By Goldie Bassi
Workers’ compensation boards are in no position to be setting drug policy and, therefore, should be wary of adopting blanket anti-marijuana policies.
A recent Saskatchewan case has once again brought this issue to the forefront. The case involves Carey Heilman, who was deemed unemployable after suffering work-related back injuries on two separate occasions. After the failure of conventional pain relief medication, his physician prescribed him medical marijuana and Health Canada authorized possession.
Both the Saskatchewan Workers’ Compensation Board and the Appeals Tribunal rejected Heilman’s claim.
In coming to its decision, the Appeals Tribunal accepted the WCB’s policy, which provides there is “no scientific information providing support for the use of medical marijuana” and that there is also “no scientific research into safety and efficacy of medical marijuana.”
The Appeals Tribunal adopted this policy without carrying out it’s own assessment.
Heilman asked the Saskatchewan Court of Queen’s Bench to review the decision.
In September 2012, the court released its decision overturning the Appeals Tribunal’s decision. The court remitted the matter back to the Appeals Tribunal to make a decision according to law and not merely the board policy. According to the court, by failing to question the applicability of the board policy to Heilman’s particular circumstances, the Appeals Tribunal delegated or fettered its discretion and thus failed to properly exercise its review powers.
The issue has also been reviewed by courts in other provinces. In 2005, the Quebec Superior Court ordered Quebec’s workers’ compensation board, CSST, to reimburse claims for medical marijuana, as it would be required to do for any other prescribed medication.
In 2007, an Ontario court ordered the Workplace Safety and Insurance Board (WSIB) to assess reimbursement of medical marijuana on a case-by-case basis. Since then, dozens of claimants have been granted reimbursement for medical marijuana, while others have been denied.
Another medical marijuana case is working its way through the system in Ontario. Danny Auger has suffered from chronic pain due to nerve damage since a 2009 construction accident.
Auger initially used Oxycontin, a prescription narcotic, but feared addiction. Auger therefore opted for medical marijuana. His doctor provided a prescription and Health Canada authorized possession for medical purposes, but the WSIB denied coverage. Auger is currently awaiting a decision from the Appeals Tribunal.
While evidence-based assessments of the medicinal benefits of marijuana have failed to yield clear results, where appropriate, workers’ compensation boards ought to defer to the judgment of a claimant’s treating physician.
If a medical doctor has determined medical marijuana may be helpful to a particular patient, and Health Canada has sanctioned such use, it is not the place of a workers’ compensation board to deny such a claim based on unsubstantiated fears of setting an adverse precedent or endorsing the use of marijuana. Certainly, such concerns ought not to supersede a worker’s right to access care that is “necessary, appropriate and sufficient” to his own circumstances.
Goldie Bassi is an associate lawyer at Gowlings, LLP. Visit www.gowlings.com/ohslaw
for more information.