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The use of medicinal cannabis as a medical treatment, particularly in relation to pain, has grown in popularity in recent years. Examples are cannabis oil, mouth spray, and topical gels.
Because of this increasing popularity, we are seeing more employee claims for compensation for medical cannabis than medical treatment.
Is medical cannabis a medical or related treatment?
The definition of medical or related treatment in the Workers Compensation Act 1987 (Law of 1987) is fairly broad, encompassing “therapeutic treatment directed by a doctor” (Section 59 of the 1987 Act).
When medical cannabis is administered, prescribed, or instructed by a registered physician, it can generally be considered medical treatment within the meaning of Section 59 and reimbursed under Section 60 of the 1987 Act.
Is medical cannabis a reasonably necessary medical treatment because of the injury?
The next thing to consider is whether medical cannabis is appropriately necessary because of the patient’s injury.
As with any other type of medical treatment, this will affect the specific facts of the case.
In Shaun Donnelly v Camsons Pty Ltd. [2021] NSWWCC 19, the Workers Compensation Commission, viewed medical cannabis as a medical treatment.
The worker injured his left shoulder and arm in 2013 and received pain treatment, including nerve blocks and opioid drugs, with no significant improvement in pain.
A trial with medicinal cannabis was recommended because the worker was dissatisfied with opioids and worried about the addiction. The treating pain specialist said medicinal cannabis was “significantly less harmful than the use of opioids”.
The insurer contested the claim, relying on the opinion of a pain specialist who cited a position paper from the Australian and New Zealand College of Anesthesiologists and School of Pain Medicine and other papers from medical journals to support the claim about the use of medicinal cannabis assisting would not help reduce the worker’s opioid use. The pain specialist also believed that addiction to opioids “can be increased by the addition of medicinal cannabis”.
The insurer also argued that the use of medical cannabis could hinder the worker’s rehabilitation because he cannot drive and is forbidden from working on a number of construction sites.
The arbitrator concluded that the worker was likely to be dependent on opioids as the worker’s GP had expressed this view. He preferred the evidence from the insurer’s pain specialist, who revealed the risks associated with medicinal cannabis use, such as addiction, psychotic symptoms, structural brain changes, and cognitive impairment.
The arbitrator was “unable to understand why the worker should be exposed to these risks, even if minimal, unless there is compelling evidence that the proposed treatment will be effective”. He accepted the insurer’s medical opinion that prescribing a potentially addictive new “drug” could reduce the worker’s chances of successful withdrawal or a reduction in opioid drug use.
The arbitrator also concluded that the proposed medical cannabis treatment was not adequately necessary as it would affect the worker’s ability to drive and visit construction sites during treatment.
He noted that the worker should be given the opportunity to take up suitable employment at the earliest possible opportunity, given the five years of unemployment and the risk of long-term unemployment.
Summary
Medical cannabis, while a new and evolving treatment method, cannot be compensated for in every case. It is important to recognize and consider what the treatment can achieve and why it is prescribed or recommended, just as it is with any other medical treatment for which compensation is sought. Medical cannabis may meet the definition of medical or related treatment in Section 59 of the 1987 Act.
Irrespective of whether the treatment was causally attributable to the work-related injury, when considering medical cannabis claims, insurers should use standard research and analysis to determine whether the proposed medical treatment is appropriately necessary.
A key question is whether the treatment preserves the health of the worker or slows or prevents its deterioration1 and the following factors should be considered: 2
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The appropriateness of each treatment;
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The availability of alternative treatment;
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The cost of treatment;
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The actual or potential effectiveness of the treatment; and
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Acceptance of treatment by medical experts as appropriate and likely effective.
Although medical cannabis is a new and potentially controversial treatment, the essential question remains whether treatment is adequately necessary because of the injury, and the answer to the question will depend on the particular facts and evidence presented.
Foonotes
1 Casey v New South Wales Police Department (1999) 18 NSWCCR 592
2 Rose v Health Commission (NSW) (1986) 2 NSWCCR 32
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.
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