Citation:  French v Harwood Slipway Pty Ltd & others [2022] NSWPIC 473 (25 August 2022)

Date of decision: 25 August 2022

In another recent decision the Personal Injury Commission has confirmed that the prescription of medicinal cannabis satisfied section 60 of the Workers Compensation Act 1987 (1987 Act).

Section 60 of the 1987 Act reads:

• If, as a result of an injury received by a worker, it is reasonably necessary that-
• Any medical or related treatment (other than domestic assistance) be given, or
• Any hospital treatment be given, or
• Any ambulance service be provided, or
• 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 of service and the related travel expenses specified in subsection (2).

Background

The Applicant, Mr Riley French, was working for the Respondent, Harwood Slipway Pty Limited as an apprentice boat builder. On 20 July 2009, Mr French injured his back in the course of his employment. The Respondent accepted liability for his workplace injury, and he received weekly benefits.

Mr French was subsequently assessed at 5% whole person impairment and the parties entered into a complying agreement in 2011.

In 2020, Mr French’s treating doctor prescribed him medical cannabis to treat his ongoing back symptomology. By way of Section 78 Notice, the Respondent declined liability for medical cannabis, citing section 60 of the 1987 Act.

The matter was heard in the Personal Injury Commission with Member Gaius Whiffin presiding.

The Applicant provided medical evidence indicating that his back pain had been chronic and severe since his date of injury. He found that medical cannabis eased his back pain as well as helped his secondary depression and anxiety which stemmed from his chronic pain. Mr French believed it to be more effective than the myriad of other medications he had been prescribed and did not have the same negative side effects.

The Respondent submitted that medical cannabis does not meet the criteria of ‘reasonably necessary’ quoting the authorities of Honarvar  v Professional Painting AU Pty Limited [2022]NSWPICPD 12 and Rose v Health Commission [2014] as well as the Faculty of Pain Medicine of the Australian and New Zealand College of Anesthetists. The report indicates that there is too little medical literature on the effectiveness of cannabis as well as the long-term impacts of use for pain treatment.

Decision

Member Gaius preferred the evidence provided by the Applicant, namely that his statement was consistent with his qualified doctor’s opinion that the medical cannabis had significantly aided his back symptoms. Further, he believed that the Respondent’s independent medical examiner had ignored the therapeutic benefit that the drug has had on the Applicant with regard to a reduction in pain and his secondary psychological symptoms.

Accordingly, so long as the prescription of medical cannabis is obtained through the Therapeutic Goods Administration, it can be said to be reasonably necessary for chronic pain.

The Commission ordered the Respondent to pay the Applicant’s medical expenses costs associated with the prescription of medical cannabis.

Lesson for Employers and Insurers

In this instance, it was found that medical cannabis was reasonably necessary to treat pain. The reasonable necessity of prescription medical cannabis remains very much a case-by-case basis and will depend on a variety of factors to determine whether it is appropriate for an injured worker.  If a claim is made, Insurer’s should request detailed statement and medical evidence addressing the reported benefits of the claimed treatment, including records from treating doctors chronicling the actual benefits reported and whether they have improved mobility and function.

Contributor: Sophie McClellan

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.