February 2021

Cannabis as medical treatment

The use of medicinal cannabis as a medical treatment, particularly with respect to pain, has seen an increase in popularity in recent years.  Examples include cannabis oil, oral spray and topical gels.

Owing to this increase in popularity, we are seeing more workers compensation claims for payment of medicinal cannabis as a medical treatment.

Is medicinal cannabis medical or related treatment?

The definition of medical or related treatment in the Workers Compensation Act 1987 (1987 Act) is fairly broad and includes ‘therapeutic treatment given by direction of a medical practitioner’ (section 59 of the 1987 Act).

Broadly speaking if medicinal cannabis is administered, prescribed or directed by a registered medical practitioner, it may be considered medical treatment within the terms of section 59 and compensable under section 60 of the 1987 Act.

Is medicinal cannabis reasonably necessary medical treatment resulting from the injury?

The next issue to consider is whether medicinal cannabis is reasonably necessary as a result of the subject injury.

As with any other type of medical treatment, this will turn on the specific facts of the case.

In Shaun Donnelly v Camsons Pty Ltd [2021] NSWWCC 19, the Workers Compensation Commission considered medicinal cannabis as a medical treatment.

The worker injured his left shoulder and arm in 2013 and received pain management treatment, including nerve blocks and opioid medication, without significant improvement in his pain.

A trial of medicinal cannabis was recommended because the worker was unhappy using opioids and concerned about addiction.  The treating pain specialist said medicinal cannabis was ‘significantly less harmful than the use of opioids’.

The insurer challenged the claim and relied on the opinion of a pain specialist, who referred to a position paper from the Australian and New Zealand College of Anaesthetists & Faculty of Pain Medicine and other papers from medical journals to support the contention the use of medicinal cannabis would not help reduce the worker’s opioid consumption.  Further the pain specialist felt the addiction to opioids may be “magnified by the addition of medicinal cannabis”.

The insurer also argued the use of medicinal cannabis could impede the worker’s rehabilitation because he would not be able to drive and he would be prohibited from working on a number of job sites.

The Arbitrator concluded it was likely the worker was addicted to opioids because the worker’s GP had expressed this view.  He preferred the evidence of the insurer's pain specialist who disclosed the risks associated with the use of medicinal cannabis including addiction, psychotic symptoms, structural brain changes, and cognitive impairment.

The Arbitrator was ‘unable to understand why the worker should be subjected to these risks, however minimal, when there is no compelling evidence the treatment proposed will be efficacious’. He accepted the insurer's medico - legal opinion that prescribing a potentially addictive new ‘medication’ could diminish the prospects of successfully withdrawing or reducing the worker's opioid medication consumption.

The Arbitrator also concluded the proposed medicinal cannabis treatment was not reasonably necessary because it would diminish the worker’s ability to drive and attend job sites while undertaking the treatment.  

He observed the worker should be offered the opportunity to undertake suitable employment at the earliest possible time because he had been out of the workforce for five years and ran the risk of remaining long term unemployed.

Summary

While medicinal cannabis is a new and evolving treatment modality, it will not be compensable in every case.  It is important to recognise and consider what the treatment is capable of achieving and why it is being prescribed or recommended, just like any other medical treatment for which compensation is claimed.  Medicinal cannabis is capable of meeting the definition of medical or related treatment in s 59 of the 1987 Act.

Leaving aside whether the treatment causally results from the work-related injury, when considering requests for medicinal cannabis, insurers should apply the usual investigations and analysis to test whether the proposed medical treatment is reasonably necessary.

A key question is whether the treatment maintains the worker’s health or slows or prevents its deterioration[1] and the following factors should be considered:[2]

  1. The appropriateness of the particular treatment;

  2. The availability of alternative treatment;

  3. The cost of the treatment;

  4. The actual or potential effectiveness of the treatment; and

  5. The acceptance by medical experts of the treatment as being appropriate and likely to be effective.

Despite medicinal cannabis being a new and possibly controversial treatment, the essential question remains whether the treatment is reasonably necessary as a result of the injury, and the answer to the question will depend on the facts and evidence presented in each case. 

Authors: Kate Ralph & Stephen Marsh

Contributing partner: Mick Franco 

 

[1] Casey v New South Wales Police Department (1999) 18 NSWCCR 592

[2] Rose v Health Commission (NSW) (1986) 2 NSWCCR 32