APPEALS RESOLUTION OFFICER DECISION
decision number:
20220015
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
SELF
HEARING:
HEARING IN WRITING
HEARD by:
Stephen Crisostomo, appeals resolution officer
ISSUE
The worker objects to the Nurse Consultant’s decision dated April 9, 2019, which denied entitlement to medical cannabis, in accordance with Operational Policy 17-01-10 Cannabis for Medical Purposes.
BACKGROUND
Entitlement is this claim has been allowed for Posttraumatic Stress Disorder (PTSD) under the Traumatic Mental Stress (TMS) policy based on the worker, a Paramedic, attending the scene of a traumatic motor vehicle accident involving a fatality and severe injury on April 25, 2015.
Entitlement was allowed for psychological treatment and full Loss of Earnings (LOE) benefits from April 26, 2015 to April 29, 2015 and from November 1, 2015.
In April of 2019, the Nurse Consultant reviewed entitlement for medical cannabis under Operational Policy 17-01-10, which applies to all purchases of medical cannabis made on or after March 1, 2019. Based on the review, the Nurse Consultant denied entitlement to medical cannabis after determining the worker did not meet the entitlement criteria outlined in policy for entitlement to be allowed. This decision was communicated on April 9, 2019.
The worker objected to the April 9, 2019 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.
Worker Representative’s Position
The worker’s representative submits:
While they acknowledge PTSD is not a designated condition under the medical cannabis policy, they disagree with the complete exclusion of any consideration to the treating medical practitioners’ recommendations that medical cannabis has therapeutic benefits for the worker.
Dr. Garcia, Psychologist, is supportive of the worker’s medical cannabis use for symptoms of depression and sleep disturbances. Dr. Garcia states that medical cannabis has been the most effective prescription treatment for the worker’s symptoms.
Dr. Hovey, General Practitioner, also supports the worker’s medical cannabis use for their PTSD.
The worker’s medical cannabis use since April 2018 has resulted in improvements in their overall anxiety, depression and sleep.
Medical cannabis should be treated as tool to decrease symptoms of PTSD and should be allowed to support the worker’s recovery.
In support of the submission for entitlement to medical cannabis, the representative references several medical reports/studies.
Employer’s Position
The employer takes no formal position in the appeal.
AUTHORITY
Operational Policy Manual
Published
Published
11-01-03 Merits and Justice
17-01-10 Cannabis for Medical Purposes
October 12, 2004
March 1, 2019
ANALYSIS
I have carefully considered all of the available information and relevant operational policies in reaching this decision.
I find the worker is not entitled to medical cannabis for all medical cannabis purchased on or after March 1, 2019. The reasons for my decision follow
I recognize that the worker’s representative feels that Operational Policy 17-01-10 is restrictive as it completely excludes any consideration of the worker’s treating medical practitioners’ recommendations that medical cannabis provides the worker therapeutic benefit for their PTSD.
Operational Policy 11-01-03 Merits and Justice states in part:
Every decision made by the WSIB must be based on the merits and justice of the case, which means decision-makers must take into account
all facts and circumstances relating to the case
the relevant WSIB policy or policies, and
the relevant provision or provisions of the Workplace Safety and Insurance Act or the Workers' Compensation Act (the Act).
The obligation to decide each case on the basis of merits and justice does not authorize a decision-maker to disregard the relevant provisions of the Act or WSIB policies. The Act and the policies must be taken into consideration, and cannot be ignored if they apply to a particular case (my emphasis added).
The WSIB develops policies when the Act is silent or ambiguous, or when it permits a number of possible interpretations.
Within each policy, the WSIB creates a framework that directs the way decision-makers should act when certain facts and circumstances come before them. If such situations arise, the relevant policies must be followed.
As per Operational Policy 11-01-03 Merits and Justice, I must take into consideration the relevant WSIB policy or polices in making my decision and cannot ignore a policy if it applies to a particular case. Noting, Operational Policy 17-01-10 specifically applies to medical cannabis entitlement, for all medical cannabis purchases made on or after March 1, 2019, which is the issue before me, I must rely on the policy in making my decision.
Operational Policy 17-01-10 states in part:
Except where otherwise provided in this policy in relation to palliative care, entitlement to medical cannabis for a work-related injury/disease may be allowed if all of the following criteria are met:
- The worker has a designated condition.
- The worker's treating health professional authorizes medical cannabis to treat the designated condition.
- The worker has exhausted conventional treatments for the designated condition.
- An appropriate clinical assessment of the worker has been conducted.
- The benefits of medical cannabis for the worker outweigh the risks.
- The dose and route of administration authorized for the worker are appropriate.
- The worker has a valid medical document or a written order for medical cannabis.
Operational Policy 17-01-10 defines a designated condition as:
One of the following conditions for which there is evidence of the therapeutic efficacy of medical cannabis:
- neuropathic pain
- spasticity resulting from a spinal cord injury
- nausea and vomiting associated with cancer chemotherapy
- loss of appetite associated with human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS), or
- pain and other symptoms experienced in a palliative setting.
In reviewing the file, I note entitlement in this claim has been allowed for PTSD and that PTSD is not a designation condition outlined in Operational Policy 17-01-10. In addition, I recognize that the worker does not suffer from any of the designated conditions outlined in Operational Policy 17-01-10.
While I recognize the worker was authorized to use medical cannabis for the treatment of their PTSD symptoms, in the absence of the worker meeting the first criterion (Criterion 1- The worker has a designated condition) under Operational Policy 17-01-10, I find the worker does not meet all of the entitlement criteria for entitlement to medical cannabis to be allowed in this claim.
As such, entitlement to medical cannabis for all medical cannabis purchased on or after March 1, 2019 is denied.
CONCLUSION
Based on the evidence outlined in this decision, I conclude entitlement for all medical cannabis purchased on or after March 1, 2019 is denied.
The worker’s objection is denied.
DATED February 8, 2022
S. Crisostomo
Appeals Resolution Officer
Appeals Services Division