Under Workers Compensation legislation, an employer is liable to pay for an injured workers reasonably necessary medical expenses. The RMB Compensation Law Division explains, this may include new and evolving treatments like medicinal cannabis.
Personal Injury Commission case law has evolved to the extent that the reasonable necessity of medicinal cannabis is determined on a case-by-case basis and will depend on a range of factors depending on the circumstances of each individual injured worker.
In the matter of Donnelly v Camsons Pty Ltd [2021] NSW WCC 19, the Arbitrator in the Workers Compensation Commission (as it then was) found that the use of medicinal cannabis was not reasonably necessary having regard to various factors including the worker’s addiction to opioids (ruling that a new and potentially addictive medicine would hamperwithdrawal from the opioid medication); the balance between benefit and risks associated with medicinal cannabis including psychotic reactions, addiction, structural brain changes and cognitive impairment; and driving restrictions which would hinder a return to work.
The Arbitrator made it clear that the case had been determined largely by the particular worker’s history and circumstances.
Despite such decisions, the door remains open for injured workers to have medicinal cannabis approved as reasonably necessary treatment.
In French v Harwood Slipway Pty Ltd & Ors [2022] NSW PIC 473, the Personal Injury Commission confirmed that the medicinal cannabis was reasonably necessary treatment in that case.
Mr French argued that his chronic and severe back pain had been eased by the use of medicinal cannabis as had the secondary depression and anxiety which had arisen due to his chronic pain. He gave evidence that it had been more effective than the multiple other medications he had tried and did not have the negative side effects of those medications.
The Respondent relied on cases from 2014 and 2022 and research which indicated that there was insufficient medical literature addressing the effectiveness of medicinal cannabis or the long-term impacts of its use.
The Commission accepted the workers evidence that his symptoms had been significantly reduced by the use of medicinal cannabis.
These cases illustrate that decisions as to the reasonableness of medicinal cannabis vary according to the individual circumstances of each Claimant. Injured workers should remember that the Personal Injury Commission will consider new forms of medical treatment but will still make decisions in accordance with the essential requirements of the legislation and the facts and circumstances of each individual case.
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