Is Medicinal Cannabis ‘Reasonably Necessary’ in Workers’ Compensation Claims?

In the past month or so there have been four determinations in the Personal Injury Commission (PIC) as to whether medicinal cannabis is ‘reasonably necessary.’

It is our view that the PIC is in many ways a barometer for what is being focused on in the industry. This volume of decisions in the PIC affirms what many practitioners will notice; that medicinal cannabis is considered by insurers to be what Member Mitchell Strachan described as ‘controversial’ and ‘novel’ and tending to be disputed.

Each case has its own important background and of course each case also turns on its own facts, but we notice that in all four of the cases the PIC Member found that the disputed medicinal cannabis was ‘reasonably necessary.’

It is worth having a look at the considerations for what makes treatment in general ‘reasonably necessary,’ what led the treatment providers in the PIC cases to refer for medicinal cannabis and why the PIC ultimately accepted that medicinal cannabis was ‘reasonably necessary.’

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What the Act says about treatment generally‍

Section 60(1) of the Workers Compensation Act 1987 provides concerning liability for treatment:

(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,

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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

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What the case law says about treatment

The relevant matters for consideration as to whether treatment like medicinal cannabis is “reasonably necessary” come from the decision of his Honour Judge Burke in Rose v Health Commission (NSW), echoed by Deputy President Roche in Diab v NRMA Ltd [2014] NSWWCCPD 72:

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.

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We notice that in all four of the cases discussed below that the Members carefully addressed how the ‘reasonably necessary’ test was met with Member Wynyard specifically addressing them individually under helpful headings.

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Why medicinal cannabis was recommended in the PIC cases?

In the decision of Faint v Elam Communications Pty Ltd [2024] NSWPIC 377 (12 July 2024) (Faint), there was limited information available from the prescribing doctor about why medicinal cannabis was prescribed but it seems to be related to addressing the presence of chronic pain (paragraph 62) on a background of lumbar and cervical fusions.

In the decision of Gillard v State of New South Wales (New South Wales Police Force) [2024] NSWPIC 375 (11 July 2024) (Gillard), the treating sleep physician recommended medicinal cannabis recorded at paragraph 36:

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“Insomnia and nightmare disorder in my opinion is a barrier to the successful treatment to her PTSD esp the good work that her Psychologist and Psychiatrist do. Therefore by treating her insomnia with medicinal cannabis will allow her to improve her daytime anxiety, panic attacks in the day, hypervigilance, focus concentration fatigue, memory and reduced trigger events that are debilitating and causes immense issues esp social isolation, difficulty to integrate in society and of course ability to return to some form of work.”

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In the decision of Westbrook v Batemans Bay Cool-it Pty Ltd [2024] NSWPIC 434 (13 August 2024) (Westbrook), it was recorded at paragraph 170 that the pain management specialist’s goal in prescribing medicinal cannabis:

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“…was to reduce pain scores, reduce analgesia requirements, and improve sleep, function, and mental health.”

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In the decision of Wyborn v St Andrew’s Village Ballina Ltd [2024] NSWPIC 366 (9 July 2024) (Wyborn), the nominated treating doctor was recorded at paragraph 53 explaining why medicinal cannabis was recommended:

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“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.”

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We see in these references a number of reasons why medicinal cannabis has been referred for, including addressing chronic pain (Faint), insomnia (Gillard), reducing pain scores and analgesia requirements, and improving sleep and mental health (Westbrook), with a number of these echoed in Wyborn.

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Why medicinal cannabis was accepted in the PIC

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In Faint, Member Mitchell Strachan stated at paragraph 92 that he was prepared to:

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“…accept the applicant’s evidence that the use of medicinal cannabis is providing significant pain relief. Pain relief is a sufficient basis for treatment to be reasonably necessary, it is not necessary that the treatment leads to a considerable increase in function or increase in capacity for employment for it to be reasonably necessary.”

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In Gillard, Member John Wynyard carefully went through all the aspects of the Diab test, including commenting at paragraph 124:

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“The treatment is to ameliorate one of the symptoms of her condition – her sleep disturbance. Ms. Gillard herself noticed the beneficial effect of this treatment, which I have referred to above.”

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In Westbrook, Member Kerry Haddock dealt with the ‘reasonably necessary’ test described in paragraphs 225-248, including of interest at paragraph 248:

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“Acceptance: the treatment had been accepted by medical experts across a broad range of disciplines. Whilst various bodies, including the Faculty of Pain Medicine, RACP, had published opposition statements, many pain specialists, physicians, psychiatrists, and GPs prescribed medicinal cannabis. Over 295,000 prescriptions were written between 2020 and 2022. It had been estimated that over 1,700 doctors prescribed medicinal cannabis in Australia.”

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In Wyborn, Member Rachel Homan expressed some concerns as to whether medicinal cannabis was ‘reasonably necessary,’ such as at paragraph 190:

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“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.”

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Ultimately, Member Rachel Homan found medicinal cannabis to be ‘reasonably necessary,’ accepting the evidence of a non-binding medical assessor Dr. Sheh recorded at paragraph 184:

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“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.”

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Despite the ‘controversial’ and ‘novel’ nature of medicinal cannabis, we can see in these decisions that the PIC is prepared to accept that the treatment can be ‘reasonably necessary.’

If you have had medicinal cannabis or any other kind of treatment disputed by an insurer and would like advice on your rights, please contact our team.

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