A recent Saskatchewan Court of Queen’s Bench decided that an injured worker should have his case heard on its merit to determine if his medical marijuana should be paid for by workers’ compensation.
Carey Heilman injured his back on January 31, 1981, and again on March 27, 1997. After several surgeries, and a diagnosis of arachnoiditis and failed back surgery syndrome, he has been deemed unable to return to work. To overcome the ongoing pain and back spasms he suffered, Heilman has been prescribed many drug therapies and treatments though could not find adequate relief.
In May of 2002, he was prescribed medical marijuana for his pain and back spasms. In December, 2002, he received his first authorization to possess medical marijuana from Health Canada and he has possessed an authorization ever since.
Currently his licensed provider does not charge him for providing the four grams he ingests a day (smoked and in vapourized form). However, because he does not expect that his provider will delay charging him for the marijuana much longer, he made a claim to the Saskatchewan Workers’ Compensation Board (WCB) for the cost of medical marijuana.
If and when he is charged for it, the cost of his medical marijuana will be $1,200.00 each month.
The WCB refused his claim. His claim was also refused by the Appeals Department and by the Appeal Tribunal. He sought judicial review of the latter decision to the Saskatchewan Court of Queen’s Bench.
As noted above, the Court stated that the Tribunal erred and should not have just relied on the WCB policy which states that because there is “a lack of scientific evidence regarding marijuana effectiveness and a lack of comprehensive studies on the side effects of long-term medical use”. Moreover, because there is no medical support for medical marijuana treatment, the WCB cannot pay for the injured worker’s medical marijuana therapy.
The Board should have considered the evidence and made an independent determination as to whether Board Policy applied or not to Heilman’s case. Conclusion, Heilman won a new hearing.
So, the bigger question is, should medical marijuana be funded by the WCB?
In July 2001, Canada became the first country in the world to adopt a federal system regulating the use of herbal marijuana for “medicinal purposes,” codified in the Marijuana Medical Access Regulations.
As revealed during the trial, Health Canada grants access to marijuana for medical use to those who are suffering from grave and debilitating illnesses where conventional treatments are inappropriate or do not provide adequate relief.
The approval is a legal clearance rather than a medical endorsement.
While doing research I found this interesting paper entitled, Marijuana for Medicinal Purposes: An Evidence-Based Assessment; a 2002 Research Project Sponsored by Medical Services Workers’ Compensation Board – Alberta. This paper reveals that,
“Systematic review of the literature reveals that scientific knowledge about herbal marijuana is incomplete, with insufficient evidence to determine its therapeutic potential or harmful effects… There is presently insufficient scientific evidence to treat marijuana as a “prescribable” drug.”
“As the results of each new trial become available, the study’s “level of evidence” should be determined, and the validity of its results, including clinical importance and applicability to Alberta’s injured workers, should be critically appraised.”
Since 2002, we can purport to say that the conclusion of the research paper is still true.
Thus far, the medical conditions that have triggered workers’ compensation claims test the boundaries of medical marijuana as being compensable are chronic or severe pain – not critical illnesses like cancer or glaucoma, or HIV/Aids. Because of this, many interested stakeholders (WCB, case managers, employers, health practitioners, insurance companies, among others) are saying if WCB funded the use of marijuana for the treatment of chronic or severe pain it would create a bad precedent. More doctors would find it acceptable treatment for pain management, and there would be an increase in questionable or fraudulent workers’ compensation claims.
Employers are also wondering how they will enforce a substance-free workplace program if the use of marijuana is an acceptable treatment for pain management, and compensable by workers compensation.
In 2005, the WCB in Quebec was ordered by the Quebec Superior Court to pay for medical marijuana as it would any other prescribed drug. In 2007, Ontario was ordered to do the same on a case by case basis.
As you can see, the topic is very controversial. Thus far, decisions are not consistent nor the research conclusive enough to answer the question on the validity of marijuana for medicinal purposes, including pain management. However, there are the claims of the patients themselves to take into consideration.
I am sure we will hear more about these applications for medical marijuana coverage.
So what do you think should the WCB fund the use of medical marijuana for injured workers?