A refusal by Workers Compensation Board (“WCB”) to pay for an injured worker’s medical marihuana is found reasonable by the Court on judicial review

28. January 2014 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Benefits – Medicinal use of marijuana – Judicial review – Compliance with legislation – Policies – Ultra vires – Jurisdiction – Standard of review – Reasonableness simpliciter

Heilman v. Workers’ Compensation Board, [2013] S.J. No. 680, 2013 SKQB 403, Saskatchewan Court of Queen’s Bench, November 14, 2013P.A. Whitmore J.A.

As a result of work-related injuries in 1981 and 1982, Mr. Heilman suffered from chronic back pain and muscle spasms. He was prescribed numerous medications for pain over the years with varying levels of success. In 2002, upon the recommendation of his physician he commenced using medical marihuana which provided him with more effective relief for his work-related injuries without the severe side effects that accompanied other drugs. Mr. Heilman applied to the WCB for reimbursement for the cost of his medical marihuana. The WCB denied his application in 2011. The decision was appealed by way of judicial review. In that proceeding, the Court found the WCB improperly fettered its discretion by relying on the submissions of the WCB’s medical consultant and medical department. The matter was remitted back to the WCB who again denied reimbursement to Mr. Heilman for the medical marihuana. Mr. Heilman again applied for judicial review of the decision.

In this matter, the parties agreed the applicable standard of review was that of reasonableness. The Saskatchewan Court of Queen’s Bench agreed noting that there are no issues of general legal importance and that the WCB is simply interpreting and applying the Workers Compensation Act (“Act”).

With respect to the issue of whether the WCB has jurisdiction to deny reimbursement for a specific medical treatment, such as medical marihuana, the Court answered in the affirmative. The Court noted ss. 21.1(b), 22 and 106 as the relevant statutory provisions of the Act. Under s. 106, every worker entitled to compensation is entitled without charge to any medical aid that may be necessary as a result of the injury. Section 21.1(b) provides that the WCB shall arrange to provide any medical aid or treatment that may be required in the circumstances as a result of injuries to workers. Under s. 22, the WCB has exclusive jurisdiction to determine all matters in questions arising under the Act.

The WCB argued that the question of whether medical aid “is required in the circumstances” or is “necessary as a result of the injury” are matters arising under the Act and, therefore, the WCB has jurisdiction to deny reimbursement for medical aid that it determines is not required or necessary in a particular case. In this case, the WCB denied reimbursement to Mr. Heilman on the basis of medical research and because the worker had not tried the marihuana drug derivative Sativex.

Based on the wording of the Act and the context of the relevant provisions, the Court viewed the WCB’s interpretation, that the Act grants the WCB discretion to refuse to reimburse a specific medical treatment, reasonable; the question of what medical aid is necessary for a particular patient is, by definition, a question arising under the Act. The Court found that the plain language of s.106, read in conjunction with the rest of the Act, does not lead to the conclusion that the WCB has no say over whether a particular medical aid is necessary and should be reimbursed. The Court rejected the worker’s position that once a doctor recommends a course of treatment or medication the WCB has no authority to determine whether such treatment is “necessary as a result of the injury”. The Court also rejected the worker’s argument that the WCB relied on an ultra vires WCB policy that precludes reimbursement of medical marihuana to an injured worker as there was no evidence of this.

With respect to whether the WCB’s decision to deny reimbursement to the worker met the appropriate standard of review, the Court held that the WCB’s decision was reasonable. The WCB essentially held that the benefits and safety of medical marihuana have not been established to the point that it is “necessary” or “required” medical aid. The Court found this conclusion supported by research and was all the more reasonable considering the worker had declined to try the marihuana drug alternative Sativex. The Court noted that while this may not be the best decision for the worker, particularly in view of the fact that medical marihuana had worked for him for the past 10 years, the WCB’s decision fell within the range of reasonable outcomes which is supported by the evidence. The Court rejected the worker’s argument that WCB denied him reimbursement for medical marihuana due to potential political consequences.

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