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Workers’ compensation up in smoke

Injured Saskatchewan worker prescribed medical marijuana, raising question of who should decide what medication is appropriate — the WCB or the prescribing physician?

By Jeffrey R. Smith

Workers’ compensation boards exist to help protect workers’ incomes in the event an injury prevents them from working and earning money, either temporarily or permanently.

Additionally, if someone requires medication to treat the work-related injury that isn’t covered by health benefits, compensation can sometimes be provided to cover the cost of the medication. But who should decide what gets covered and what doesn’t?

An recent ruling out of Saskatchewan involved a man who suffered two back injuries over his career that resulted in ongoing pain and spasms that ultimately prevented him from being able to work. After trying several medications that didn’t do the job, his specialist prescribed medical marijuana to ease his symptoms and Health Canada gave him approval to possess the drug.

Faced with paying $1,200 per month to get the marijuana from his approved provider, the man applied to the Saskatchewan Workers’ Compensation Board to cover the cost, since the board had a policy that stated prescription medication would be covered if it was appropriate and needed to treat an accepted work injury. However, the policy also stated the board would not reimburse the costs of medical marijuana in smoked form, though it would cover certain “marijuana drug derivatives” if they were prescribed for certain conditions and approved by a medical consultant. In this case, a consultant did not approve the use of medical marijuana due to the uncertainty of its benefits, and the fact the man used it by smoking it.

An appeal was rejected but the man went to the provincial Court of Queen’s Bench, which found the board should have given more consideration to the prescribing medical professional’s opinion and other evidence rather than just assuming the opinion of its consultant.

The use of medical marijuana is controversial, but it’s been gradually gaining more acceptance, as evidenced by Health Canada now approving certain people to use it and arranging for a supply of it. Though its effectiveness for medical purposes has yet to be scientifically proven, there is anecdotal evidence it can work.

In circumstances such as the above case, where a disabled worker has tried many things and has been given a prescription as well as government approval to use an alternative health therapy or medication — in this case, marijuana — should that be enough to justify coverage of the costs? Is it unfair, or even discriminatory, to provide coverage for some prescribed medications and not others to disabled workers in need? When it comes to determining the effectiveness of a treatment, should a workers’ compensation board’s consultant take precedence over a prescribing doctor or even, as in this case, Health Canada?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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