Doobie or Not to be – Whether Medicinal Cannabis Treatment is Reasonably Necessary

Bladen v Mad Mile Empire Pty Ltd [2024] NSWPIC 4 (8 January 2024)

The Applicant was employed by the Respondent as a Sales Representative. He suffered a left knee injury while passing a football with his colleagues at a work function on 20 August 2022. Liability was accepted for a left knee dislocation and multi-ligament injury.

The Respondent disputed invoices for medicinal cannabis treatment as claimed by the Applicant under Section 78 of the WIMA 1998. The Applicant commenced proceedings in the PIC, seeking compensation pursuant to Section 60 in respect of $19,860.00 of medicinal cannabis treatment between October 2022 and August 2023.

The law

Section 60 of the Workers Compensation Act 1987 provides that if, as a result of an injury received by a worker, it is reasonably necessary to provide medical or related treatment (other than domestic assistance) be given, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service.

The case law surrounding the provision of medicinal cannabis under Section 60 is conflicting. In the recent decision of Bliss v State of New South Wales [2021] NSWPIC 269 (Bliss) it was found that medicinal cannabis was reasonably necessary, representing the growing acceptance toward the use of cannabis as medical treatment.

However, in the Judgements of Donnelly v Camsons Pty Ltd [2021] NSWWCC 19 and Couch v Electus Distribution Pty Limited [2023] NSWPICPD 8, it was determined that medicinal cannabis was not reasonably necessary when considered in light of the Diab criteria: per Diab v NRMA Ltd [2014] NSWWCCPD 72 (“Diab”).

Issues for determination

The sole issue for determination in this instance was whether the treatment expenses relating to medicinal cannabis were reasonably necessary as a result of the injury on 20 August 2022 pursuant to Section 60 of the 1987 Act.

Submissions and Decision

The Applicant submitted that:-

• The primary purpose of the medicinal cannabis treatment was noted to alleviate his insomnia and pain.
• His use of medicinal cannabis treatment was justified on the basis that he had trialed a number of different pain-relieving medications, none of which had provided lasting benefit.
• He was referred for medicinal cannabis by his GP, Dr Yip, to a cannabis clinic called MiDispensary.

The Respondent submitted that:-

• The path leading to the prescription of medicinal cannabis was murky, and that it was not apparent whether Dr Yip had referred the Applicant.
• It was difficult to see how other treatments prescribed could have failed and there was evidence of improvement with such treatment.
• The cost of the treatment was excessive and difficult to justify (treatment expenses paid by the Insurer had totalled approximately $20,000. The medicinal cannabis treatment claimed was an additional $18,000).

In reaching her decision, Member Rachel Homan referenced the following case law:-

• In the case of Rose v Health Commission [1986] NSWCC 2; (1986) 2 NSWCCR 32, Burke CCJ considered what constituted a reasonably necessary treatment. Burke CCJ found that if treatment cannot, in reason, be found to have the purpose of alleviating, curing or remedying the condition and restoring health, then it cannot be reasonable treatment of the condition. Burke CCJ noted that the evidentiary onus was on the party seeking to rebut the reasonable presumption, and Member Homan accepted that notion.

Burke CCJ referred to the decision of Bartolo v Western Sydney Area Health Service [1997] NSWCC 1, which provided a simplified approach: if the patient should not do without the treatment, then it satisfies the test of being reasonably necessary. Member Homan did not accept that approach, citing that it was not so simple to ask that question.

• In the decision of Diab, Roche DP outlined factors for consideration of reasonably necessary medical treatment under Section 60:
  • The appropriateness of the treatment;
  • The availability of alternative treatment;
  • The cost of the treatment;
  • The actual or potential effectiveness of the treatment;
  • The acceptance by medical experts of the treatment as being appropriate and likely be effective.

In that instance, it was also established that the worker does not have to establish treatment is reasonable and necessary, only reasonably necessary (which is a less demanding test). A range of treatments may qualify as reasonably necessary.

In light of the above, Member Homan made the following findings:-

• There is no doubt that the Applicant sustained a significant injury to his left knee on 20 August 2022 and required two surgical procedures alongside extensive rehabilitation. The Applicant has endeavored to rehabilitate his knee and has been successful in returning to employment.
• Member Homan found that the medications described by the Applicant were mainly prescribed during his hospital admission and in the immediate aftermath of his first surgery. Member Homan found that Dr Yip’s clinical records did not suggest that the Applicant was recommended, or referred for, the use of medicinal cannabis. Member Homan found that there was little variation in the treatment regime prescribed by the Applicant’s GP following the injury.
• The Applicant failed to provide sufficient evidence to indicate the effects of conventional medicinal treatments or the appropriateness of the medicinal cannabis treatment.
• The clinical records from the Applicant’s medicinal cannabis provider, MiDispensary, indicated that the treatment regime was not without its own problems. The clinical notes suggested that the Applicant found certain prescriptions provided minimal benefit. The Applicant noted increased anxiety, palpitations, and a lack of analgesic effect. It was also found that the availability of certain prescriptions was noted to be problematic.
• Member Homan concluded that the actual effectiveness of the treatment, in comparison to the other treatment prescribed by the Applicant’s treating doctors, remained unclear on the totality of the evidence. Member Homan also noted that the cost of the treatment was considerable and appeared excessive. Member Homan was not satisfied that alternative and potentially effective treatments, at a far less significant cost, were not available to the Applicant. The Applicant had not discharged his onus.
• There is therefore an Award in favour of the Respondent.

Implications

This decision demonstrates that, despite the Court’s growing acceptance of medicinal cannabis as an effective form of treatment as demonstrated in cases such as Bliss, the test of whether medical treatment is reasonably necessary continues to be a matter which must be determined on the individual merits of each case.

Should you have any queries concerning a workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.