The relevant governing provision for any medical treatment under the Workers Compensation Act 1987 (NSW) is section 60. Section 60 provides injured workers with access to certain medical treatment where that treatment is reasonably necessary.

In Donnelly v Camsons Pty Ltd [2021] NSWWCC 19, a worker fell from a ladder while washing trucks in 2013 and injured his left shoulder. The injured worker underwent two surgeries and treatment by two pain specialists before being referred to a further pain specialist for treatment. The third pain specialist recommended that the injured worker be consider for a trial of medical cannabis. Unsurprisingly, the insurer disputed that the treatment was reasonably necessary.

Arbitrator, Paul Sweeney of the Workers Compensation Commission (as it then was) found that the use of medicinal cannabis was not reasonably necessary having regard to the following:

  • It was likely that the injured worker was addicted to opioids after being prescribed them for a period of years and it was not clear that he had successfully overcome that addiction. It was most important that the injured worker be able to self-manage his pain and prescribing a potentially addictive new medicine would diminish the focus on his difficult process of withdrawal from the opioid treatment.
  • The balance of effectiveness and safety, noting that medical cannabis risks included addiction, psychotic symptoms, structural brain changes and cognitive impairment. Additionally, the injured worker would be excluded from driving and from attending job sites during his treatment which would affect his return to work.
  • While he accepted medical cannabis might assist the injured worker with his anxiety and sleep, there were other modes of treatment which could address such issues.

There is some good news however, with Arbitrator Sweeney leaving open the possibility of medicinal cannabis being a reasonably necessary treatment depending on the circumstances of the case stating that: “I have determined the case largely by reference to the applicant’s history and circumstances rather than the research attached to Dr Gorman’s [the insurer’s expert] report”. Although he did note that this finding was consistent with research in the report.

Key takeaway

While medicinal cannabis was not reasonably necessary in this case, there is the possibility that it may be a reasonably necessary treatment for others depending on their individual circumstances.

Written by Amy Gilford.

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