WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190080
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (Not Participating)
HEARING: Hearing in Writing
HEARD by: S. Crisostomo, Appeals Resolution Officer
DATED: September 13, 2019
ISSUE
The worker is requesting entitlement to the reimbursement of the costs to purchase medical cannabis/marijuana.
BACKGROUND
The Appeals Resolution Officer’s (ARO) decision of March 10, 2017 provides a thorough history of the claim. Therefore, I will not repeat it all here.
Initial entitlement in this claim was accepted for Traumatic Mental Stress. The date of injury was determined to be October 21, 2004.
The worker received a 15 % Non-economic loss (NEL) benefit in April of 2012 for the diagnosis of Post-Traumatic Stress Disorder (PTSD) and Adjustment Disorder.
The ARO’s decision of March 10, 2017 accepted entitlement for an October 2015 recurrence of the worker’s PTSD. As a result of a permanent worsening in the worker’s condition, his NEL benefit was re-determined in July of 2017 and increased to 20%.
Entitlement was accepted for a March 2018 recurrence of the worker’s PTSD and the worker was granted entitlement to full LOE benefits from March 13, 2018 to the date of this decision.
On July 26, 2018, the worker requested entitlement for medical marijuana.
Decision
On August 15, 2018, the Nurse Consultant denied entitlement to the reimbursement of the cost to purchase medical marijuana after determining there was insufficient medical evidence for efficacy and safety of medical marijuana for the treatment of PTSD. The decision was reconsidered on May 24, 2019 and upheld.
Worker Representative’s Position
The worker’s representative submits:
The Workplace Safety and Insurance Act allows healthcare as may be necessary as a result of the injury.
The worker has tried numerous medication trials, which have shown to be ineffective.
The worker was prescribed medical cannabis by his treating doctor.
Evidence from clinical practices have shown medical cannabis is a benefit to patients with PTSD.
Workplace Safety and Insurance Appeals Tribunal (WSIAT) Decision No. 235/061 allowed medical marijuana and determined marijuana ought to be allowed if the evidence establishes that it is requested as a result of an injury and it improves the quality of a life of a severely impaired worker.
AUTHORITY
Operational Policy:
17-01-02 Entitlement to Health Care
17-06-05 Personal Care Allowance
Workplace Safety and Insurance Act, 1997 (the Act):
Section 33 (7)-Questions Re Health Care
ANALYSIS
I have carefully considered all of the available information, the applicable legislation and the relevant operational policies in reaching this decision.
I find the worker is not entitled to the reimbursement of the costs to purchase medical cannabis/marijuana. The reasons for my decision follow.
At the time of the August 15, 2018 decision, there was no Workplace Safety and Insurance Board (WSIB) policy that applied specifically to medical cannabis coverage. Therefore, entitlement to the reimbursement of the costs to purchase medical cannabis prior to March 1, 2019 (as medical cannabis purchased on or after March 1, 2019 is adjudicated under Operational Policy 17-01-10 Cannabis for Medical Purposes) must be determined based upon the available evidence, the individual merits and justice of the case, and the application of Operational Policy 17-01-02. Entitlement to medical cannabis purchased on or after March 1, 2019 is not an issue before me; therefore, I will make no finding regarding this issue.
The legislation (Section 33) provides the authority for the WSIB to determine the necessity, appropriateness and sufficiency of healthcare provided to a worker.
Operational Policy 17-01-02 states in part:
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.
Operational Policy 17-01-02 also states that health care includes “such measures to improve the quality of life of severely impaired workers as, in the WSIB’s opinion, are appropriate”.
While I recognize that the worker’s representative has mentioned WSIAT case law in support of their submission, I must note that the WSIB is not bound by WSIAT decisions. In my attempt to find WSIAT Decision No. 235/061 in full, I was unable to locate the decision in the WSIAT database. However, I note the representative states the decision pertains to the allowance of medical marijuana when it improves the quality of life of a severely impaired worker. I note severely impaired is not defined in Operational Policy 17-01-02 related to health care entitlement; however, it is defined in a number of other WSIB policies including Operational Policy 17-06-05 Personal Care Allowance (PCA). The PCA policy indicates worker’s assessed or likely to be assessed a 60% NEL benefit or 100% PD benefit are considered severely impaired. In the absence of a specific definition under the health care entitlement policy, I accept this definition of severely impaired as appropriate.
As the worker’s NEL benefit in this claim is 20%, the worker is not considered severely impaired in accordance with Operational Policy 17-06-05.
I recognize that the WSIAT has established a set of guidelines (Decision No. 677/19) that a decision maker can use to determine if entitlement to medical cannabis should be granted in a claim. I have reviewed the WSIAT guidelines and determined that in establishing if approval for the reimbursement of the cost to purchase medical cannabis should be granted, that it is reasonable to use the WSIAT guidelines. In reviewing the WSIAT guidelines, I note that one criterion for entitlement is that the worker’s compensable pain is constant and debilitating. Noting that entitlement in this claim has been accepted for PTSD and Adjustment Disorder; I find the worker was not experiencing constant and debilitating pain, as his condition is a mental health condition and not organic in nature.
Another criterion used by the WSIAT to determine entitlement to medical cannabis is that there must be reliable medical evidence that the worker’s treating physicians have formed a reasonable opinion that medical marijuana has been effective in assisting the particular worker in dealing with his or her work-related impairment.
I note that Dr. Tahir, the worker’s treating Psychiatrist prescribed the worker medical marijuana oil (1 gram per day) as indicated in the report dated July 30, 2018. Dr. Tahir’s letter of January 24, 2019, in support of entitlement to medical cannabis, states that even though Dr. Tahir somewhat agreed with the notion that there may not be sufficient evidence in the previously published literature for medical cannabis as the treatment for PTSD, there has been mounting evidence from clinical practices across North America including his own practice that it does work for PTSD in patients where they tried other specifically indicated medications for the treatment of PTSD.
In assessing the evidence before me, I find the evidence does not meet the threshold of “reliable medical evidence” that the worker’s treating physicians have formed a “reasonable opinion” that medical marijuana would be appropriate for the worker. First, while Dr. Tahir was of the option that cannabis is effective in treating PTSD, I find that this opinion is not reliable because he himself states that he somewhat agrees with the notion that there may not be sufficient evidence in the previously published literature for medical cannabis as the treatment for PTSD. Second, while Dr. Tahir claims that cannabis has proved beneficial for other patients of his suffering from PTSD, he provided no supporting clinical or scientific evidence for his conclusion. Third, the only scientific evidence before me is a medical article submitted by the worker’s representative titled Cannabis for Pain and Posttraumatic Stress Disorder: More Consensus than controversy or vice versa? A review of the article reveals that there was little high-quality evidence from which to draw a firm conclusion about the efficacy of cannabis products to treat PTSD. Accordingly, I find that there is no reliable medical or scientific evidence before me with respect to the effectiveness of cannabis in treatment of PTSD.
As such, I find the WSIAT guidelines to determine whether entitlement to cannabis should be granted in a claim have not been met.
Based on the evidence before me, I cannot find that medical marijuana is a necessary and appropriate treatment for the worker’s PTSD and Adjustment Disorder. Therefore, I find medical cannabis is not appropriate health care for the treatment of the worker’s work-related PTSD and Adjustment Disorder. Thus, entitlement to the reimbursement of the costs to purchase medical cannabis for all medical cannabis purchased prior to March 1, 2019 is denied.
CONCLUSION
Based on the evidence outlined in this decision, I conclude entitlement to the reimbursement of the costs to purchase medical cannabis for all medical cannabis purchased prior to March 1, 2019 is denied.
The worker’s objection is denied.
DATED: September 13, 2019
S. Crisostomo
Appeals Resolution Officer
Appeals Services Division