Labour Law

Costs of Marijuana for Pain Relief Not Covered by WCB

The BC Supreme Court recently issued a judgment upholding decisions of the Workers’ Compensation Board (WCB) and the Workers’Compensation Appeal Tribunal (WCAT), refusing a claimant’s request for reimbursement for the cost of marijuana. The decision arose out of the claimant’s use of marijuana to manage pain associated with a workplace accident that led to the amputation of two of his fingers, over 20 years earlier.

In January 2013, the claimant sought reimbursement from the WCB for a number of marijuana products. In reviewing his claim, WCB requested a medical opinion from a physician retained by the WCB. The physician found that the claimant did not have a prescription for marijuana, and that regardless, the WCB has a practice of rejecting all requests for coverage for marijuana products. This practice is based on the recommendation of the Evidence Based Practice Group (EBPG), a group to whom WCB has delegated responsibility for research into evidence surrounding medical issues such as the use of marijuana for pain reduction. In reports issued in 2003 and 2006, the EBPG concluded there was insufficient evidence to support the use of marijuana as a prescribable drug. Based on this practice, WCB denied the claimant’s request.

The claimant appealed the denial to WCAT. WCAT noted that WCB has the discretion to decide under Section 21(1) of the Workers Compensation Act, whether or not to compensate for medical benefits. The Tribunal also noted that the claimant had provided no medical evidence that was contrary to the recommendation of the EBPG. Accordingly, WCAT found the decision was a reasonable exercise of the WCB’s discretion.

On judicial review, the Supreme Court identified the applicable standard of review as patent unreasonableness, meaning WCAT’s findings of fact and law were to be given considerable deference due to the specialized nature of the Tribunal. The Court concluded that WCAT properly decided the appeal on the only medical evidence before them, and that there was no evidence the EBPG’s conclusion was unreasonable or that WCAT acted unreasonably in relying on EBPG’s conclusion.

The Court’s decision suggests the outcome may have been different if the claimant had possessed a valid prescription from a licenced medical practitioner, and had presented medical evidence recognizing marijuana as a treatment for pain. With Health Canada implementing changes to its medical marijuana program on April 1, 2014, removing production from the patient and regulating potency, it will be interesting to see whether WCB’s practice is revisited.

Johnson v Cassiar Packing Company

If you have any questions concerning the information presented in this article, please contact Andrew Wood, Partner.