Longworth v Secretary, Department of Transport [2020] NSWWCC 52 (26 February 2020)

Summary

The Workers Compensation Commission has determined that the prescription of medicinal cannabis can fall within the definition of medical and related treatment for the purposes of section 59 of the Workers Compensation Act 1987 (‘the 1987 Act’).

The employer was ordered to pay the costs of the medicinal cannabis treatment to alleviate the pain associated with the worker’s injury.

Background 

The worker sustained a back injury on 28 March 2018 in the course of her employment as a driver trainer. The worker was injured whilst performing a driving test in which the learner driver applied the brake forcefully, causing the worker to be jolted suddenly in her seat. The worker sustained lower back pain as a result.

The worker claimed weekly compensation, which was approved by the insurer. The worker further claimed compensation in respect of lumbar fusion surgery and the prescription of medicinal cannabis under section 60 of the Act.

The insurer disputed the medical and related treatment claim on the basis that the surgery was not reasonably necessary as a result of injury, and that the prescription for medicinal cannabis did not fall within the definition of section 59.

Decision

The worker submitted that the prescription of medicinal cannabis fell within both subsections (a) and (b) of section 59 in that it was treatment provided by a medical practitioner, and was therapeutic treatment.

Arbitrator McDonald noted that the prescription for medicinal cannabis was provided by Dr Ferris, a medical practitioner, for the purpose of avoiding the side effects caused by other medication and to alleviate the worker’s pain.

In relation to the definition of ‘therapeutic’, the arbitrator turned to the Therapeutic Goods Act 1989 (Cth) which sets out that therapeutic use includes use in connection with alleviating the effects of injury. The medical evidence before the arbitrator specified that the treatment was prescribed to take the edge off the worker’s pain and allow her to sleep.

The basis of the employer’s submissions in relation to the medicinal cannabis was that the treatment was experimental, it was not registered, and the treatment was undergoing clinical trials. The employer submitted that the treatment could therefore not fall within the scope of the definition set out by section 59.

The arbitrator stated that a reading of the plain words of section 59 did not prevent a relatively new treatment from falling within its terms, noting that any new treatment might be described as experimental, yet later become widely used.

The arbitrator also pointed out that whilst the treatment was not registered; it was approved by both Commonwealth and NSW organisations specifically for the applicant’s treatment. She stated that the lack of registration was irrelevant given the fact that approval had been granted.

As to the issue of the treatment undergoing clinical trials, the arbitrator stated that this was not, of itself, reason to exclude the treatment from the definitions.

The arbitrator held that the prescription of medicinal cannabis was medical and related treatment and the employer was ordered to pay the costs of the treatment.

An order was also made that the proposed surgery was reasonably necessary.

Implications 

The fact of a treatment being relatively new, or undergoing clinical trials, does not preclude that treatment from falling within the definition of section 59 of the 1987 Act.

Based on the decision of Arbitrator McDonald in this case, the prescription of medicinal cannabis will not necessarily be found to be outside the definition of section 59 of the Act. If prescribed by a medical practitioner for the purposes of providing therapeutic treatment, the Commission may find that the prescription falls within the definition of medical and related treatment.