Wyborn v St Andrew's Village Ballina Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wyborn v St Andrew's Village Ballina Ltd [2024] NSWPIC 366
APPLICANT:	Dylan Charlie Wyborn
RESPONDENT:	St Andrew's Village Ballina Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	9 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60 for past and future medicinal cannabis treatment; accepted physical and psychological injuries resulting from assault at work; prior psychiatric history; chemical coping history; cost of treatment; actual effectiveness of treatment; Held – award in favour of the applicant for past treatment expenses; ongoing expenses subject to the operation of section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The medicinal cannabis expenses incurred to date are reasonably necessary as a result of the injury on 22 May 2015 for the purposes of s 60 of the Workers Compensation Act 1987. 2. The respondent to pay the medicinal cannabis expenses incurred to date upon production of accounts and/or receipts. 3. The respondent to pay the applicant’s ongoing medicinal cannabis expenses so long as they continue to satisfy the requirements of s 60 of the of the Workers Compensation Act 1987, upon production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

Mr Dylan Wyborn (the applicant) was employed as a care service employee by St Andrew's Village Ballina Ltd (the respondent).
On 22 May 2015, the applicant was assaulted by a nursing home resident with dementia causing injuries including, dislocation of the applicant’s right temporomandibular joint (TMJ). Liability for the injury was accepted by the respondent’s insurer.
On 30 August 2022, the applicant made a claim for compensation pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) for the costs of medicinal cannabis treatment.
The claim was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 24 November 2022. That decision was maintained following an internal review on 23 May 2023.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 25 October 2023.
The applicant seeks compensation for approximately $10,000 of incurred medicinal cannabis expenses as well as the ongoing cost of the treatment.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the treatment expenses claimed are reasonably necessary as a result of the injury on 22 May 2015 pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 30 January 2024, at which time a joint application was made by the parties for the matter to be referred to a Medical Assessor for a non-binding opinion.
The Commission agreed to the referral and a Medical Assessment Certificate was issued on 26 March 2024 by consultant physician in pain medicine, Dr Glen Sheh. Dr Sheh concluded that the medicinal cannabis expenses claimed were reasonable.
At a further preliminary conference on 9 April 2024, the parties remained unable to reach agreement and the matter was referred for a further conciliation conference and arbitration hearing on 4 June 2024. The applicant was represented by Mr Hammond of counsel, instructed by Ms Anderson. The respondent was represented by Mr Young of counsel, instructed by Mr Mead. A representative from the insurer was also present.
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 Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 11 January 2024;
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 30 January 2024;
(e)    documents attached to an Application to Admit Late Documents lodged by the applicant on 13 February 2024, and
(f)    Medical Assessment Certificate issued by Dr Glen Sheh dated 26 March 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 28 September 2018, 4 August 2023 and 2 February 2024.
In his first statement, the applicant described the incident on 22 May 2015. The applicant was hit in the face with a closed fist by a resident of the nursing home at which he was working. The applicant sustained physical injuries to his jaw, neck and back as well as psychological injuries.
The applicant described the ongoing effects of the injury and his treatment to date including Botox and cortisone injections, lavage and an arthrotomy on his jaw performed on 10 July 2018. The applicant said he was under the care of his general practitioner and had attended a number of sessions with a counsellor through Headspace.
The applicant described intermittent pain and discomfort in his jaw, significantly reduced lateral and vertical movement of his jaw and difficulty eating solid food. The applicant also described a number of psychological symptoms including anxiety, panic attacks, depression, disturbed sleep, cognitive impairment and suicidal ideation.
The applicant disclosed that he had previously been diagnosed with attention deficit hyperactivity disorder (ADHD) and obsessive-compulsive disorder (OCD) by Dr Richard Cherry. Those conditions were well-managed and did not prevent the applicant from working or maintaining an active life.
In his second statement, the applicant listed his ongoing symptoms and disabilities as follows:
(a)    constant jaw pain;
(b)    reduced range of motion in his jaw;
(c)    arthritic pain;
(d)    difficulty sleeping associated with the pain;
(e)    inability to eat food which is not soft;
(f)    pain in the C7 spinal nerve;
(g)    neuropathic pain;
(h)    depression, and
(i)    post-traumatic stress disorder.
The applicant said that he commenced using medicinal cannabis in or about March 2022. The applicant noticed a considerable improvement in the quality of his life and his ability to function while taking the medicinal cannabis. The applicant still experienced a baseline level of pain but it was bearable and not impacting upon his daily life.
The applicant said his prescribed treatment plan involved a CBD/THC oil mix in the morning and then cannabis flower concentrates (THC) at a low-dose using a vaporiser throughout the day. The applicant said that the combination of these two methods would allow him to sleep through the night, however, on occasion, if he was having a bad night, the applicant would use a condensed version of the flower to assist him to sleep. This happened approximately once every two weeks.
The applicant said the dosage did not impair him or give him a feeling of being high. He was able to think clearly and function by going to work, the gym and performing household tasks.
The applicant reduced his dosage due to financial constraints in or about April or May 2023. The applicant was taking approximately 20% of the prescribed dose and just the oil combination in the mornings. The applicant had noticed a significant deterioration in his health since that time.
The applicant said he was not taking any other medication for the injury but was continuing to engage in physiotherapy.
The applicant described the benefits of the medicinal cannabis treatment including being able to consume more nutrient rich food which he previously found difficult to chew due to pain and restriction in his jaw. Since reducing his dosage, the applicant had been consuming a calorie rich, soft food diet, mainly consisting of processed foods.
The applicant’s psoriasis and mental health had deteriorated since ceasing the cannabis treatment.
The applicant had stopped exercising due to pain since ceasing the medicinal cannabis treatment. While taking cannabis, the applicant returned to the gym and was running and swimming most days. The applicant had started training for a triathlon. The applicant said he had put on approximately 10kg and was unable to walk his two dogs since ceasing treatment.
The applicant said that prior to commencing medicinal cannabis treatment, he would have three to four hours of interrupted sleep per night due to pain. While taking medicinal cannabis, the applicant was able to sleep uninterrupted for eight hours per night. Since ceasing the treatment, the applicant had reverted to his disrupted sleep pattern and was constantly tired.
The applicant described having returned to work following the injury but said his capacity was reduced due to pain. Since ceasing medicinal cannabis treatment, the applicant found the pain of physical work unbearable. While taking the medicinal cannabis, the applicant had been able to work without taking leave.
The applicant said he struggled with day-to-day tasks including housework prior to and since ceasing cannabis treatment due to pain. While taking the cannabis, the applicant’s pain was bearable and he was more motivated to get up and take care of himself.
The applicant said his relationships and social functioning had diminished due to lack of energy when not medicated with cannabis. While taking the cannabis the applicant was more socially active.
The applicant said he had not experienced any negative side effects from taking medicinal cannabis.
The applicant’s previous treatments included various surgical procedures to his jaw, cognitive behavioural therapy, injections, physiotherapy, use of an occlusal splint and medications including opioids and anti-inflammatories. The applicant said the other treatments undertaken to date did not provide any significant improvement in his level of pain or function.
The applicant said he was provided with initial relief from the opioid medication but the effectiveness would wear off. The applicant became heavily dependent on opioids and constantly felt like he needed something stronger. The applicant ceased taking opioids after his final surgery. While taking opioids, the applicant felt incredibly impaired and unable to think clearly. He experienced significant psychological side-effects including suicidal ideation, depression, weight gain and social withdrawal. The applicant has been advised not to resume opioid treatment due to the side effects.
In his third statement, the applicant addressed his current medicinal cannabis regime. With regard to his symptoms, the applicant said,
“My pain levels are almost negligible to the point they don’t bother me when I am consistently following my prescription. However if I am unable to take my prescription (due to shortage or financial restriction) I suffer increased pain and symptoms including clicking in my jaw. The pain is worse at night and it impacts my ability to sleep. I ran out for a period of time in December 2023 and my symptoms were severe.”
The applicant said he was no longer experiencing symptoms or receiving treatment for his psychological injury.
With regard to his recreational drug and alcohol use, the applicant stated:
“I have read the reports of Dr Gorman and Dr Scurrah. I used cannabis socially on a number of occasions before the injury however I was not a habitual user or abuser as I am referred to. I drank socially but was not an alcohol abuser.
I do not use any other drugs, prescribed or otherwise, other than medically prescribed cannabis. I do not take illicit cannabis.”

Treating evidence

Consultation notes prepared by counsellor, Ms Terri King from Headspace on 16 March 2016 recorded a drug and alcohol history that included smoking cannabis, more when he was feeling low flat. The applicant used to take MDMA but ceased due to the ‘comedown’. The applicant was taking Lysergic Acid Diethylamide (LSD)/hallucinogens and stated he would take this every weekend if he could. He spoke positively of the experience of taking LSD and the elevating effect that had on his mood. The applicant reported that he loved being under the influence of LSD.
A psychological assessment conducted at an initial appointment with Headspace on 22 March 2016 noted a range of psychological symptoms. Amongst other things, it was noted that the applicant had not been able to sleep at all if not intoxicated with cannabis.
The notes of a multiservice meeting on 24 March 2016 recorded that the applicant used cannabis and LSD.
On 29 March 2016, Mr Beau Robertson recorded that the applicant was consuming $400 per week of cannabis which he identified as self-medicating.
On 5 April 2016, Mr Paul Phillips recorded notes of a consultation in which the applicant acknowledged smoking cannabis “way too much”. A plan was developed to cut his usage to a quarter ounce per week within a month.
Mr Robertson recorded on 10 May 2016 that the applicant was using cannabis for relaxation, to reduce negative thinking and to aid sleep. The applicant was noted to have said he had decided not to use any other drugs and he did not consider cannabis to be a drug.
Clinical records from Dr Jarred Pezzullo from ‘Chronic Doctors’ are attached to the ARD. At an initial consultation on 10 May 2022, Dr Pezzullo noted:
“takes MC oil and flower for chronci jaw pain
has prosthetic jaw in from injury 8 years ago has tried endone and panadol in the past
did not want to become addicted to it
pain is worse at night which keeps him up
uses oil at night to help sleep and from waking up
has tried sleep hygiene such as mindfullness, blue light blockers etc
Past medical history:
denies any history of mental illness, schizophrenia, psychosis episodes denies any history of hypersensitivity to cannabinoid products
Current medical history:
denies any history of Cardiovascular, liver, renal diseases or other no current risk factors for cardiovascular disease
denies history of substance use disorder or use of drugs of dependance
Medication review
patient not on any other medication that would interact with medical cannabis products.”
On 26 May 2022 Dr Pezzullo noted:
“much imrpoved symptoms
has gone through much more then antixipated
about 3g a day
able to smoke at work”
In June 2022, Dr Pezzullo noted that the applicant was not noting benefit from sativas and his pain was not controlled with “bedrocan”. The applicant was going through 70g a month and experiencing some issues with stock shortages.
On 12 September 2022, Dr Pezzullo noted:
“insurance clain wiill go through
will have case worker
will need to tell case worker the monthly flower 90g a month usually
found he was up to 110g due to stress and being overworked, having to talk alot at work
doesnt want to be on that high of usage
strains he found that works for him wedding cake, lee an womac, levin health 26%
also uses the cbd oil:thc oil mixture, uses 0.5mls finds it is cumbersome because of how long it lasts has 1 repeat left, not sure if he will continue it.”
In a note dated 24 October 2022, it was recorded:
“sleeping better
mood good
pain well controlled
going much better less stressed, new position at work
needing less cannabis
90g a month is a good limit for him”
On 3 January 2023 Dr Pezzullo recorded,
“new job at canwell
doing so much better mentaly and physicaly
not needing as much flower
important part of the team acting as a cannabis strain consultant and constomer service”
On 31 January 2023 Dr Pezzullo noted that the applicant’s mental health had improved due to his new job and he was aiming to reduce his usage to 60g per month.
On 29 June 2023, Dr Pezzullo recorded:
“on 90g a month but aiming for 60g a month
averaging 40g a month due to finances
used some black market that he got for free
in a stable position now
working with a labourous job, back sore, more stress difficulty getting work cover to pay for it
…
changed job again to green care.
couldnt use oils due to price. Has noticed that without his oils he hasnt been sleeping well and his mood is poor
finds cbd good for mental health
mental health has declined a bit with some stress
sleep isnt good as he wakes up with in the middle of the night”
On 4 November 2023, the applicant was noted to be going well and there were no signs of dependence.
Dr Pezzullo prepared a report on 26 December 2023 in which he recorded:
“Over the months we have trailed different formulations and strains of medical cannabis. Due to ongoing stock issues and availability, this has had to change frequently. Medical cannabis flower has helped Mr. Dylan Wyborn treat his chronic jaw pain and his ability to function. Since being on medical cannabis, Mr. Dylan Wyborn states his overall quality of life has improved as well as being able to progress his career. Since being on medical cannabis, not only has his pain been well controlled, but he has also seen improvements in his sleep and his mood. Since treating Mr Wyborn, I have not noticed any deterioration in his physical or mental health, nor have I witnessed any unwanted side effects. In addition, Mr Wyborn has reduced his overall medical cannabis use since our original consultation. Although Mr Dylan Wyborn’s medical regime has frequently changed many times over the last year, the current regime is: Cannatrek Gluberry 23% during the afternoon if needed, Biocann Chocolate sour diesel 24% in the evening if needed and Tasmanian botanics amethyst vape cart 750mg/g during the afternoon and evening if needed. The medical cannabis treatment program has allowed Mr Dylan Wyborn to manage his pain in a safe and comfortable level that allows him to have a suitable quality of life.”
In a further report for the applicant’s solicitor dated 6 February 2024, Dr Pezzullo reported that the applicant’s mood had improved with medicinal cannabis treatment. The treatment goal for the applicant was related to his chronic jaw pain rather than calmative treatment for ADHD and OCD. Dr Pezzullo commented,
“While consulting with Mr Dylan Wyborn, I was aware of his previous substance use with cannabis. However, I was not familiar with the fact that Mr Dylan Wyborn had a formal diagnosis of substance abuse disorder. I would appreciate it if I could obtain this document to confirm this. I was aware of Mr Dylan Wyborn’s psychiatric history of ADHD and PTSD. I was not aware of his history of OCD and ODD. In saying that, Mr Dylan Wyborn’s psychiatric history was not a primary focus of our treatment plan, however he did notice secondary improvements in sleep and mood.”

Dr Scurrah

Clinical psychiatrist, Dr Mark Scurrah, prepared a report for the applicant’s solicitor for the purposes of a claim for lump sum compensation under s 66 of the 1987 Act on 25 June 2019.
Dr Scurrah recorded that the applicant had developed a range of symptoms which were consistent with a chronic Post Traumatic Stress Disorder with depressive symptoms. Dr Scurrah noted that the applicant was consuming excess alcohol on weekends and smoking cannabis on weekends although these both were present prior to the assault. Notes from Lismore Base Hospital where the applicant received treatment for post-traumatic stress disorder symptoms revealed a history of polysubstance abuse in the past. With regard to the applicant’s current use Dr Scurrah observed:
“He also smokes cannabis. It may be five to 10 joints per day on a weekend. He identified it as ‘a lot’. Cannabis Abuse dates back to a period soon after high school.”
With regard to treatments for his psychological symptoms, Dr Scurrah noted:
“He consulted Head Space and a Psychologist. He did not believe either were beneficial.
…He is taking a number of prescription medications. He was uncertain of their doses. He advised he took ‘Minipress (dose unknown) for PTSD’. He also takes Endone three nights a week for chronic jaw pain. He has been prescribed multiple antidepressants since the assault. He could not recall their names or doses. He did not believe they were beneficial. He denied taking antidepressants prior to the assault.”

Mr Hijazi

Pharmacist, Mr Mayez Hijazi, prepared a pharmacy review report for the respondent on 30 April 2021. That report described the injury and subsequent treatment of the applicant’s injury.
Mr Hijazi noted the applicant’s prescription history and commented:
“The combination of medications listed above is significant and classed as ‘polypharmacy’. I do not believe that there is a rationale for the ongoing use of most of these medications and it is more than likely that Dylan has developed a degree of dependency and tolerance towards these medications.
When these medications are used concurrently the risk of sedation, cognitive dysfunction and dependency is significantly increased. This will ultimately impact on Dylan’s function and hence his ability to participate in relevant interventions and potential return to work trials. Such medication combinations are also likely to lead one to experience any pain relief when progressing through interventions due to nerve sensitisations making one more sensitive to pain. Essentially, such a drug combination increases the chronicity of a person’s condition which makes it difficult to break the ‘pain cycle’ without any plan to rationalise and address medication use.”
Mr Hijazi was asked about the effects of illicit substance use, including LSD and MDMA, on the applicant’s symptoms. Mr Hijazi commented:
“Although I am not privy of Dylan’s duration and extent of drug use, a report dated 25/6/19 by psychiatrist Dr Mark Scurrah indicated that Dylan has cannabis abuse dating back to a period soon after high school, which would have been approximately 2013. Despite this there is no safe level of drug use. MDMA is associated with an array of adverse effects, however the focus will be on physical effects towards the jaw and mental health effects (discussed later). MDMA has a high frequency of oral side effects which are mainly related to xerostomia (dry mouth) and jaw clenching.”
Mr Hijazi noted a prior psychiatric history, commenting,
“Dylan has a background of ADHD and OCD and was treated by Dr Huntsman who is a private psychiatrist prior to his injury. Reports in Dylan’s file indicate that he had ceased his medications for the management of these conditions however I was able to determine from other reviews that dexamphetamine was ceased as he was abusing it in the context of other illicit substance use (Clinical & progress notes by Dr Sterling 19/6/2017).”
Mr Hijazi reported that the file provided to him indicated that the applicant had previously disclosed consuming illicit substances:
“The file provided to me indicated that Dylan has previously disclosed to consuming illicit substances lysergic acid diethylamide (‘LSD’), methylenedioxy methamphetamine (‘MDMA’) and cannabis. After carefully reading through the array of reports and notes provided in the file, there was no emphasis or action taken for Dylan’s suggested polysubstance abuse. I refer to consultation notes by ‘Headspace’ psychology dated 16 March 2016 that noted Dylan smokes illicit substances cannabis, MDMA and LSD however there was no intervention taken to address his polysubstance abuse.
…Dr Mark Scurrah (Consultant Psychiatrist) on 25/6/2019 … noted the following:
‘Dylan requires focus upon his polysubstance abuse. If he is able to cease it, then two weeks inpatient treatment at a private, special hospital would be beneficial.’ Unfortunately, there appears to be no attempt at this recommendation for Dylan. In this same report it was noted that Dylan revealed that he smokes cannabis. Cannabis abuse dates back to a period soon after high school which would be approximately 2013.”
It was noted that cannabis had an acute and chronic effect on mental health although the effects varied depending on the individual, dosage, method of administration, environment and personality.
Mr Hijazi recommended an urgent change in the applicant’s medication profile due to the concerning concurrent use of multiple central nervous system depressant drugs, the concurrent use of antidepressants, opioids and benzodiazepines and the concurrent use of more than one antidepressant.
Mr Hijazi noted that the applicant continued to experience substantial pain and functional problems which interfered significantly with his ability to function occupationally and perform activities of daily living. It was noted that the applicant had trialled all conservative measures to address his jaw symptoms.
Mr Hijazi recommended referral to a drug and alcohol rehabilitation facility to initiate an inpatient stay to assist with drug abstinence. Rationalisation by a gradual cessation of the use of opioid analgesics should be discussed with the treating doctor as a matter of urgency. Rationalisation of the combination of pharmaceutical medications ought also to be considered.

Dr Bisht

A file review report was prepared for the insurer by Dr Yajuvendra Bisht on 28 November 2022.
Dr Bisht made a diagnosis of major depressive disorder and post-traumatic stress disorder which he said were likely to be affected by the pre-existing condition of cannabis use disorder and ADHD.
Asked to comment on whether medicinal cannabis therapy was appropriate in the applicant’s case, Dr Bisht responded:
“Though there are some studies that support the efficacy of medicinal cannabis to alleviate the symptoms of the worker’s condition, however the evidence is currently considered weak. The Royal College of Australia and New Zealand Psychiatrist guidelines, do not recommend medicinal cannabis as treatment for the worker’s condition. In addition, the pre-existing cannabis use disorder means that there is a high risk of worsening of the cannabis use disorder, if medicinal cannabis was to be prescribed. There is a potential to worsen the pre-existing condition of ADHD.”

Dr Gorman

The respondent relies on medico-legal reports prepared by consultant general physician and pain management physician, Dr David Gorman dated 14 November 2022 and 29 January 2024.
Dr Gorman took a history of the injury on 22 May 2015 and subsequent treatment that was broadly consistent with the other evidence.
Dr Gorman noted the report from Dr Scurrah, observing:
“I note that he was also reviewed by Dr Mark Scurrah (Psychiatrist) dated 25 June 2019. At the time Dr Scurrah noted that Mr Wyborn was consuming excess alcohol and smoking cannabis at weekends. He recorded that the cannabis abuse dated back to soon after high school. Dr Scurrah noted symptoms including nightmares, hypervigilance and intermittent panic attacks. He noted difficulty sleeping, reduced concentration and reduced energy which could be due to PTSD, his chronic jaw symptoms and his substance abuse.”
The applicant’s current symptoms included sleep disturbance, pain when eating, neck pain and pain over the right temporomandibular joint.
The applicant was noted to have ceased benzodiazepines and opioids one half years earlier and to have been placed on medicinal cannabis. The applicant was also taking dexamphetamine occasionally which he had been prescribed for many years.
With regard to the applicant’s medicinal cannabis treatment, Dr Gorman observed:
“He is currently using the medicinal cannabis ‘flower’. He did not find the medicinal cannabis oil was helpful and it is more expensive. The flower costs him around $500 per week and his parents help with this. He vapes that. It comes as a dry herb. He vapes every one to two hours.”
Dr Gorman described the applicant’s medicinal cannabis use as excessive. He also noted illicit cannabis use since school. Dr Gorman suggested that the applicant’s symptoms were likely magnified and perpetuated by the background history of marijuana abuse and ADHD.
Dr Gorman made diagnoses of temporomandibular joint pain after a joint replacement necessitated by the work injury and cervical spinal pain with reasonable range of movement.
Asked whether medicinal cannabis therapy was appropriate in the applicant’s case, Dr Gorman responded:
“I do not believe that medicinal cannabis is appropriate in this case. He already had used illicit cannabis and the use of the medicinal cannabis is therefore unwise in this case.
He is already on a high dose of medicinal cannabis (costing up to $500 per week).
The medicinal cannabis would be sedating him, making it illegal for him to drive and also would be likely affecting his underlying psychiatric state (ADHD and obsessive compulsive disorder).
Medicinal cannabis is not effective as analgesic as outlined in the Position Statement from the Faculty of Pain Medicine and also the Position Statement from the International Association for the Study of Pain.
The Faculty of Pain Medicine specifically stated in the press release which I have attached that medicinal cannabis should not be used for chronic pain.
As well, in the position statement from the Royal ANZ College of Psychiatrists, it is specifically stated that medicinal cannabis is not appropriate to treat psychiatric conditions.
In younger patients, the high doses of illicit or medicinal cannabis can lead to psychiatric deterioration, including psychotic symptoms. Overall, it is most unwise and not appropriate that Mr Wyborn has medicinal cannabis.”
Dr Gorman expressed the view that although Dr Pezzullo had experience in the prescription of medicinal cannabis he had not taken an overall view of the applicant’s physical and psychiatric state and in particular did not seem to have taken into account the previous substance abuse history or previous psychiatric history.
Dr Gorman expressed the view that medicinal cannabis was essentially being used as a replacement for illicit cannabis and also to treat the applicant’s underlying ADHD and OCD through its calming effect. Dr Gorman did not believe that medicinal cannabis was being used for any effect of the injury.
With regard to alternative treatments, Dr Gorman gave the opinion,
“As mentioned above, the medicinal cannabis is essentially treating his underlying OCD and ADHD. The jaw injury aggravated these as well. The alternative treatment approach is to gradually reduce his medicinal cannabis using techniques for reducing substance abuse. He needs to gradually increase his aerobic activity. He may need other medications for psychiatric complaints and may need occasional simple analgesia such as paracetamol and Nurofen. This would be the ideal alternative treatment, led mainly by a psychiatrist.”
Dr Gorman concluded that the medicinal cannabis treatment was not reasonably necessary for any effects of the injury.
In his supplementary report, Dr Gorman was asked to review the report of the applicant’s expert, Dr Mark Hardy.
Dr Gorman disagreed with Dr Hardy’s views as to the reasonableness of the treatment costs:
“I also disagree that the total cost of any antineuropathic medications, anti-inflammatory drugs and strong opioid analgesics is comparable to the $1350 per month for cannabis. It will be less than $100-$150 per month.”
Dr Gorman reiterated his view that in the circumstances of this case it would not be appropriate to go outside the position statements of the Faculty of Pain Medicine and the RANZCP. This was particularly so considering the applicant’s relatively young age, significant past psychiatric history and significant history in the past of substance abuse disorder.
With regard to the psychological benefits of the treatment, Dr Gorman commented:
“I would argue that the benefits to him psychologically from the medicinal cannabis are more related to benefiting to his pre-existing condition of ADHD and giving him maintenance cannabis as treatment for his pre-existing substance abuse disorder. I do not believe that, knowing the poor effectiveness of medicinal cannabis as an analgesic agent, that it is predominantly being used as an analgesic agent for his work injury. In other words, in this ‘N=1’ trial he has benefitted by having easy access to cannabis to treat his psychiatric conditions (ADHD and substance abuse disorder) rather than benefitting from any analgesic effect. It may be helping him overall but I do not believe that the help that he is getting is necessarily for the work injury itself.
…
While Dr Hardy may have reasonable points regarding some parts of Mayez Hijazi’s pharmacy report, I tend to agree with the conclusion of the report that Mr Wyborn’s current need for medicinal cannabis is more related to a perpetuation of his historical substance use, initially aggravated by the subject injury but now continuing as a perpetuation of his historical substance use.”

Dr Hardy

The applicant relies on medico-legal reports prepared by addiction medicine specialist, Dr Mark Hardy, dated 24 April 2023 and 9 February 2024.
Dr Hardy took a history of the injury and subsequent treatment that was consistent with the other evidence.
Dr Hardy noted that the applicant had commenced medicinal cannabis treatment about 18 months previously and described it as “life changing”. The applicant was using 90g of dried cannabis flower per month and a combination of CBD and THC oils in the morning. At night time, he was using THC for breakthrough pain.
Dr Hardy noted that the applicant had been off dexamphetamine for four to five months and was taking no other regular medications.
Dr Hardy observed that the applicant smoked between the age of 19 and 25. The applicant had used nicotine to mix with cannabis when he reinitiated its use after an extended break. The applicant now vaporised nicotine and cannabis separately.
Dr Hardy recorded a history of cannabis use as follows:
“He used first at the age of 18. He had a joint with friends at a party. He was never regular until post injury. His use of cannabis was much less than opioids during the initial phases of his pain episode. The maximum use was 4 grams per day. He is slowly decreasing and is currently using approximately 3 grams per day.”
The applicant was also noted to have used MDMA rarely and to have dabbled in mushrooms (psilocybin).
Dr Hardy noted that the applicant had been diagnosed with post-traumatic stress disorder, depression and anxiety secondary to the injury. Dr Hardy noted the applicant’s functional restrictions and symptoms. Dr Hardy gave a prognosis as follows:
“It has been nearly eight years since the injury. He has very limited jaw function and severe chronic pain. He has tried a gamut of traditional treatments without benefit. He has found the use of medicinal cannabis to be most helpful. It provides him with days where his pain score is 0/10. There is no other foreseeable treatment that is likely to produce a similar result. He has been able to de-prescribe off all opioids and has been able to cease the use of other medications. I doubt that any other single treatment would have had anything like the beneficial effect that this has had on him.”
Asked whether there were any more suitable alternatives to the treatment, Dr Hardy said that most suitable and reasonable alternatives had been tried. None of the traditional treatments were likely to add further benefits in the applicant’s case. Medicinal cannabis was the next step in the applicant’s care in an attempt to gain further control of pain and improve his function.
Dr Hardy said the cost of the medicinal cannabis treatment was approximately $1,350 per month. This was said to be comparable to the total cost of anti-neuropathic medicines, anti-inflammatory drugs and strong opioid analgesics. These had their own negative side effects including cognitive impairment, weight gain, addiction, depression and suicide.
With regard to whether the treatment was accepted by the medical profession as being a reasonably necessary step in the treatment of the applicant’s injuries, Dr Hardy responded:
“Over 1,000,000 medicinal cannabis scripts have now been written in Australia since legalisation in 2016. Around 50% have been for chronic pain alone. This treatment has been accepted by medical experts across a broad range of disciplines. Whilst various bodies (including the Faculty of Pain Medicine, RANZCP) have published position statements addressing their current approach to the use of medicinal cannabis, many pain specialists, physicians, psychiatrists, and GPs prescribe it to patients with chronic pain.”
Dr Hardy said there was considerable potential for medicinal cannabis to assist in reducing pain and discomfort. The applicant had seen this outcome in his own use of cannabis treatment. Dr Hardy observed:
“The treatment will assist him and be able to maximise his functional capacity and minimise his pain, whilst improving his quality of life. It is a worthwhile pursuit. It will allow him to function better across the wider range of occupational, domestic, and recreational pursuits. It may improve his outlook in terms of relationships and intimacy. These are all very important functions for a young man.”
Asked to comment on Mr Hijazi’s report, Dr Hardy noted that he lacked visibility on the applicant’s current medications and had obtained a drug use history second hand from Dr Scurrah’s report which had been prepared for the purposes of a whole person impairment assessment. The information was nearly two years out of date and listed all medications ever tried rather than the medications actually being taken at the time of Mr Hijazi’s report. Dr Hardy found the entire report to be unreliable.
Dr Hardy expressed opinions that the use of medicinal cannabis was within the range of potentially helpful treatments. The applicant had an unsuccessful trial of other traditional treatments and met the criteria for a trial of medicinal cannabis in line with TGA guidelines for chronic non-cancer pain.
Asked to comment on Dr Gorman’s opinions, Dr Hardy responded:
“Dr Gorman has used the example of the mildest cannabinoid, cannabidiol (CBD) and translated its potential for benefit (or lack) to Mr Wyborn’s medication, which is much stronger, being tetrahydrocannabinol (THC). He then ascribes the side effects and limitations to THC. In his answer, he seeks to have it both ways. It is either a weak analgesic with few possible side effects, or a strong analgesic with potential for more significant side effects. It cannot be both. His answer has confused the picture, not made it clearer. The press releases to which he refers are position statements and guidelines for treatment from his own faculty (FPM) and the College of Psychiatry. Practitioners in pain, colleagues of Dr Gorman, as well as psychiatry use cannabis for a variety of conditions, including chronic pain, anxiety disorders, PTSD and mood disorders (8-14). His comments on cannabis use for psychiatric disorders could not be further from the truth. The only psychiatric contra-indications would be an active psychosis, or history of same induced by drugs. Mr Wyborn reported neither.
Dr Gorman has commented about ‘younger people’ and psychotic disorder. My experience in working in early psychosis units would suggest that 26 is not the sort of ‘younger person’ I would see 15-16-year-olds, with genetic vulnerability are at risk. Mr Wyborn has never had a psychotic episode, and I cannot foresee one in the future.
In terms of driving, it is illegal to drive with cannabis in one’s system. Mr Wyborn has been provided with counselling regarding this. It is not a Workers’ Compensation issue. It is a personal one. A reconsideration of the need to drive would be one for Mr Wyborn to consider. It is not strong enough a reason to deny treatment.”
Dr Hardy disagreed with Dr Gorman’s views as to Dr Pezzullo’s competence to manage the applicant’s treatment noting,
“I would not see a pain specialist for mental health, and I would not see a psychiatrist for pain. I would see a GP for both, however. Dr Pezzullo has experience in all facets of cannabis prescribing, in pain and mental health contexts.”
With regard to Dr Gorman’s references to effect of cannabis on ADHD and OCD, Dr Hardy noted that Dr Gorman gave no credit to cannabis for the reduction in pain. Dr Gorman had not attempted to score the applicant’s pain on a visual analogue scale and had provided a rudimentary functional capacity assessment. Dr Gorman given no weight to the applicant’s claims with regard to the benefits of cannabis treatment. Dr Hardy noted,
“Dr Gorman has provided no clinical grounds to assert that Mr Wyborn is using cannabis to treat his ADHD and OCD. This is a fantastical answer, with no clinical reasoning. Given he has reduced his cannabis intake from 4g per day to 3g per day, I believe he has already begun to gradually reduce his cannabis use. While I cannot be certain if he will cease entirely, his reductions are encouraging. The alternative treatments suggested by Dr Gorman have all been tried, without sufficient benefit. I have recorded them all in the sections of my report, headed ‘History of Presenting Complaint’, ‘Medications (Past)’ and ‘Other Treatments’ Retrying them is a waste of time. Mr Wyborn has had a satisfactory trial of psychiatric treatments and interventions. Medicinal cannabis is a reasonable next step in his therapy.”

In his supplementary report, Dr Hardy commented on the drug and alcohol history recorded by Dr Gorman:
“Mr Wyborn’s alcohol and other drugs history, as taken by me in my report dated 24 April 2023, did not reveal a significant substance use disorder. Whilst he admitted to using illicit cannabis in his youth, it was not daily. He did not demonstrate the three major dependence criteria of tolerance, withdrawal, and salience. Whilst he was able to tolerate up to 4g of flower/herb daily, there was no evidence of a withdrawal syndrome, nor salience behaviours (such as prioritising substance use over occupational, social or family commitments). This is supported by the supplementary statement of Mr Wyborn, dated 2 February 2024. In paragraphs 13-15, he clearly stated that his cannabis use was not problematic, nor regular, prior to the injury. Furthermore, he had reduced his medicinal cannabis intake to 2g per day from 3g when we met, and 4g at its peak, as he outlined in paragraph 5. This pattern of use indicates declining dose requirement, rather than escalation (as one might expect had his purpose been to replace illicit cannabis with medicinal).”
Dr Hardy reiterated that the applicant described the benefits of medicinal cannabis as including improved functional capacity, improve pain on visual analogue scale and improved sleep.
With regard to Dr Gorman’s opinions with respect to the applicant’s age, Dr Hardy commented:
“Mr Wyborn sustained a serious injury as a young man. Consequently, he has been treated with opioids, anti-depressants and anti-neuropathic medications. He had stem cells injected and a surgical debridement of his jaw. He then proceeded to a TMJ replacement. His injuries have necessitated treatment beyond what one would normally see in a young male in his 20’s. Despite this, he reported a pain score of 8- 9/10, falling to 4-5/10 prior to cannabis, but falling to 0-4/10 with cannabis. At his young age, but for the workplace injury, he would not have normally required this extensive suite of medical and surgical treatments. The use of opioids in this man’s demographic is of greater concern than cannabinoids. The risk of tolerance, hyperalgesia, dependence, overdose and death is higher among opioid patients than medicinal cannabinoid patients. After the seriousness of his injury and his treatments, that we can argue that Mr Wyborn is not too young for any treatment. This is especially true for treatments he has found to be helpful.”
Dr Hardy reiterated his view that there was no other more suitable alternatives which could provide the same benefits the applicant reported from medicinal cannabis treatment.
With regard to the cost of the treatment, Dr Hardy commented,
“Mr Wyborn’s treatment requirement has reduced to 2g daily (60g per month). The cost of cannabis flower/herb treatments is reducing over time. The two flowers he nominated in his supplementary report, dated 2 February 2024, are both of low cost, compared to market competitors. The Cornerfield Glueberry is approximately $80 for 15g. The Pharmacann Biocann Sour Chocolate Diesel is $88 for 15g. The Tasmanian Botanics oral oil is $79 per 30ml bottle. Assuming his requirement is 2 containers of each of the flower/herb each per month and one container of oral liquid, the monthly cost of treatment is approximately $415 per month. This is a vast improvement on the costs for treatment one year ago. Comparing cost with outcome, this is the most cost effective treatment he has had.”
Dr Hardy reiterated his view that the treatment was reasonably necessary and a direct result of the injury sustained in the course of employment with the respondent.

Medical Assessment Certificate

Medical Assessor, Dr Glen Sheh referred to and made comment on the materials before him including that Dr Pezzullo had not been aware of the applicant having a formal diagnosis of substance abuse disorder. He was only aware of the psychiatric history of ADHD and post-traumatic stress disorder but not OCD. Dr Sheh noted that in his most recent statement the applicant had indicated that he did not need psychological treatment and was not experiencing psychological symptoms.
During his examination of the applicant, Dr Sheh took a history of the injury, symptom progress and treatment. The applicant’s current symptoms of pain included a constant throbbing and dull ache in the right jaw associated with numbness. Talking, eating and all types of muscle tension and straining aggravated the jaw pain. Sleep disturbance was reported. The applicant also reported left mid back pain aggravated by movement.
Under the heading, social history, Dr Sheh recorded,
“At age 18, he had smoked marijuana on a few occasions. At age 17, he tried ‘mushroom’ once. He denied other illicit drug use history; I asked specifically about any previous use of amphetamine, cocaine or heroin, his answers were ‘No’. He has not drunk alcohol for some time; binge drinking previously. He used to smoke up to half a pack of 25 cigarettes per day for 5 years; last smoke 2 years ago.”
Dr Sheh commented on his findings on examination noting the applicant was generally polite with good mood and affect. There was, however, a short outburst when the applicant became verbally aggressive with some swearing when Dr Sheh put forward the poor scientific evidence of the use of medicinal cannabis in the treatment for chronic pain and raised concern about him not having a pain specialist.
Dr Sheh diagnosed right jaw pain attributable to pain sensitisation precipitated by the dislocation of the temporomandibular joint. The injury led to multiple surgeries the last being a temporomandibular joint replacement. Trigeminal nerve injury was probable. The applicant had left back pain, short duration of post-traumatic stress disorder, personality vulnerability with prolonged exposure to neuro stimulant in childhood and mixed emotional involvement. Dr Sheh found previous substance use but not substance use disorder. The applicant had a chemical coping strategy and fixated mindset of the efficacy of THC.
With regard to the consistency of presentation, Dr Sheh observed:
“Most history are consistent. Mr Wyborn was preoccupied by the efficacy of the medicinal cannabis containing mainly THC but minimal CBD. He was adamant that his pain and function have been so much better after the commencement of medicinal cannabis. In fact, his physical functions remain poor. He is reliant of the herb which contains mostly THC and gets the benefit from vaping. He confirmed he is happy with the CBD which unfortunately was expensive. Without the access to QScript, I cannot ascertain the dispensing history and clarify his usage.”
Dr Sheh observed that multidisciplinary pain management with a pain medicine physician was missing from the applicant’s treatment regime and psychological overlay was significant. Chemical coping was also significant in the applicant’s case. Dr Sheh observed:
“With this complex scenario, based on the current guideline of the Faculty of Pain Medicine, the use of medicinal cannabis is not endorsed in the treatment of chronic non-cancer pain.”
Dr Sheh summarised a body of medical literature on the use of cannabis for pain control. Dr Sheh noted that on 3 March 2024 the Faculty of Pain Medicine of the Australian and New Zealand College of Anaesthetists issued a media release urging doctors not prescribe medicinal cannabis unless it is part of a registered clinical trial. A number of reports indicated a lack of sufficient evidence to endorse the use of medicinal cannabis to treat pain.
One study showed that only one person in 22-26 treated with medicinal cannabis would get significant pain relief. There was significant potential for adverse effects including reduced physical function, demotivation, tolerance, depression, paranoia, psychosis and loss of intellectual capacity. There was some evidence for improvements in sleep patterns with medicinal cannabis treatment but no significant difference in overall physical functioning.
Dr Sheh observed that the applicant appeared to have been compliant with the medication prescription by Dr Pezzullo. Dr Sheh described the choice of treatment as “legitimate” and prescribed by a registered doctor.
Dr Sheh concluded:
“Based on the facts of Mr Wyborn’s compliance with the use of prescribed medication, cessation of opioid therapy and neuro-stimulant (dexamfetamine), and the intractable pain being consequential to the work injury, his medicinal cannabis expenses claim should be considered as reasonable.”
Dr Sheh recommended some changes to the applicant’s treatment regime:
“Inevitably, an intensive multidisciplinary pain management education should be considered. Should his treating doctor have no choice but to continue the use of medicinal cannabis as to accommodate the complex medical and psychological need of My Wyborn, the form of medicinal cannabis and the CBD:THC ratio warrant some changes. Continuation of medicinal cannabis with a high percentage of THC via vaping puts My Wyborn at high risk of adverse effects and medical complication. Higher percentage of CBD to THC via oral route is more commonly prescribed should medicinal cannabis be considered as appropriate. Vaping has been identified as a concern. Of late, research shows that vaping allows tiny particles to be inhaled deep into the lungs. These chemicals can cause inflammation, cell death, scarring and DNA damage. The information can be found on the website of Cancer Institute NSW.”

Respondent’s submissions

The respondent referred the Commission to the Medical Assessment Certificate (MAC) noting that the reasoning was hard to follow. The respondent submitted that there was no reference to Dr Gorman’s supplementary report, only the materials attached to the Reply. The respondent described this as a fundamental defect in the MAC. Dr Sheh had not considered a critical cornerstone of the respondent’s case.
The respondent submitted that it was hard to understand how or why Dr Sheh had reached the conclusion that the treatment was reasonably necessary. There was a gap in the Medical Assessor’s reasoning. The applicant’s pre-existing history of ADHD and substance abuse, which was critical to good Dr Gorman’s and Dr Bisht’s opinions, was not properly considered.
The respondent observed that none of the applicant’s medical experts addressed the potential adverse effects of the treatment. Dr Gorman considered that the applicant’s use of medicinal cannabis was as a replacement for his illicit cannabis use rather than to ease the effects of his work injury.
The respondent observed that the cost of the treatment was a relevant consideration having regard to the relevant authorities. Dr Gorman disagreed that the costs of anti-neuropathic medication was comparable to medicinal cannabis.
Dr Gorman appeared to agree that it was reasonable to go outside the guidelines in appropriate circumstances, but he did not consider that it was appropriate in the applicant’s situation having regard to his young age, past psychiatric history and history of past substance abuse disorder. Dr Gorman’s approach was appropriately cautious whereas Dr Hardy’s opinion was less cautious and less considered.
Dr Gorman considered that the benefits the applicant had experienced from the medicinal cannabis treatment were related to his pre-existing ADHD condition and maintenance cannabis for his pre-existing substance abuse disorder. Knowing the poor effectiveness of medicinal cannabis as an analgesic agent, Dr Gorman did not consider that it was being predominantly used to treat the work injury.
The respondent submitted that simply because the applicant described feeling better off taking medicinal cannabis that did not mean the treatment was reasonably necessary. The complex presentation had to be unravelled. The Commission had to determine what the medicinal cannabis was treating.
The respondent submitted that Dr Pezzullo did not engage with this question at all. He simply indicated that the applicant had tried the treatment and was better. Dr Hardy had done the same.
The Medical Assessor’s opinion constituted a huge leap from concern and caution to an acceptance of the treatment being reasonably necessary in the applicant’s case.
The respondent submitted that the Commission could not be satisfied that the positive impact of the medicinal cannabis treatment was through its effect on the work injury, noting the treatment’s poor effectiveness as an analgesic. The reported improvements related to the applicant’s previous psychological conditions. The Commission would place limited weight on the MAC.

Applicant’s submissions

The applicant submitted that the suggestion that medicinal cannabis was being used to treat the applicant’s ADHD was not based on facts or evidence. The applicant had disclosed his previous condition.
Although the Medical Assessor did not refer to Dr Gorman’s supplementary report that did not mean he did not consider it. Dr Sheh was clearly aware of the supplementary report from Dr Hardy. The Medical Assessor was at pains to list the reasons for and against the conclusion he reached.
The applicant noted that in his second statement, the benefits of the medicinal cannabis treatment were described. This was powerful evidence. The applicant also disclosed his prior recreational drug use.
The applicant submitted that if he obtained a benefit by reference to his ADHD condition from the use of medicinal cannabis that did not preclude the treatment being reasonably necessary for the treatment of his injury also.
The applicant submitted that although the cost of the treatment was relevant it was not an overriding consideration given the unsuccessful trials of other treatment and the significant benefits obtained from the medicinal cannabis treatment.
The applicant submitted that the Commission would give great weight to the treating practitioner’s opinion.
The applicant submitted that Dr Gorman’s opinion stood on its own. All of the other evidence was supportive of the claim.
The applicant submitted that Dr Sheh’s recommendation for a script review and pain management program did not indicate that there were alternative treatments available. Rather that they ought to be considered in conjunction with the medicinal cannabis treatment. The applicant had undergone psychological treatment including cognitive behavioural therapy which would be a large component of a multidisciplinary pain program, without significant benefit.

Respondent’s submissions in reply

The respondent observed that both Dr Gorman and Dr Scurrah took a history of significant prior drug abuse. The treating records were consistent with that history. The records from Headspace revealed excessive use of recreational cannabis and use of LSD.
The respondent submitted that although these records referred to the period after the injury, they demonstrated that the applicant’s evidence significantly downplayed his drug use. The Commission would take the applicant’s evidence with regard to his pre-injury drug use with a grain of salt.
Little detail was available as to the nature and duration of any previous pain management or psychological treatment.
Dr Sheh raised similar concerns to those expressed by Dr Gorman and Dr Bisht with regard to the way treatment had been proposed and administered to date. Even if the Commission was satisfied that medicinal cannabis treatment was appropriate or reasonably necessary, the Commission would not be satisfied that the way it has been administered to date was appropriate. The Medical Assessor used very cautionary language. A pain management approach was required.

FINDINGS AND REASONS

Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
What constitutes reasonably necessary treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[1] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[1] (1986) 2 NSWCCR 32 (Rose).
Further, his Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[2] and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[2] [1997] NSWCC 1.
In Diab v NRMA Ltd,[3] to which the parties have referred in these proceedings, Roche DP provided a summary of the relevant principles as follows:
[3] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[4]
[4] At [88] to [90].

Deputy President Roche commented further:[5]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[5] At [86].
There is no doubt that the applicant in this case sustained a very significant injury that, nine years on, continues to be symptomatic. The applicant’s symptoms include jaw pain and numbness and difficulty eating, talking and performing physical activity which aggravates the jaw pain. The applicant’s evidence identifies a number of consequential effects of his physical pain and restrictions including sleep disturbance, poor diet and functional limitations. The evidence before the Commission as to the applicant’s ongoing symptoms is broadly consistent.
It is apparent that the applicant has also at times suffered from psychological symptoms including post-traumatic stress disorder and depression as a result of the injury. The applicant has, however, in his more recent evidence denied any ongoing psychological effects of the injury.
The evidence before the Commission also demonstrates that the applicant has undergone an extensive range of treatments aimed at both his physical and psychological symptoms. This has included multiple surgical procedures, injections, physiotherapy, splinting, psychological and psychiatric treatment as well as the prescription of traditional medications.
I accept that the treatment to date has not been effective in alleviating all of the applicant’s symptoms and restrictions. In fact, the evidence suggests that the pharmaceutical regime previously prescribed was highly problematic. The applicant reported becoming heavily dependent on opioids and to have suffered significant psychological side-effects including suicidal ideation, depression and social withdrawal.
The applicant’s evidence in this regard is consistent with the pharmacy review report prepared by Mr Hijazi, although some questions have been raised around the reliability of the information contained in that report.
The evidence before me indicates that the applicant has successfully weaned himself off his pharmaceutical regime and is currently undertaking no treatment other than the medicinal cannabis regime prescribed by Dr Pezzullo.
The applicant reports experiencing significant benefits from the medicinal cannabis treatment with respect to his experience of pain and day-to-day functioning. The applicant’s account is broadly consistent with the clinical records from Dr Pezzullo, and the histories provided to the medicolegal experts involved in this case.
Notwithstanding the consistent histories with respect to injury and symptom progression, treatments to date, and the reported benefits of the medicinal cannabis treatment, the experts involved in this case have reached vastly different views on the question of whether the treatment is reasonably necessary as a result of the work injury.
One of the primary points of difference is the experts’ differing views of the applicant’s prior use of recreational cannabis and other illicit drugs and alcohol. A relatively detailed history of the applicant’s substance use is recorded in the initial report from Dr Hardy. Dr Hardy has not, however, engaged with the evidence of significant recreational cannabis use described in the clinical records from Headspace. Those notes showed that in early 2016, the applicant was smoking cannabis and using LSD. The applicant reported being unable to sleep at all if not intoxicated with cannabis. On 29 March 2016, it was recorded that the applicant was consuming $400 per week of cannabis which the applicant acknowledged was way too much.
It is not apparent that the extent of the applicant’s post-injury illicit cannabis use was fully disclosed to either Dr Pezzullo or Dr Hardy. In his initial consultation notes, Dr Pezzullo recorded that the applicant denied a history of substance use disorder or use of drugs of dependence. Although in his most recent report for the applicant’s solicitors, Dr Pezzullo recorded that he was aware that the applicant had previously used cannabis he was not aware of any substance abuse disorder.
Dr Hardy’s history noted the occasional use of cannabis commencing at the age of 18 prior to the injury. Dr Hardy appears to have been aware that the applicant recommenced cannabis use mixed with nicotine after the injury, but he makes no reference to the excessive use of cannabis described in the Headspace clinical records.
Both Dr Scurrah and Dr Bisht, who prepared reports in connection with the applicant’s claim for compensation for permanent impairment resulting from his psychological injury appear to have been aware of the excessive post-injury cannabis use. Both have described a cannabis use disorder or history of polysubstance abuse. At the time of Dr Scurrah’s report in mid-2019, the applicant continued to smoke 5 to 10 joints per day on a weekend.
The applicant’s statement evidence does not address his cannabis use in the period after the injury but prior to the commencement of medicinal cannabis. The applicant’s most recent evidence only addressed his occasional use of cannabis and alcohol prior to the injury. The applicant denied being a habitual user or abuser.
This significant omission in the applicant’s lay and medical evidence raises questions both as to the reliability of the applicant’s own evidence and whether there is a proper factual foundation for the medical opinions on which he relies.
Dr Bisht, who appears to have had a more complete history of the applicant’s previous cannabis use expressed the view that medicinal cannabis was not appropriate in the applicant’s circumstances, particularly having regard to the pre-existing cannabis use disorder.
There is some question as to the accuracy of Dr Gorman’s history of cannabis use insofar as he appears to have understood that cannabis “abuse” dated back to the period soon after the applicant finished high school. This is denied by the applicant and there is no clear evidence to suggest that the applicant’s use of cannabis and other substances was excessive prior to the injury. Nonetheless, the applicant’s previous cannabis dependence was identified as a one of the reasons why medicinal cannabis was considered inappropriate in the applicant’s circumstances.
Amongst the other reasons identified by Dr Gorman as to why cannabis use was not appropriate in the applicant’s circumstances was his previous psychiatric history.
The applicant’s evidence discloses pre-injury diagnoses of ADHD and OCD. Dr Bisht identified that cannabis had the potential to worsen the applicant’s ADHD, although this view does not appear to have been shared by either Dr Pezzullo or Dr Hardy.
I accept, however, that Dr Pezzullo does not appear to have been in possession of a complete psychiatric history. His initial consultation records noted that the applicant denied any history of mental illness. Dr Pezzullo also confirms that he was not aware of the applicant’s OCD diagnosis in his most recent report.
Dr Hardy does appear to have had a complete psychological history. He has provided persuasive reasons as to why that history did not present a barrier to the applicant’s use of medicinal cannabis. There is nothing in the evidence before me to suggest that the applicant’s pre-existing conditions have in fact been worsened by his use of illicit or medicinal cannabis over the course of many years.
Dr Gorman expressed the view that the applicant’s current use of cannabis was directed at addressing his pre-existing ADHD and perpetuating his substance abuse disorder. As I have indicated above, there is no evidence before me to confirm that the applicant in fact had a substance abuse disorder prior to the work injury, although I am satisfied that one developed after the injury from early 2016 onwards.
The applicant may well experience a beneficial effect from the medicinal cannabis that is directed at these conditions. I am not satisfied, however, that this circumstance necessitates a conclusion that any benefit from medicinal cannabis is not directed at the effects of the work injury.
The applicant’s evidence, the evidence of his treating doctor and that given by Dr Hardy all indicate that the applicant has experienced a considerable reduction in symptoms of pain and restriction at his jaw during the periods in which he has had access to the full medicinal cannabis regime prescribed by Dr Pezzullo.
This evidence of a reduction in physical symptoms through the use of medicinal cannabis is not adequately addressed by Dr Gorman. Rather his focus has been on the conclusions of various medical studies as to the effectiveness of medicinal cannabis in treating chronic pain. I accept that those studies to which Dr Gorman refers suggest that medicinal cannabis is not as effective as an analgesic agent. The applicant’s actual experience of a reduction in pain and disability is, however, a compelling consideration.
The applicant’s relatively young age was another factor highlighted by Dr Gorman as weighing against the use of medicinal cannabis in this case. The applicant is at the time of this decision, 27 years old. Dr Hardy has responded to Dr Gorman’s concerns and provided persuasive reasons as to why the applicant’s age would not present a barrier to the appropriate use of medicinal cannabis.
The cost of the medicinal cannabis treatment is another relevant consideration. I accept that the cost of medicinal cannabis treatment far exceeds the cost of traditional pharmaceutical treatments. Such treatments have, however, already been attempted and were ineffective in treating the applicant’s symptoms and accompanied by seriously undesirable side-effects. I am not satisfied that anti-neuropathic medications, anti-inflammatory drugs or strong opioid analgesics constitute appropriate alternative treatments in the circumstances of this case.
The considerations outlined above have been traversed by the Medical Assessor, Dr Sheh. Although Dr Sheh’s reasoning was criticised by the respondent as difficult to follow and poorly explained, in my view this is simply a reflection of the complexities and competing considerations arising in this case.
It is unfortunate that Dr Gorman’s supplementary report has not been specifically addressed in the medical assessment certificate. I am not satisfied, however, that the considerations raised by Dr Gorman have been disregarded by Dr Sheh in reaching his ultimate conclusion.
Dr Sheh clearly identified the applicant’s pre-injury psychiatric history and referred to the polysubstance abuse diagnosis given by Dr Scurrah. Although Dr Sheh had the clinical records from Headspace before him, he did not make specific reference to the excessive cannabis use recorded therein. Although Dr Sheh was not satisfied that there was a previous substance use disorder, he did accept that the applicant had previously adopted chemical coping strategies and that this constituted a particular vulnerability in the circumstances of the applicant’s case.
Dr Sheh referred to medical literature which was consistent with that relied upon by Dr Gorman and Dr Bisht. Dr Sheh also acknowledged the particular vulnerabilities of younger age groups, and the negative side effects associated with medicinal cannabis treatment.
Dr Sheh also identified other factors weighing against a conclusion that medicinal cannabis was appropriate in the circumstances of the applicant’s case including, a significant psychological overlay and fixated mindset as to the efficacy of THC.
Dr Sheh acknowledged that in this complex scenario, the guidelines of the Faculty of Pain Medicine did not currently endorse the use of medicinal cannabis in the applicant’s circumstances.
Dr Sheh, in my opinion, adopted an appropriately cautious approach in conducting his assessment.
Despite the presence of numerous and compelling factors weighing against the conclusion that medicinal cannabis treatment was reasonable in the applicant’s case, Dr Sheh ultimately concluded that it was.
The primary factors leading Dr Sheh to this conclusion were the fact that the applicant had been compliant with the regime prescribed by Dr Pezzullo. The medicinal cannabis was prescribed by a registered doctor. The applicant had been able to cease his use of opioid therapy and other prescribed medication. The applicant’s intractable physical symptoms consequential to the work injury and the reported beneficial effect of the medicinal cannabis treatment on those symptoms was also identified as a factor leading Dr Sheh to conclude that the treatment should be considered reasonable.
Dr Sheh did identify a lacuna in the applicant’s treatment program to date in so far as there was no evidence of referral to a pain medicine physician or intensive multidisciplinary pain management program. I accept that these constitute appropriate alternative forms of treatment which have not yet been trialled.
As the authorities referred to above indicate, the availability of alternative treatment does not lead to the inevitable conclusion that the proposed treatment is not reasonably necessary. Dr Sheh did not suggest as much and he appears to have recommended such treatment be considered concurrently and potentially with a view to reducing the applicant’s reliance on medicinal cannabis.
Similarly, Dr Sheh identified a number of concerns as to the form of medicinal cannabis consumption. Continued use of medicinal cannabis with a high percentage of THC consumed by vaping was identified as presenting a high risk of adverse effects and medical complications.
Although I accept that Dr Sheh raises a number of valid questions as to the appropriateness of the applicant’s ongoing use of medicinal cannabis, he has accepted that the applicant’s past and current use of the treatment is reasonable.
I have carefully weighed the evidence and submissions before me. The dispute which I am tasked with resolving is finely balanced and one in respect of which minds might legitimately differ.
Aspects of the applicant’s evidence are problematic and I have given particular consideration to the omissions in his evidence with regard to his post injury use of illicit cannabis. The evidence before me does, however, suggest that the applicant has been able to titrate his medicinal cannabis consumption. He denies any concurrent illicit cannabis use.
Ultimately, I have found the opinion of the Medical Assessor persuasive. Weighing it against the evidence presented by the applicant and the respondent I am satisfied that the medicinal cannabis treatment undertaken to date has been appropriate for the treatment of the physical consequences of the applicant’s work injury.
While I accept that there is an un-trialled alternative treatment available in the form of multidisciplinary pain management, numerous other treatments, including components of a pain management program have been trialled without lasting benefit or with significant negative side effects.
The cost of the treatment is significant but balanced by the benefits the applicant has derived from it.
There is a body of treating and expert evidence which indicates that the treatment has actually been effective in the applicant’s case notwithstanding the body of evidence indicating that medicinal cannabis is generally ineffective as an analgesic agent in most cases.
The applicant’s treating doctor, his expert and the Medical Assessor have agreed that the treatment is appropriate in the particular circumstances of the applicant’s case.
Upon weighing these considerations, I am satisfied, on the balance of probabilities, that the applicant’s past and current medicinal cannabis treatment is reasonably necessary as a result of the injury pursuant to s 60 of the 1987 Act.
I am unable to determine whether such treatment will continue to be reasonably necessary into the future, particularly in light of the concerns identified by Dr Sheh.
As a result, there will be an order for the respondent to pay the incurred expenses claimed to date and an order for the respondent to pay the applicant’s continuing medicinal cannabis expenses so long as they continue to satisfy the requirements of s 60 of the 1987 Act, upon production of accounts and/or receipts.

[2024] NSWPIC 366

9 July 2024