve conduction study, based on sensory changes to the lateral side of the lower leg.
Dr Cadden again reported on 3 January 2024.
The applicant described slow progress with his right leg. He was able to get back into physiotherapy, but still experienced pain and sensory changes into his right leg.
The applicant had undergone nerve conduction study of his right leg and imaging of the lower back and hip. Dr Ferris had prescribed medical cannabis and sought approval for radiofrequency blocks to the lower back, which was denied. The applicant said his physiotherapy was stopped after an IME (independent medical examination).
Dr Cadden recorded a history of persisting numbness to the lateral side of the right foot, present all the time, and starting from the buttock region. There was pain into the lateral side of the right ankle, with a feeling of instability and constant numbness. This often caused issues with sleeping.
The applicant was placed on Lyrica for three months. His activity was less, and he had issues with memory. He was sitting and eating more as a result of the medications. Lyrica made no difference to his symptoms. He was prescribed Duromine to assist with weight loss.
More recently, the applicant had had swelling to the right knee. He could not remember a specific traumatic event. This had resulted in him walking with a limp and a feeling of weakness to the right knee. There was often a sense of instability to the right knee when he was walking. He was using a knee support. There was ongoing numbness to the right buttock region.
The applicant had one session of physiotherapy to complete. He did exercise physiology once a week at the pool. He was seeing a psychologist every two weeks. He was on Talen and Duromine and took occasional Panadol.
The applicant had been working as a support worker since June 2023, working 12 hours a week over five days. He still struggled to work. He described numbness to the right buttock region, which could radiate down the right leg, and persisting pain and numbness to the lateral side of the right foot. He had pain in the right knee when coming down stairs and trying to get out of a chair.
Dr Cadden noted that since his last examination, the applicant had undergone further investigations that had not clearly identified the cause of his radicular symptoms. There was no disc bulge to the lower back with nerve compression, no piriformis syndrome, and no pathology to the ankle.
The applicant had been placed on Lyrica, without any improvement to his symptoms. At the time he was on Lyrica, he was less active and eating more, resulting in increased weight since his last review. He was on medication to help control his weight.
Dr Cadden opined that the applicant had developed symptoms of pain and swelling into the right knee, with no history of injury. His right knee was “causing ongoing grief”. Imaging had shown degenerative arthritis to the right knee and meniscal region. There was right leg radicular pain without a clear source of origin, resulting from the falls involving the right leg.
Dr Cadden further opined that, based on the history and examination, the applicant had suffered a sprain to the right ankle, where there was no clear pathology or clinical instability. Following the second fall, the applicant had experienced persisting nerve symptoms running from his buttock into the lateral right ankle region.
The applicant had persisting pain to the lateral right ankle and the buttock region, which Dr Cadden opined would be consistent with a radicular pain in the absence of nerve compression. In the absence of a compressive lesion, it was likely that the applicant had developed a chronic pain type syndrome to the right leg.
Dr Cadden opined that the applicant did not demonstrate exaggeration of symptoms; conscious guarding/restriction of movement; symptoms and findings inconsistent with the claimed medical conditions; or a range of movement during informal observations that was not consistent with clinical examination.
Dr Cadden reported that, based on the recent MRI scans of the applicant’s right hip and right ankle, there was no pathology evidence to those regions to be acting as an ongoing source of the pain. The only reasonable diagnosis for the applicant’s ongoing symptoms would be a chronic pain developing to the right leg as a result of the injury. The most recent MRI of the right knee, where the applicant was getting symptoms, showed evidence of previous changes to the knee, which were non-work related.
The only treatment recommended by Dr Cadden was a pain management program for the applicant’s right leg.
Dr Cadden noted that the applicant was placed on Lyrica for three months, in an effort to control the nerve pain, but it made no difference to his symptoms. The combination of decreased activity and increased food intake whilst on the medication on the balance of probabilities had likely resulted in weight gain. The weight loss medication that had been prescribed was reasonably necessary to help the applicant control his weight. This was likely to be of benefit to the pain in his right leg.
Dr Cadden did not consider there were inconsistencies between the applicant’s reported symptoms and the level of incapacity. The “confounding factor” was the lack of pathology present to the lower back, right hip, and right ankle to correlate to the ongoing symptoms in the right leg.
Dr Cadden opined that a pain type syndrome was likely the cause of the applicant’s ongoing symptoms. This gave the apparent view of inconsistency between the reported symptoms, level of incapacity, and the objectively identified lack of pathology to the right back, hip, and ankle.

Dr Yves Brandenburger – (probably a GP)

Dr Brandenburger, from whom the applicant sought a second opinion, reported to EML on 29 April 2023.
Dr Brandenburger’s “understanding” was that the applicant had been suffering intermittent lower and thoracic back pains since December 2021. The applicant believed this had been the result of repetitive heavy lifting and intensive labour at work. He had been increasingly frustrated, describing himself as very active in the past, being a rugby player and loving golf.
Dr Brandenburger opined that the applicant’s pain appeared to be neuropathic and followed a similar pattern than [sic] a radiculopathy. The main issue was a loss of sensation to the right posterior thigh and shooting pains, worse to the right lower back, and back of the leg down to the right foot.
The applicant was apprehensive and did not cope with bouts of pain, which were exacerbated with activity.
The applicant had had multiple investigations to confirm the nature of the neuropathic pain. However, a nerve conduction study, MRI of the lumbar spine, and X-ray of the right hip showed no significant abnormality and no signs of sciatic nerve impingement.
In spite of the normal results, the applicant may still be suffering from sciatica resulting from muscle spasms and a general lack of strength of his paraspinal muscles. Dr Brandenburger opined that the other possibility was that the pain may have resulted from a different mechanism, which would be difficult to confirm through usual investigations.
The applicant had significant low mood as a result of his pain and situation. This had led to deconditioning.
The applicant had seen a psychiatrist, talked to a psychologist, and saw a physiotherapist, with minimal benefits. He had an appointment with a chronic pain specialist. He had recently been told that he should go back to work for three days (half days each).
The applicant “reluctantly” took pregabalin and citalopram, with some benefit for his pain. He believed the medication made him put on weight. It was suggested that he should change jobs, but he was afraid that no training and/or help would be available and did not like the idea.
Dr Brandenburger summarised his recommendations as:
(a)    review by an independent neurologist alongside the planned pain specialist, to attempt to determine the cause of pain and target therapies;
(b)    gym membership, exercise physiologist;
(c)    ongoing psychology;
(d)    “+/-” dietary advices, and
(e)    gradual return to work with frequent reviews.
On 20 July 2023, Dr Brandenburger advised that a trial of Duromine may benefit the applicant for the weight loss and current rehabilitation plan.
Dr Brandenburger reported to EML on 17 August 2023 that the applicant had lost more than 4kg in a month with Duromine. The applicant’s weight was 120kg and they were aiming for 90kg.
The Duromine cost $100 per month. Dr Brandenburger did not know what the applicant’s weight had been before and after the Lyrica.
Dr Brandenburger strongly recommended that the treatment continue. A significant weight loss would ultimately lead to decreased pain and early recovery.
On 12 October 2023, Dr Brandenburger reported that the applicant had recently seen the neurologist. Dr Brandenburger “believe[d]” the neurologist confirmed the diagnosis of sciatica and recommended aqua-aerobic, which Dr Brandenburger thought may be beneficial.
Dr Brandenburger and the applicant had talked about Mr Westbrook “obviously” getting fitter. He recommended that the applicant continue with Duromine, as it had efficiently improved his oral intake. He had lost more than 5kg in three months.

Dr Paul E Ferris – pain medicine consultant/anaesthetist

Dr Ferris reported to Dr Brandenburger on 7 June 2023.
Dr Ferris recorded that the applicant had chronic multisite pain following work-related injuries associated with degenerative joint disease, on a background of anxiety and depression.
The applicant had had work related injuries including episodes in 2001, mid 2021, late 2021, and July 2022, nearly falling off a ladder and twisting his foot whilst walking on a roof.
The applicant’s ankle injury had been treated with physiotherapy, a moon boot, hydrotherapy, and psychotherapy. He had previously trialled endone, tramadol, and possibly other analgesics. Lyrica was of no benefit and caused cognitive dysfunction and weight gain. The applicant also took cipramil and Mobic.
The applicant had had ankle MRI, showing tendinitis and plantar fasciitis. Lumbar spine MRI showed facet joint arthropathy and no nerve root impingement. Nerve conduction studies showed no significant abnormalities.
Dr Goudar had recommended the moon boot, no driving, hydrotherapy, and physiotherapy. No surgery was offered.
Dr Ferris recorded a complaint of pain in the right lower lumbosacral region, referred to the buttock and down the right leg, associated with numbness of the right leg, going to 10/10 for half an hour to an hour, two or three times a day.
The applicant’s pain was exacerbated when lying in bed, flexing his knee, and rising from kneeling. It was relieved by stretching, sitting, standing, and paracetamol. The applicant complained of difficulty wiping his “backside” and dressing. His sleep was disturbed by pain. He was able to do some cooking, drive for half an hour, “with the snipping” [sic: assumed to mean whipper snipping] and mow the lawn. His mother did the vacuuming and hung out the washing. He shopped in light loads.
The applicant had been off work since July. He had been told by his GP not to return to his previous work. It had been suggested that he work as a medical carer or support worker two days a week, two hour days.
The applicant suffered from anxiety and depression. He took cipramil and saw a psychologist every two weeks. He was unhappy with his insurance company and previous GP. He denied suicidal thoughts. He admitted to catastrophising thoughts and fear avoidance behaviour. He believed his pain was due to “something pinched”.
Dr Ferris recorded that on examination the applicant was obese. He had a normal gait and was able to stand on his heels and toes. He complained of exacerbation of pain with lumbar spine movement, thoracic spine rotation, and cervical spine movement.
The applicant had reduced range of motion of his lumbar spine. He had apparent reduced power in his right ankle in flexion and extension. Slump test exacerbated his low back pain. He was tender over his right hip greater trochanter and buttock. He had normal vibration, temperature, and light touch sensation of his right foot.
Dr Ferris had provided the applicant with some education regarding the nature of chronic pain, and the fact that exacerbation of pain with activity did not indicate further damage to his body.
The applicant was encouraged to engage in a graded active exercise program, which could include increased frequency and duration of walking, or hydrotherapy. Dr Ferris also encouraged the applicant to maintain social activities and consider returning to work on a part-time light duties basis.
Dr Ferris had discussed with the applicant the association of chronic pain with anxiety and depression, and how optimising management of his mental health would help reduce his pain and suffering.
Dr Ferris encouraged the applicant to continue with psychotherapy and cipramil. The applicant did not feel the need for additional pharmacotherapy or psychotherapy. Dr Ferris suggested the applicant reduce and then cease pregabalin. He provided prescriptions for pregabalin, meloxicam, and citalopram.
Dr Ferris referred the applicant for right buttock MRI to exclude piriformis syndrome. The applicant was awaiting nerve conduction studies, Dr Ferris would request approval for the MRI and the online pain program “This Way Up”.
On 12 July 2023, Dr Ferris requested that EML approve radiofrequency neurotomy right L4/5 and L5/S1 facet joints, and medicinal cannabis therapy.
Dr Ferris reported to Dr Brandenburger on 12 July 2023.
The MRI of the applicant’s pelvis showed no signs of piriformis syndrome. There were signs of chronic osteitis pubis, although the applicant did not have pain in that area.
The applicant was off Lyrica and managing his pain with meloxicam when required.
Dr Ferris noted the proposed treatment for which he had requested approval. The applicant may also benefit from pulsed radiofrequency to the right ankle, right hip trochanteric bursa, and right L5 nerve root.
The applicant was requesting a trial of medicinal cannabis therapy and Dr Ferris had provided him with a prescription.
Dr Ferris reported to EML on 10 August 2023. He was responding to questions that are not in evidence. He repeated the contents of his previous report.
The applicant’s diagnosis for his lumbar spine was lumbar facet joint arthropathy. Dr Ferris opined that this likely related to the applicant’s altered gait associated with his ankle and hip injuries on 16 December 2021.
Dr Ferris opined that “the procedure” was expected to reduce the applicant’s pain. It was not going to reverse his facet joint arthropathy. The degree of alleviation of his symptoms was difficult to predict. In some cases, the pain was completely relieved, and analgesia could cease. The applicant had problems in other parts of his body that may restrict return to pre-injury activities and duties.
At that stage, Dr Ferris did not recommend any alternative treatments. All other alternative treatments and procedures had been trialled, either without adequate benefit or with adverse effects.
The benefits from the procedure could take two to three weeks. The applicant had been off work for over 12 months and had been told by his GP not to return to his previous work.
Dr Ferris advised that the goal of medicinal cannabis therapy was to reduce pain scores, reduce analgesia requirements, and improve sleep, function, and mental health.
Medicinal cannabis would be continued for the duration of the applicant’s chronic pain, as long as there were no adverse effects.
The applicant suffered from chronic non cancer pain (CNCP). Dr Ferris referred to a study of treatment of people with such conditions, while noting that the evidence was not limited to that study.
Other treatments the applicant had trialled included physiotherapy, a moon boot, hydrotherapy, psychotherapy, endone, tramadol, Lyrica, cipramil, meloxicam, and other analgesics he could not recall. All avenues of physical and medical treatment had been exhausted.

Dr Ferris again reported to EML on 30 October 2023.
Dr Ferris disagreed with Dr Gorman regarding no significant effect either neurologically or musculoskeletal in the applicant’s lumbar spine and right ankle.
The applicant complained of exacerbation of pain with lumbar spine movement in all directions, thoracic spine rotation, and cervical spine movement in all directions. He had reduced range of motion of the lumbar spine. He had apparent reduced power in his right ankle flexion and extension.
Dr Ferris agreed with Dr Gorman that obesity may be contributing to the applicant’s condition. “Would EML consider funding weight loss reduction [sic] treatment?”
Dr Ferris opined that the applicant’s low back pain was related to facet joint arthropathy as shown on his lumbar spine MRI. His ankle MRI showed tendinitis and plantar fasciitis.
Dr Ferris further opined that the applicant should be reviewed after three months of physiotherapy, exercise physiology, and psychology, to determine if he was ready to transition to self-management. He should be assessed as his hours were increased, to determine if he was up to full-time hours.

Dr David Gorman – consultant physician in general medicine, medical oncology, pain medicine specialist

Dr Gorman was qualified by the respondent and reported first on 18 October 2023.
Dr Gorman recorded a consistent history of two injuries. He noted that the applicant was placed in a moon boot for eight weeks after the second injury. The applicant had had pain over the lateral right ankle.
Dr Gorman referred to Dr Ferris’s report dated 7 June 2023. Dr Ferris had noted that a lumbar spine MRI showed facet arthropathy and nerve conduction studies showed no significant abnormalities.
The applicant was working for 10 to 12 hours per week as a support care worker, mainly involving driving aged people. He had discomfort getting in and out of the car.
The applicant had had physiotherapy, exercise physiology and medication. His current treatment consisted of physiotherapy twice a week; exercise physiology; attending a heated pool in a gym; and seeing a psychologist every two weeks.
Dr Ferris had suggested medicinal cannabis and radiofrequency lesioning to the medial branches to facet joints in the lumbar spine. The applicant was to see a neurologist next month.
Dr Gorman recorded that the applicant took an anti-depressant, Duromine (having put on 26kg while he was on Lyrica), Nurofen, Mobic, and paracetamol.
The applicant had not started medicinal cannabis. He planned only to use the product containing THC (tetrahydrocannabinol) at the weekends, so that he could drive legally during the week.
The applicant reported pain and tenderness over the right loin, down to the lower lumbar spine and also across the right groin. He had numbness and often a “dead” right leg. The numbness extended around the right hip and down to the foot. The applicant sometimes had trouble standing on his right leg. Some exercises could cause his whole leg to go numb.
The applicant was not good psychologically because he could not do many things. He could not play golf, had trouble walking long distances, and could not carry groceries.
The applicant’s walking tolerance was no more than 10 minutes. He had trouble sleeping because of right leg and foot pain.
Dr Gorman recorded that the applicant weighed 121.6kg, and the applicant reported that he weighed 100kg before the surgery. He got up to 126kg while on Lyrica.
On examination, Dr Gorman recorded that the applicant had normal power in the lower limbs. The applicant reported that light touch was greater on his right leg. Dr Gorman reported that there was no “numbness”. However, there was no allodynia. (Given the use of the word “however”, he may have meant there was allodynia).
Dr Gorman noted that the applicant was able to put weight on his right foot when he put on his left shoe. With encouragement, there was equal and normal range of motion in his ankles. Movement of his lumbar spine was restricted to three quarters of normal range of motion in all planes. There was no tenderness over the lumbar spine or hips.
Dr Gorman noted that MRI of the applicant’s lumbar spine dated 8 December 2022 showed facet arthropathy within the mid and lower lumbar spine, with no neural impingement. He also noted the nerve conduction findings.
Dr Gorman opined that the applicant did not have any firm neurological changes in the lower limbs. He was able to move easily and walked without a limp. He was able to put weight on his right leg. Dr Gorman believed that the injury had resolved.
Dr Gorman diagnosed widespread symptoms in the applicant’s right lower limb and low back, with inconsistent examination – normal objective neurological examination. He opined that his examination was consistent with his conclusion that there were no significant effects either neurologically or musculoskeletally in the lumbar spine or right ankle.
Dr Gorman noted Dr Cadden’s report dated 5 January 2023, and that Dr Cadden felt the applicant may have lumbar spine pathology that had not been identified. Dr Gorman did not believe the facet arthropathy in the mid and lower lumbar spine, with no neural impingement, shown on the MRI, explained the applicant’s lower limb symptoms.
Dr Gorman opined that there was no doubt that the applicant’s obesity contributed to the discomfort in his lumbar spine and right leg. There were no other factors.
The applicant’s treatment had been appropriate, with a focus on increasing physical activity, with physiotherapy and hydrotherapy. It had been appropriate that Mr Westbrook see a psychologist regularly.
Dr Gorman opined that the proposed medicinal cannabis treatment was not appropriate. This was a weak analgesic, particularly if not containing THC. The Faculty of Pain Medicine did not support the use of medicinal cannabis for chronic pain. Its use was likely to increase the applicant’s appetite and worsen his obesity.
Medicinal cannabis would stop the applicant driving legally. He aimed to take it only at weekends. This confirmed there was little need for it, if he only needed it while he was resting at weekends. It is an addictive compound, and it would not be wise to commence it, as it would be difficult to cease.
Dr Gorman was asked whether there were available and more effective alternatives. He opined that the effects of the work incidents had essentially resolved. The applicant was moving and walking normally. He had widespread symptoms that were likely related to hypervigilance. These were best treated by gradually increasing his activity, particularly as he was working.
Dr Gorman opined that the applicant should gradually convert to a self-directed home exercise program, which he could do over the next two to three months, with the help of his physiotherapist and exercise physiologist. He could also complete a further two to three months with his psychologist, to prepare him for self-management of his pain.
Dr Gorman opined that medicinal cannabis is expensive and ineffective. The other treatments are effective. The treatment would relieve the applicant’s symptoms by sedating him. It would not treat pain, as outlined in the Faculty of Pain Medicine’s position statement.
While medicinal cannabis was used for chronic pain, and the TGA (Therapeutic Goods Administration) mentioned chronic pain as being an indication, it was not accepted by the premier body of pain specialists, the Faculty of Pain Medicine.
Dr Gorman was asked if the proposed radiofrequency neurotomy was “reasonably and necessary” [sic] for the applicant’s condition.
Dr Gorman noted that the applicant had referred symptoms to the whole of his right leg. However, there was no indication that the facet joints were the source of this ongoing pain. There was “certainly” no nerve root compression explaining the applicant’s widespread symptoms, and they were more widespread than they would be from referral merely from L4/5 and L5/S1.
Dr Gorman believed the applicant’s symptoms were more likely related to persisting “central sensitisation”. The way to treat this was to maintain an active exercise program, and a gradual increase in work, rather than by invasive procedures or treatment focused on the limb itself.
Dr Gorman opined that the applicant’s condition would resolve. There were no significant musculoskeletal or neurological injuries that would cause persistent impairment. The applicant’s gait was now normal, so ongoing back symptoms were unrelated to either injury.
Dr Gorman provided a supplementary report on 5 July 2024. He had been provided with, among other documents, the MRI scan report of Dr Jiang dated 7 December 2023.
Dr Gorman noted that it was reported that the MRI showed no loss of height or signal in the discs. The facet joints were normal. There was no canal or foraminal narrowing.
Dr Gorman further noted confirmation of Dr Cadden’s opinion that there was no evidence of nerve root compression. On “this scan” (the MRI), there was also no evidence of any significant facet joint arthropathy.
The applicant’s right knee showed significant degenerative change, with loss of cartilage over the medial femoral condyle, moderate thinning, and early full thickness loss from the medial plateau, with complex tearing of the medial meniscus. The applicant’s right ankle and lumbar spine were described as having “no significant abnormality”.
Dr Gorman opined that “clearly”, on these examinations, the applicant’s major problem was osteoarthritis in the right knee.
Dr Gorman disagreed with the opinion of Dr Yuk Kai Lee, who was qualified by the applicant, regarding the proposed radiofrequency neurotomy. The applicant’s symptoms were widespread, and not only related to the lumbar spine. The MRI did not show significant facet arthropathy. Dr Gorman did not believe that the proposed treatment was appropriate in this circumstance.
Dr Gorman had also reviewed the report of Dr Mark Hardy, who was qualified by the applicant. He maintained his previous opinion regarding appropriate treatment.
Dr Gorman disagreed that medicinal cannabis should be commenced, repeating his reasons.
The results of the MRI confirmed Dr Gorman’s previous impression of lack of organic physical causes for the applicant’s low back pain. The applicant’s leg pain was “clearly” much more related to osteoarthritis in his knee. Having seen the results of the MRI, Dr Gorman opined that this was likely a constitutional problem, which may have been aggravated for a period by the applicant’s work injuries. The applicant’s ongoing pain was more related to his underlying osteoarthritis.
Dr Gorman opined that diagnostic medial branch blocks (facet joint blocks) could be performed, but he saw little reason for this. The applicant’s pain was widespread. The MRI did not show any significant facet arthrosis and in the absence of a “placebo” injection, it would be impossible to tell the benefits of injections at each of the multiple sites in the applicant’s lumbar spine.
The applicant had had extensive investigations and treatments, and Dr Gorman did not feel that further investigations would assist.
Dr Gorman reiterated his treatment recommendations. He believed that it was important that the applicant continue to work and gradually increase his hours.
Dr Gorman’s report attached a media release from the Australian and New Zealand College of Anaesthetists and the Faculty of Pain Medicine (ANZCA FPM), dated 18 October 2023, which referred to doctors being urged not to prescribe medicinal cannabis for patients with CNCP unless the treatment was part of a registered clinical trial.
Dr Gorman also attached a statement on medicinal cannabis from ANZCA FPM that appears to have been issued in 2018 or 2019.
The document referred to TGA guidance issued in December 2017. They included that any treating physician who initiated cannabinoid therapy for the treatment of CNCP should assess response to treatment, effectiveness, and adverse effects.

Dr Mark Hardy – addiction medicine, dual diagnosis, and acquired brain injury specialist

Dr Hardy reported on 16 February 2024. He has included references in his report where appropriate.
Dr Hardy recorded a consistent history of the injury. The applicant soon felt pain in his right hip, with numbness and tingling down his right leg. He was referred for scans and physiotherapy. He did not find conservative treatment of much benefit.
The applicant had been given Mobic, tramadol, and pregabalin (which had been ceased), as well as Escitalopram. He had physiotherapy once a week from its commencement in January or February 2022.
The applicant’s injury was exacerbated by a fall in July 2022. He was put in a moon boot for 10 weeks. He had persistent pain and paraesthesia of his right leg. This caused a change in his gait, which did not remit.
Dr Hardy referred to the applicant’s investigations, including MRI of the lumbar spine on 8 December 2022, which demonstrated facet arthropathy from L3/4 to L5/S1. There was no evidence of degenerative disc disease or herniation, canal stenosis or foraminal narrowing. There was no neural impingement seen on MRI.
The applicant’s current medications were Duromine, Escitalopram, Vitamin B, and Panadol. He had been tried on meloxicam, which had been ceased. He had continued with psychotherapy and had trialled hydrotherapy and exercise physiology. He had had regular physiotherapy and remedial massage.
Dr Hardy recorded that the applicant’s pain at worst was 8/10 or 9/10, peaking at 10/10 on bad days. At best, it was 4/10 to 5/10. The applicant usually slept for four to five hours, with the maximum six to seven hours.
The applicant’s symptoms were pain in the right hip, knee and ankle, nociceptive and neuropathic in nature. He was unable to run. He had had a change in his gait. He had chronic low mood and mild to moderate social withdrawal.
The examination was conducted by Telehealth. Dr Hardy conducted a mental state examination to ensure that medicinal cannabis was not contraindicated on a psychiatric basis.
The applicant described his mood as good, and his affect was reactive. He displayed good insight. Dr Hardy found no evidence of psychosis or thoughts of harm to the applicant himself or others.
Dr Hardy diagnosed right ankle injury, sciatica to the right side, and L3/4, L4/5 and L5/S1 facet arthropathy.
Dr Hardy noted that the applicant’s treatment had included a mixture of conditioning, medication, psychological therapies, and physical therapy. The next course of treatment would therefore be fourth line treatment. The proposed treatment included radiofrequency neurotomy and a trial of medicinal cannabis.
Dr Hardy opined that there were several treatment options that were worthy of consideration, including a multi-disciplinary pain management program; anti-epileptics (such as Gabapentin); antidepressants; opioids; medicinal cannabis; physical therapy; psychological therapy; interventional pain techniques (noting that radiofrequency ablation had been offered); and surgery (for which there was currently no indication).
Dr Hardy reported that the cost of a trial of medicinal cannabis, annualised, would amount to $4,450 in the first year, falling to $1,000 in subsequent years, if stabilised. Treatment may be long-term or lifelong.
The applicant had been offered radiofrequency ablation. Dr Hardy opined that facet joint injections and spinal cord stimulators could be considered. The costs ranged from $1,000 to $2,000 for radiographically guided injections and ablations, to $20,000 to $30,000 for insertion of a stimulator.
Dr Hardy opined that the proposed medicinal cannabis treatment, in the applicant’s case, was indicated in CNCP. The need for it was directly related to the injury.
Alternatives: Most available and potentially helpful alternatives had been tried, or earnestly considered, without success or unacceptable side effects. Medicinal cannabis was likely to be more readily available and had reasonable potential to benefit the applicant. It met the criterion for reasonable necessity.
Appropriateness: Dr Hardy acknowledged that medicinal cannabis was not suitable for every client with a similar injury, but its use was within the range of helpful treatments in this case. Mr Westbrook had had an unsuccessful trial of other traditional treatments. In line with TGA guidelines for CNCP, he met the criteria for a trial of medicinal cannabis. The treatment met the criteria of reasonable necessity.
While a trial of medicinal cannabis was a new treatment for chronic pain, and may not be absolutely necessary, it may be extremely helpful. Dr Hardy opined that it should be borne in mind that alternative treatments had been trialled without success in arresting the applicant’s pain. None was absolutely necessary, apart from those in order to save life or limb. (Emphasis in original).
Effectiveness and benefits: other evidence-based treatments were trialled. However, the applicant was left with unresolved chronic pain and loss of functional capacity. Evidence of success with medicinal cannabis for CNCP had been published in randomised control trials and systemic literature reviews and meta-analyses. The articles had reproducibly demonstrated a decrease in pain score of 30% to 50%, as they had seen in the patient’s cannabis trial.
Dr Hardy opined that the evidence was robust and carried sufficient weight to support it. A trial of medicinal cannabis was not an unreasonable next step in treatment. While side effects were a potential concern with any treatment, those of the proposed treatment had been found to be minor in previous research.
Cost benefit: the cost of the treatment was approximately $300 to $600 per month. The cost of other pain medicine and/or surgery was considerably more expensive. They offered no guarantee of long-term success. They may exacerbate the applicant’s disability.
The cost of anti-neuropathic medicine, anti-inflammatory drugs, and strong opioid analgesics was comparable. They had their own side effects, including cognitive impairment, weight gain, addiction/depression, and suicide.
Acceptance: the treatment had been accepted by medical experts across a broad range of disciplines. Whilst various bodies, including the Faculty of Pain Medicine, RACP, had published opposition statements, many pain specialists, physicians, psychiatrists, and GPs prescribed medicinal cannabis. Over 295,000 prescriptions were written between 2020 and 2022. It had been estimated that over 1,700 doctors prescribed medicinal cannabis in Australia.

Dr Yuk Kai Lee - orthopaedic surgeon

Dr Lee reported on 20 March 2024.
Dr Lee recorded a consistent history of the injury. He noted that the applicant used a moon boot “for a couple of months”, which affected his back. The applicant had pain in his back but could not remember when it started. The pain radiated down his right leg. He also had pain in his right knee.
The applicant had had physiotherapy, remedial massage, and pain killers. He saw a neurosurgeon, who referred him to a pain specialist. He was recommended radiofrequency neurotomy and CBD oil, but it was not approved. He did not have a cortisone injection. He took Lyrica, which caused weight gain, and did not like the treatment.
The applicant complained of pain in the right leg going up the back of his hip. His lower back was painful, aggravated by coughing.
Dr Lee recorded tenderness at the right side of the L/S junction. The applicant could reach just below his knees on flexion. He could not lift and straighten his right leg while sitting, as he could with his left.
Dr Lee referred to the MRI report dated 12 December 2022, which stated there was facet arthritis in the mid and lower spine.
Dr Lee opined that the applicant should continue with conservative treatment. He should continue with physiotherapy. Dr Lee did not recommend surgery. On the balance of probabilities, the radiofrequency neurotomy recommended by Dr Ferris was reasonably necessary as a result of the injury. The applicant’s symptoms were in the facet joints and the procedure could help relieve the pain coming from the joint.

SUBMISSIONS

The parties’ submissions have been recorded. I will summarise the main points.

Applicant

The applicant submitted that he had had ongoing pain for a period of 3.5 years. It was accepted that he had a pain disorder. He had trialled much of the treatment suggested by the respondent.
The applicant conceded that the nerve conduction studies did not identify a lesion that caused his symptoms. It was not the case that because the scans did not show anything, there was nothing wrong. It was the applicant’s case that he was in pain every day. The treatment that had been recommended was to treat that pain.
The applicant referred to Dr Goudar’s evidence that there was a dermatomal decreased loss of sensation at L4/5 on the right lower limb. He submitted that was a clear indication of something causing the radiculopathy. Unfortunately, it was not identified on the scans.
The applicant submitted that it is apparent from Dr Goudar’s report that he reviewed the MRI film himself. He submitted that marked arthritis does not instantaneously reverse itself. The reports did not show clearly what was on the scans.
The applicant submitted that Dr Ferris was well qualified to provide an opinion as to the cause of the pain and the treatment for pain. He had been given all the relevant information, including the scans and the lack of findings in some scans, and still recommended the treatment. Dr Ferris agreed with Dr Gorman that obesity may be contributing to the applicant’s condition. The applicant submitted there can be multiple causes of either a condition or the need for treatment.
The applicant submitted that, unless someone had actually seen the second MRI scan itself, the report on the scan should be taken with “a grain of salt”.
The applicant relied also on the evidence of Dr Hardy as to the reasonable necessity of the treatment. He submitted he had been left with unresolved chronic pain and loss of functional capacity, and the pain had to be treated.
The applicant submitted that Dr Lee agreed with Dr Ferris that the radiofrequency neurotomy was reasonably necessary treatment.
The applicant referred to Dr Cadden’s second report, and his opinion that it was likely that the applicant had developed a chronic pain type syndrome in his right leg.
The applicant submitted that Dr Gorman’s opinion that his condition had resolved was inconsistent with that of the other doctors, including Dr Cadden.
The applicant submitted that if I found that he had chronic pain syndrome and there was facet arthropathy, as identified by Dr Ferris on the original MRI, and by the treating orthopaedic surgeon, it was easy to accept that on the balance of probabilities the injury had made a material contribution to the need for treatment.
The applicant referred to the “Diab test”,[1] which he submitted was satisfied. When those factors were weighed up, I would lean more to the reasonable necessity of the treatment than not. The injury had made a material difference to the need for the treatment. Hence it was reasonably necessary as a result of the injury.
[1] Diab v NRMA Ltd [2014] NSWWCCPD 72.
The applicant referred to the decision of Acting President Roche, as he then was, in Tray Fit Pty Ltd v Cairney.[2] He submitted that there was nothing other than radiofrequency ablation that had been recommended to target the referred pain down his leg. It might not be optimal, but it was in the range.
[2] [2015] NSWWCCPD 2 at [60].
In reply to the respondent, the applicant submitted that, in regard to his weight, injury to the lumbar spine was accepted. Injury to the ankle was accepted. All he needed to prove was that there was a material contribution from the injury to the need for surgery [sic].
The applicant submitted that it was not clear that he requested medicinal marijuana. Even if he did request it, Dr Ferris did not “dole it out” to people who requested it. The only thing that was relevant was that the doctor, a pain management specialist, was prescribing a pain treatment that was accepted by a large proportion of the medical fraternity.
The applicant referred to the respondent’s submission that Dr Ferris had changed his opinion. He submitted that liability for the proposed treatment had been declined. Dr Ferris had no option but to prescribe other things that he said had already been tried.
The applicant referred to Dr Cadden’s evidence that he had a chronic pain syndrome, and submitted there was a pain specialist prescribing treatment for that syndrome. There was clear cause and effect on the respondent’s own evidence.
The applicant submitted that it defied logic, common sense, and the experience of the specialist tribunal that he had a spontaneous disappearance of degenerative change in his lumbar spine. It does not disappear, but if anything gets worse. The change was identified in 2022, supported by the orthopaedic surgeon seeing the films with his own eyes.

Respondent

The respondent submitted that what was relevant was what was going on, and to what was the treatment directed? What was the proximate cause for the treatment?
The respondent submitted that we need to identify precisely the cause of the applicant’s problems, and then make a decision as to the future treatment requirements.
The respondent submitted that the applicant’s weight had contributed to his symptomatology, and that had been present for some time.
The respondent submitted that it was highly relevant that there was no evidence from a spinal surgeon. A spinal surgeon would be well placed to provide an opinion. There was also no evidence from a neurosurgeon. There was a nerve conduction study that was entirely normal. The respondent referred to the GP’s records. The GP did not know what was going on.
The respondent submitted that there was “a whole raft” of other investigations and treatment that was available before this level of treatment should be engaged with. It referred to Dr Brandenburger’s evidence.
The respondent submitted that the suggestion of medicinal cannabis came initially from the applicant, and not from Dr Ferris. The idea that radiofrequency neurotomy would resolve the applicant’s symptoms did not sit with the requirement for ongoing use of medicinal cannabis.
The respondent submitted that it was not the case that everything else had been tried and had failed. Even the applicant’s medicolegal doctors highlighted the variety of treatment options that could be implemented. That was a significant issue for Dr Ferris and the applicant in this case.
The respondent submitted that the applicant’s weight had been put forward as significant, and weight reduction as likely to lead to decreased pain and allow for recovery.
The respondent referred to Dr Ferris’s second report and his recommendations. The applicant was back at work, and Dr Ferris recommended continuing the other treatments. Dr Ferris had not commented on the second MRI scan. The “gaps” in the evidence were not for the respondent to fill.
The respondent submitted that the suggestion that the second MRI scan should be put to one side because no one had sent it to the doctor for comment or obtained a report was not good enough. It should not be awarded any different weight.
The respondent submitted that I could not be satisfied that the proposed treatment was reasonably necessary before we get to the medicolegal material.
The respondent submitted that, even if it were accepted that the radiofrequency neurotomy was reasonable, it would not be the case that the medicinal cannabis treatment was also reasonably necessary, as they were both directed at the same outcome.
The respondent submitted that Dr Hardy had not been provided with the most recent MRI scan. He was premising the requirement for treatment of the lumbar spine on the basis of pathology that was said to exist in 2022 without the benefit of the December 2023 scan. Dr Hardy had referred to a raft of alternative treatments that were seemingly consistent with what Dr Ferris said.
The respondent submitted that there was “not a whole lot” to grapple with in terms of how Dr Lee expressed his opinion.
The respondent submitted that Dr Cadden, in his first report, suggested investigations, which was consistent with what Dr Goudar had said at about the same time.
The respondent submitted that even Dr Ferris seemed to have stepped back from his initial view. Dr Gorman’s suggestions regarding treatment were “on all fours” with what Dr Ferris said in his latest report. It submitted I should give weight to the view of the professional body regarding medicinal cannabis.
The respondent submitted that Dr Gorman did not disregard medicinal cannabis but said there were alternatives to consider. Dr Gorman had the benefit of the second MRI scan and was the only one who did.
The respondent submitted that it was relevant that there was a raft of alternative treatment. The applicant seems to have suggested medicinal cannabis, in circumstances where it is said to be addictive and to lead to weight gain. It was said to prevent driving, which was directly relevant to the applicant’s reintegration into the workforce.
The respondent accepted that the case law establishes that there can be a multitude of treatment options, but submitted I had to deal with the circumstances of this case and balance it together to determine if something is reasonably necessary. It submitted I could not do this here.

SUMMARY

The applicant seeks orders that the respondent meet the costs of a trial of Spectrum Red Cannabis Oil and radiofrequency neurotomy.
The respondent has submitted that it could not be accepted that both treatments were reasonable, as they would both be directed at the same outcome.
I do not accept that submission. The applicant is not limited to one or more forms of treatment that are directed at the same outcome. The evidence is that he has undergone various forms of treatment, some of which took place at the same time. Indeed, Dr Gorman recommended more than one form of treatment, as did Drs Ferris and Hardy. The respondent also submitted that there was a raft of alternative treatment available, which does not suggest that the applicant should be limited to only one form of treatment.
As regards the applicant’s weight, it may be accepted that he is overweight, and has attempted to lose weight. It may be beneficial to him for many reasons if he were able to reduce his weight. However, that is not likely to be achieved in the short term, and in the meantime, there is treatment that is available to him.
As the applicant submitted, the injury he has sustained need only make a material contribution to the necessity for treatment. The work injury does not have to be the only, or even a substantial, cause of the need for treatment before its cost is recoverable under s 60 of the 1987 Act.[3]
[3] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.

Radiofrequency neurotomy

I will deal first with the issue of the differing MRI reports dated 12 December 2022 and 7 December 2023, evidence on which the respondent placed considerable reliance.
Dr Keith’s MRI report dated 12 December 2022 stated there was facet arthropathy within the applicant’s mid and lower lumbar spine, with no neural impingement.
The applicant submitted that Dr Goudar reviewed the MRI scan itself, rather than relying solely on Dr Keith’s report. It is probable that that is the case, although Dr Goudar did not confirm that in his report.
Dr Goudar did opine, however, that the applicant had minimal degenerative arthritis, whereas the MRI report stated that Mr Westbrook had no degenerative disc disease. The report also referred to mild bilateral facet arthropathy, which was most marked on the right side at L4/5. Dr Goudar, on the other hand, reported that the applicant had “marked facet joint arthritis especially on the right side L4/5 level”.
While Dr Jiang reported on 7 December 2023 that the MRI showed the applicant’s facet joints were normal, with no canal or foraminal narrowing, it does not appear that any of the treating or qualified practitioners has reviewed the scan itself.
In any event, I do not accept that the fact that the second MRI scan was reported as not showing abnormality of the applicant’s facet joints is determinative of the matter. Doctors do not rely solely on investigations, or the reports of investigations, in making diagnoses or recommendations for treatment.
Dr Moond was not able to provide the applicant with a clear cause of his pain, but all the GPs who treated the applicant recorded ongoing complaints of pain. Dr Moond recorded that the applicant sometimes had pain in the leg in the L5/S1 dermatome.
Dr Goudar recorded that the applicant had decreased sensation along the L4/5 dermatome on the right leg, and the most likely cause of the radiating pain was his lumbar spine.
Dr Cadden recorded that, on his clinical examination, the applicant had symptoms in his right leg, and mild sensory change that he located at the L4 and L5 dermatomes. By the time of his second examination, he was aware that investigations had not clearly identified the cause of the applicant’s radicular symptoms.
Dr Cadden accepted the applicant’s complaints of pain, of which a pain type syndrome was the likely cause. This then gave the impression of inconsistency between the applicant’s reported symptoms, his incapacity, and the objective pathology.
In his final report, Dr Cadden opined that it was likely that the applicant’s persisting symptoms were related to lumbar spine pathology that had not been identified.
Dr Ferris diagnosed the applicant with lumbar facet joint arthropathy, and recommended radiofrequency neurotomy.
Dr Hardy also diagnosed the applicant with L3 to S1 facet arthropathy. There were several treatment options, but he did not suggest that either radiofrequency ablation or medicinal cannabis was not reasonably necessary treatment.
Dr Lee supported the proposal that the applicant undergo radiofrequency neurotomy. He did not provide expansive reasons, but he opined that the applicant’s symptoms were in the facet joints and the procedure could help relieve the pain.
Dr Gorman was of the opinion that the applicant’s injury had resolved. This was not the opinion of any of the other practitioners who have treated or examined the applicant. He found inconsistency on examination, unlike Dr Cadden, who recorded no inconsistency.
When he was asked about other available treatments, Dr Gorman responded that the effects of the work incidents had effectively resolved. He believed there was no indication that the applicant’s facet joints were the source of his ongoing pain (which he opined was in any event unrelated to either work injury), which was not the opinion expressed by the other practitioners.
The applicant referred to Diab, in which Deputy President Roche referring to his Honour Judge Burke’s decision in Rose v Health Commission (NSW),[4] said (at [88]) that the relevant matters, according to the criteria of reasonableness, included, but were not limited to:
(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.
[4] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
Roche DP said (at [89]) that with respect to point (d) above,
“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.”
Roche DP went on to say (at [90]):
“While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookwear Pty Ltd).[5] Thus, it is not simply a matter of asking, as was suggested in Bartolo[6], 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,[7] 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.’”
[5] [1997] NSWCC 13; (1997) 15 NSWCCR 204.
[6] Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233.
[7] [2010] HCA 28.
Having considered the medical evidence, I prefer the evidence of Drs Cadden, Goudar, Ferris, Hardy, and Lee to that of Dr Gorman.
Taking into account the criteria of reasonableness in Rose:
(a)    the weight of the medical evidence supports the treatment as being appropriate;
(b)    the applicant has had extensive alternative treatment, without apparent benefit. He is not required to undergo every other alternative treatment in order to establish that the proposed treatment is reasonably necessary. As the applicant submitted, when Dr Ferris suggested other forms of treatment he was aware that the respondent had disputed liability for the proposed treatment;
(c)    the cost of the procedure was quoted by Shoalhaven Pain Management Centre on 12 July 2023 (the quote being attached to the applicant’s AALD dated 3 July 2024) as $3,187.50. The quote stated that there would be associated costs. The Application claims that the total cost is $4,760. The cost of the treatment is not excessive;
(d)    the weight of the medical evidence supports the treatment as being potentially effective. Dr Gorman’s evidence does not support it, but as noted, he was of the opinion that the applicant’s condition had resolved, an opinion I do not accept, and
(e)    the weight of the medical evidence accepts that the treatment is appropriate and likely to be effective.
I therefore determine that the proposed radiofrequency neurotomy treatment, as recommended by Dr Ferris, is reasonably necessary medical treatment as a result of the injury.

Medicinal cannabis

It is unclear whether the suggestion of medicinal cannabis treatment came initially from the applicant. I do not believe that it matters if it did. The applicant may have been aware of the existence of the treatment and may have asked Dr Ferris if medicinal cannabis was an option for him.
Dr Ferris would hardly have accepted a query or suggestion from the applicant or any other patient as to a form of treatment had he not been of the opinion that the treatment was appropriate and not contra-indicated.
Of the doctors who have opined on the use of medicinal cannabis to treat the applicant’s pain, only Dr Gorman was of the opinion that it was not appropriate. Once again, I note that he was also of the opinion that the effects of the work incidents had resolved. That is at odds with the other medical evidence.
Dr Gorman noted that the Faculty of Pain Medicine did not accept the use of medicinal cannabis. He conceded that the TGA mentioned chronic pain as being an indication for its use. He described it as expensive and ineffective.
Dr Ferris is a pain management specialist. It is presumed that he is aware of the differing positions taken with respect to the use of medicinal cannabis. He was aware of all the other treatments the applicant had undergone and opined that all other avenues had been exhausted.
Dr Hardy has provided what I regard as a well-reasoned and balanced report. He has referred to several treatment options, one of which is medicinal cannabis, and one of which was the radiofrequency ablation that had been offered.
Dr Hardy referred to the differing opinions on the use of medicinal cannabis to treat CNCP and noted the TGA guidelines. He carefully and thoroughly addressed the criteria in Rose. I accept his evidence with respect to those criteria.

Having reviewed the medical evidence, I am persuaded by that of Drs Ferris and Hardy, in particular, that medicinal cannabis is reasonably necessary medical treatment as a result of the injury. I prefer their evidence to that of Dr Gorman.
The orders are set out in the Certificate of Determination.

[2024] NSWPIC 434

13 August 2024