WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2691/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2691/16 BEFORE: M. Crystal: Vice-Chair HEARING: October 20, 2016 at Toronto Written DATE OF DECISION: December 28, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3577 DECISION UNDER APPEAL: WSIB ARO decision dated August 25, 2015 APPEARANCES: For the worker: For the employer: Interpreter: Mr. J. Johnson, Paralegal Did not participate Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2691/16 REASONS (i) Introduction [1] This appeal was considered as a written case in Toronto, on October 20, The worker appeals the decision of Appeals Resolution Officer (ARO) S. Crisostomo, dated August 25, That decision determined that the worker is not entitled to reimbursement of the costs to purchase medical marijuana. [2] The worker was represented by Mr. James Johnson, paralegal. The employer did not participate in the appeal. Although invited to do so, the worker s representative did not provide submissions in support of the worker s appeal. (ii) A synopsis of the case under appeal [3] According to a Worker s Report of Injury (Form 6), dated February 2, 1998, the worker, who was employed at the time by the accident employer as a machine operator, sustained injuries to her right lower back, neck, and shoulder when she was struck at her work station by a steel rack being moved by a forklift truck. The Board subsequently determined that the worker had sustained a permanent impairment to her right shoulder, neck and low back, and awarded her a 35% non-economic loss (NEL) award for these organic injuries. The rating date for the NEL award is May 11, [4] The case materials included a Medical Report, dated July 25, 2005, in support of the worker s application for Canada Pension Plan (CPP) disability benefits, prepared by Dr. Harry Pollett, anesthesiologist. The report referred to the worker s 1998 work accident, and indicated that the worker has had chronic pain since that injury. The report indicated that, to treat her pain, the worker had been administered nerve block injections, had tried a photonic stimulator, and had also been prescribed amitriptyline and anti-inflammatory medications. The report noted that physiotherapy increased the worker s pain. The case materials also included a report, dated December 5, 2005, prepared by Dr. Stephen Farrell, her family physician at the time, which stated that the worker had been seen on a monthly basis for treatment of her compensable neck, right shoulder and low back injury for which she is prescribed Percocet, 1 tablet t.i.d.[three times per day] A further report prepared by Dr. Farrell, dated September 11, 2006, also indicated that the worker had been prescribed Percocet and Naprosyn for her pain. [5] The case included a further report, dated May 20, 2015, prepared by Dr. Jonathan Smith, the worker s family physician at that time. The report stated that the worker continues to take oxycocet up to 4 tablets daily as well as losec. The report also indicated that the worker was taking non-prescription Motrin. Dr. Smith provided a further report to the Board, dated August 21, 2015, again indicating that the worker continues to take oxycocet up to 4 tablets daily, as well as losec and nonprescription Motrin. [6] The case materials also included a document, dated October 29, 2014, prepared on letterhead of the Cannabinoid Medical Clinic by Dr. Danial Schecter. Dr. Schecter is a physician and specialist in family medicine. The document, which is handwritten and poorly legible, appears to be a prescription for the drug Nabilone, which is a synthetic cannabinoid. The case materials included another document, also prepared on the letterhead of Cannabinoid Medical Clinic, which is not dated or signed. The document stated, in part:

3 Page: 2 Decision No. 2691/16 Your application has been sent to [name of licensed producer] for 2 grams per day for 3 months. You can expect your product to be ready in 2 weeks. The phone number to call is [telephone numbers indicated]. Call the clinic if you have not been contacted by the licensed producer in 2 weeks. Expect your initial contact to be [by Canada Post or by or telephone] [7] The document went on to list websites which provide information about vaporizers. (iii) Applicable law and policy [8] The workplace accident which is the subject of this appeal occurred on February 2, Accordingly, the worker s entitlement to benefits in this appeal is governed by the Workplace Safety and Insurance Act, 1997 ( the Act ). [9] In this appeal, the worker is seeking entitlement to funding for medical marijuana as health care benefits. Section 33 of the Act provides: 33(1) A worker who sustains an injury is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury and is entitled to make the initial choice of health professional for the purposes of this section. [10] Operational Policy Manual Document No , on the subject of Entitlement to Health Care also applies in the circumstances of this appeal. The policy document states, in part: Law The Workplace Safety and Insurance Act provides: A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury. Guidelines Definitions. Health care - includes professional services provided by a health care practitioner services provided by or at hospitals and health facilities prescription drugs the services of an attendant modifications to a person's home and vehicle and other measures to facilitate independent living which are appropriate in the WSIB's opinion assistive devices and prostheses extraordinary transportation costs to obtain health care such measures to improve the quality of life of severely impaired workers as, in the WSIB's opinion, are appropriate (iv) The issue under appeal [11] According to a Hearing Ready Letter, dated April 7, 2016, from the Tribunal to the worker s representative, on April 4, 2016, the worker s representative had spoken with a member

4 Page: 3 Decision No. 2691/16 to the Tribunal s staff, and the representative agreed that the entitlement to medical marijuana issue is the only one before the Tribunal. [12] Accordingly, the sole issue to be determined in this appeal is whether the worker is entitled to reimbursement for the costs to purchase medical marijuana. (v) Analysis [13] The ARO decision, dated August 25, 2015, which is the subject of this appeal stated, in part: While I note a number of WSIAT decisions have addressed medical marijuana entitlement, it is my understanding that the WSIAT has generally indicated such entitlement would only occur in exceptional circumstances for severely impaired workers. [14] The decision went on to refer to Operational Policy Manual Document No , on the subject of Personal Care Allowance (PCA), which indicates that workers will be considered to be severely impaired for the purpose of that policy document, where the worker is in receipt of a 60% NEL award or a 100% permanent disability (PD) award. One of the reasons provided by the ARO for denying the worker entitlement to funding for medical marijuana was that the worker was in receipt of only a 35% NEL award for her compensable injuries, and was not entitled to funding for medical marijuana because she was not severely impaired within the meaning of OPM Document No [15] Although I agree with the outcome of the ARO decision, in that I find that the worker is not entitled to funding for medical marijuana in this case, I do not agree with the ARO s view that the mainstream of Tribunal jurisprudence provides that entitlement for funding to medical marijuana should be based on the quantum of the worker s NEL entitlement, or that to be entitled to funding for medical marijuana, it is necessary for a worker to demonstrate severe impairment according to a definition found in Board policy. [16] I have reviewed the Tribunal s jurisprudence concerning whether funding for medical marijuana should be provided under the Board s insurance plan, and if so, in what circumstances the funding should be provided. I find that the mainstream approach taken in the Tribunal s decisions is that funding is generally provided under the insurance plan in circumstances where: The worker experiences constant and debilitating pain related to the worker s work injury; The worker s treating physician has recommended and/or prescribed medical marijuana to treat the worker s ongoing debilitating pain; The worker has obtained from Health Canada the necessary authorization to legally possess medical marijuana with the approval of the worker s physician; Other methods of pain control have been tried to address the worker s pain, but have proven to be less effective or practical than medical marijuana as a method of controlling and treating the worker s pain; and There are no circumstances which make it inappropriate for the worker to use medical marijuana to treat the worker s ongoing pain.

5 Page: 4 Decision No. 2691/16 [17] This was the general approach taken in Decision No. 480/15, Decision No. 1393/14, Decision No. 1537/12, and Decision No. 491/12 as well as several other Tribunal decisions. The Tribunal s decisions have considered the wording included in section 33 of the Workplace Safety and Insurance Act, 1997, which provides that a worker who sustains an injury is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury [emphasis added] and have concluded, generally, that where the factors noted above are present, entitlement under section 33 is established. [18] For the most part, the Tribunal s decisions concerning entitlement to funding for medical marijuana have taken into account the fact that, in some cases, the Board has been reluctant to award funding for medical marijuana on the basis that there has been insufficient research related to the use of medical marijuana to have fully established its efficacy and safety as a medical treatment for pain. The Board also has noted that notwithstanding Health Canada s program which authorizes possession of marijuana for medical purposes, Health Canada has not approved the therapeutic use of medical marijuana as an approved drug. Further, the Board has pointed out that medical marijuana has not been included in the Board s formulary of drugs in relation to which the Board provides funding. The Tribunal s mainstream decisions have concluded, however, that notwithstanding these considerations, which were raised by the ARO in this case, where the factors noted above are present, section 33 of the Act provides the decision maker with discretion to approve funding for medical marijuana. [19] Based on the evidence that is before me, I am not able to conclude that these considerations which have been the basis for the Tribunal to award entitlement to funding for medical marijuana have been addressed or satisfied by the worker s physicians in this case. [20] Although I am satisfied that the worker experiences ongoing pain symptoms that have resulted from her compensable injury, the case materials did not include persuasive medical information to support the conclusion that medical marijuana is an appropriate treatment for the worker s pain. I note that the only document included in the case materials that was signed by a physician, that was related to the worker s need for medical marijuana was the prescription for Nabilone, signed by Dr. Schecter, of the Cannabinoid Medical Clinic. Entitlement for Nabilone is not an issue in this appeal. [21] The case materials also included another document, prepared at the Cannabinoid Medical Clinic, which appears to be an instruction sheet for the worker, explaining when and how she could expect to receive the medical marijuana following the processing of her application for a license to possess medical marijuana from Health Canada. Although it appears to be implicit from the document that Dr. Schecter completed an application for the worker to obtain a license to possess medical marijuana from Health Canada, I note that this instructions sheet document is not signed by Dr. Schecter, and does not refer to the worker by name. [22] In any event, I note that there is other information on file, prepared by the worker s family physician, Dr. Jonathan Smith, in May and August 2015, after Dr. Schecter saw the worker, which indicates that the Dr. Smith was continuing to prescribe the worker opioid medication for her pain, namely Percocet or oxycocet. There was no evidence before me to indicate that Dr. Smith was aware of the worker s application for a license to possess medical marijuana or that Dr. Smith believed that medical marijuana was an appropriate drug to treat the worker s pain. The fact that Dr. Smith s reports in 2015 indicated that the worker was being prescribed opioid medication to treat her pain, without reference to her being prescribed medical

6 Page: 5 Decision No. 2691/16 marijuana by him, provides support for the conclusion that Dr. Smith had not determined that medical marijuana was a necessary treatment for the worker. [23] I have considered the information prepared by Dr. Schecter and the Cannabinoid Medical Clinic. This information does not indicate any reasons for Dr. Schecter to have prescribed medical marijuana for the worker, or indicate that Dr. Schecter was aware that the worker s pain had been treated with opioid medication. I am not able to conclude from the available medical information that Dr. Schecter had an ongoing involvement in the treatment of the worker s medical condition. Accordingly, I attribute limited weight to Dr. Schecter s apparent view that medical marijuana was an appropriate treatment for the worker s pain, which was not stated explicitly in any of the information prepared by Dr. Schecter or the Cannabinoid Medical Clinic. [24] In this case, I am not able to conclude that the physicians who are responsible for the worker s ongoing medical treatment have determined that medical marijuana is a necessary or appropriate treatment for the worker s pain. I am not able to conclude that other methods of pain control, such as the prescription of opioid medication, which have been tried to address the worker s pain, have proven to be less effective or practical than medical marijuana as a method of controlling and treating the worker s pain. To the contrary, after the worker apparently obtained medical marijuana through Dr. Schecter or the Cannabinoid Medical Clinic, Dr. Smith continued to prescribe the worker opioid medication. [25] For these reasons I conclude that, in this case, prescription of medical marijuana to treat the worker s pain is not health care as may be necessary, appropriate, and sufficient as a result of the injury within the meaning of section 33 of the Act, or Operational Policy Manual Document No Accordingly, the worker is not entitled to reimbursement for the costs to purchase medical marijuana.

7 Page: 6 Decision No. 2691/16 DISPOSITION [26] The appeal is denied. [27] The worker is not entitled to reimbursement for the costs to purchase medical marijuana. DATED: December 28, 2016 SIGNED: M. Crystal