Since the Federal Government first loosened Australia’s medicinal cannabis laws in 2016, Australia’s state governments have been quick to follow suit. In New South Wales, the Poisons and Therapeutic Goods Regulations were amended in 2016 and 2019, giving certain doctors wider powers to prescribe medicinal cannabis under certain conditions. Generally, doctors with certain training and qualifications can prescribe medicinal cannabis if a patient fails to react or achieve benefit from conventional treatment.
Whether medicinal cannabis can be funded under the Workers Compensation Scheme in NSW was recently heard by the Workers Compensation Commission in Donnelly v Camsons Pty Ltd [2021]. Mr Donnelly injured himself at work 2013 when he fell off a ladder and was left with chronic left shoulder and neck pain at only 23 years old.
After many surgeries, cortisone injections and nerve blocks, he was still left with severe pain and had likely developed an opioid addiction due to his strong analgesic medication. Mr Donnelly eventually saw Dr Ho, who recommended that he try CBD Oil, which is made from cannabis plants. The doctor was of the view that this oil has less harmful side effects than the ongoing use of high levels of opioids. Mr Donnelly submitted a request to his Workers Compensation insurer for this treatment and it was subsequently denied.
The matter was then referred to the Workers Compensation Commission. In determining whether the insurer was liable to pay for Mr Donnelly’s medicinal cannabis, the Commission had to answer two questions specific to the Workers Compensation legislation:
- Is medicinal cannabis a “medical or related treatment” payable under the scheme, and
- Is the request for medicinal cannabis “reasonably necessary” in the circumstances.
The Commission took into consideration a wide range of factors, including that Mr Donnelly was in extreme pain on a daily basis, even whilst taking his opioid medication, there were no surgical treatments available to him and he was unable to sleep. The insurer did not deny any of these submissions, however, it argued that there were other conventional alternatives available to Mr Donnelly, and that the risks of medicinal cannabis outweighed the potential advantages.
The Commission accepted that Mr Donnelly had likely become addicted to his opioid medication, however, it found that there were more risks associated with medicinal cannabis than continuing on the opioid medication. The Commission found that if Mr Donnelly was allowed to take medicinal cannabis, he would be unable to work on a number of job sites, operate a motor vehicle or heavy machinery, and there was a risk that he would become addicted to the cannabis, and developed psychotic symptoms. The only certain advantage the Commission found in taking medicinal cannabis was that Mr Donnelly would sleep better.
As such, in this case, whilst medicinal cannabis was found to be a medical treatment for the purposes of the Workers Compensation Scheme in NSW, it was not reasonably necessary in the circumstances.
However, it is important to note that the Commission left the door open to future approvals for medicinal cannabis. In its decision, The Commission stated that as scientific research continues into the potential uses and advantageous of medicinal cannabis, a different outcome may be reached whereby the advantages would outweigh the risks. Each matter will be decided on its own facts.
This case is a perfect example of “law lag” – the principal that the law is always lagging behind other sectors of society, as it usually takes time to react to, and cater for something new, such as the newfound benefits of medicinal marijuana.
If you have been injured at work and believe that your Workers Compensation insurer has unjustifiably knocked back your treatment, give our experienced Personal Injury team a call on 02 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
