The subject of the appropriateness of such treatment under Section 60 of the Workers Compensation Act 1987 (NSW) is not a fresh concern and the Personal Injury Commission has been, and continues to, address the issue of appropriateness in relation to how much treatment is sensible under the Act and should be reimbursed to injured employees.
Pursuant to the Act and NSW Workers Compensation Scheme, the Insurer will pay for reasonably necessary medical expenses.
Need of Medical Cannabis
The unveiling of various and unique treatment schemes has progressed throughout time, and the Personal Injury Commission consistently considers all kinds of treatments that injured workers are attempting to fund, to manage their afflictions. Among these evolving treatment domains is the prescription of medicinal cannabis, which can aid not only in the management of persistent and severe pain, but also mental symptoms.
The Case of French v Hardwood Slip Way Pty Limited
On 25 August 2022, the matter of French v Hardwood Slip Way Pty Limited and others [2022] NSW PIC 473 was brought before the Personal Injury Commission. The commission addressed the issue of medical cannabis and its classification as reasonable treatment under Section 60 of the Workers Compensation Act 1987 (NSW).
Section 60 of the Workers Compensation Act 1987 (NSW) outlines the following provisions:
In cases where a worker sustains an injury that necessitates:
(i) The provision of any medical or related treatment (excluding domestic assistance),
(ii) The provision of hospital treatment,
(iii) The provision of ambulance services, or
(iv) The provision of workplace rehabilitation services,
The employer of the worker is responsible for covering the cost of such treatment or service, along with any associated travel expenses specified in subsection (2).
Commission’s Decision
The Commission decided in the favour of the client and affirmed that medical cannabis was reasonably necessary treatment in this matter.
The Saliant Point
Claim for medical treatment
Mr French was employed as an apprentice boat builder by Hardwood Slipway Pty Limited, the Respondent. On 20 July 2019, he sustained a back injury while working.
The claim was accepted, and Mr French received weekly compensation and lump sum entitlements.
In 2020, Mr French’s treating doctor prescribed medical cannabis to alleviate his ongoing back symptoms. However, the insurance company refused to cover the cost of the medical cannabis, deeming it unreasonable.
The Events in the Personal Injury Commission
During the proceedings before the Commission, Mr French presented medical evidence demonstrating that his back pain had been chronic and severe since the date of his injury. He stated that medical cannabis not only relieved his back pain but also helped alleviate his secondary depression and anxiety, which were a result of his chronic pain. Mr French emphasized that medical cannabis was more effective than other medications and treatments he had previously tried, and it had no adverse side effects.
The Respondent Insurer argued that the use of medical cannabis did not meet the criteria of being “reasonably necessary.” They cited the cases of Honarvar v Professional Painting Au Pty Limited [2022] NSW PIC PD 12 and Rose v Health Commission [2014], as well as the faculty of pain medicine of the Australian and New Zealand College of Anaesthetists. The Insurer relied on a report that highlighted the limited medical literature on the effectiveness of medical cannabis and its long-term impact on pain management, concluding that it could not be considered reasonable.
Decision
In his decision on behalf of the Commission, Member Gaius expressed a preference for the evidence provided by Mr French, particularly his statement and the supporting opinion of the qualified doctor. This evidence indicated that medical cannabis had significantly improved Mr French’s back symptoms. The Member also noted that the Insurer’s independent medical examiner had disregarded the therapeutic benefits of the drug on the worker in relation to the decrease of the pain and his mental symptoms.
The Personal Injury Commission (PIC) decided that the medical cannabis was reasonably necessary where it was obtained through prescription or via therapeutic administration. Therefore, in such circumstances the insurer is obliged to pay for such medical treatment as reasonably necessary.
No doubt the need of medical cannabis as reasonably necessary is determined through case-by-case basis and the fundamental factor involves whether it is suitable and appropriate treatment for the injured worker.
If you are having any present disputes in relation to workers compensation insurer regarding the reasonableness of treatment do not hesitate to contact Sher Legal.
