Court snuffs out rejection for medical marijuana

Medical specialist wrote a prescription but WCB's consultant didn't support its use

An application for workers’ compensation for prescribed medical marijuana shouldn’t be dismissed simply because a medical consultant doesn’t support it, the Saskatchewan Court of Queens’ Bench has ruled.

The worker suffered two injuries to his back in 1981 and 1997, which led to ongoing pain and back spasms that surgery couldn’t fix. He was deemed unemployable by the Saskatchewan Workers’ Compensation Board (WCB) in 2002.

By this time, he had tried many drug therapies and treatments that didn’t help much and caused severe side effects. His specialist recommended he try using marijuana and, in December 2002, Health Canada authorized him to posess medical marijuana.

For a while, the worker’s licensed provider of marijuana didn’t charge him for the drug, of which he consumed four grams each day by smoking and vaporization. However, he became concerned that this arrangement wouldn’t continue and, suspecting he would soon have to pay for it, applied to the WCB in 2003 to cover the $1,200 monthly cost. The WCB refused the claim.

Seven years later, the worker brought another claim to the WCB appeals department. The appeals department denied it, finding that the WCB medical department didn’t support medical marijuana treatment due to “a lack of scientific evidence regarding marijuana effectiveness and a lack of comprehensive studies on the side effects of long-term medical use.” WCB policies also disallowed reimbursement for medical marijuana costs for similar reasons.

The worker went to the WCB Appeals Tribunal, which pointed to a policy of the Saskatchewan College of Physicians & Surgeons that stated it was uncertain of the safety and effectiveness of medical marijuana, for the same reason: a lack of research and only anecdotal evidence. Though the worker argued his physician prescribed the drug and WCB policy stated prescribed medications would be covered, the tribunal upheld the denial.

The court found the tribunal erred when it failed to consider the prescription and relied only on the lack of scientific information. By doing so, it didn’t consider the policy that stated prescription medication would be covered. The tribunal essentially delegated its decision to the WCB medical department rather than exercising its power to decide based on the arguments and evidence, said the court.

“It appears from the tribunal’s decision that it did not make an independent determination about whether (the WCB policy) applied to the (worker),” said the court.

The court remitted the case to another tribunal to make “a decision according to law.” See Heilman v. Saskatchewan (Workers’ Compensation Board), 2012 CarswellSask 594 (Sask. Q.B.).

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