WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1535/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1535/11 BEFORE: G. Dee : Vice-Chair B. Wheeler : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: September 20, 2012 at Kitchener Oral Post-hearing activity completed September 26, 2013 DATE OF DECISION: January 22, 2014 NEUTRAL CITATION: 2014 ONWSIAT 142 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decisions dated April 1, 2009 and September 2, 2010 with Reconsideration decisions dated October 19, 2010 and January 4, 2011 APPEARANCES: For the worker: For the employer: Interpreter: The worker s spouse Closed N/A 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. 1535/11 REASONS (i) Issues [1] The worker seeks an increase in his Personal Care Allowance. [2] The worker also seeks an increase in his entitlement to reimbursement for the cost of medical marijuana as well as entitlement for a vaporizer for use in administering the medical marijuana he uses to control his pain. (ii) Background [3] The worker experienced a back injury at the age of 19 years old that has left him with very significant impairments. [4] The worker is presently 29 years old and he is in receipt of full loss of earnings (LOE) benefits that will continue until he is 65 years old. [5] He has also been awarded a 33% non-economic loss (NEL) award for a back impairment involving an L4/L5 discectomy and a T11/T12 disc herniation and a 40% NEL award for a psychiatric impairment involving major depression and panic attacks along with elements of chronic pain for a combined (not added) NEL award of 60%. [6] The worker has been prescribed medical marijuana (MM) in order to assist him in dealing with his pain. [7] The WSIB has approved reimbursement for the MM at the rate charged by Health Canada for up to 4 grams per day. [8] The worker seeks entitlement for up to 20 grams of MM per day. [9] The WSIB has refused to increase the worker s entitlement to reimbursement for MM at more than 4 grams per day citing a lack of detailed medical evidence to substantiate the worker s need to utilize MM at a rate that is significantly above Health Canada s usual recommended dosage of 1 to 3 grams per day. The ARO decision of September 2, 2010, initially authorized only 3 grams of MM. This amount was increased to 4 grams per day in the ARO s reconsideration decision of October 19, 2010 and confirmed in the second reconsideration decision of the ARO dated January 4, [10] The worker and the worker s spouse, who acted as his representative in these proceedings, have both conducted research on the benefits of medical marijuana and in support of the worker s appeal have cited the many positive benefits that they believe flow from the worker s use of MM at beyond the level authorized by the WSIB. They also note that the worker has been prescribed greater amounts than authorized by the WSIB and is permitted to obtain greater amounts under his license from Health Canada and believe that greater amounts of MM are required due to the fact that the worker and his wife modify the MM in order to allow the worker to ingest it in addition to either smoking it or vaporizing it. [11] The worker seeks entitlement to reimbursement of a vaporizer that would allow him to vaporize the MM and avoid the negative health effects of smoking the MM. [12] The WSIB refused this request for a vaporizer citing a lack of evidence on the usefulness of vaporizers.

3 Page: 2 Decision No. 1535/11 [13] Following the hearing of this matter the Panel requested that the opinion of a Tribunal Medical Assessor be obtained both with respect to the appropriate amount of MM that the worker should receive and the usefulness of a vaporizer to administer the medication. A report was received and the worker s representative was provided with the opportunity to make submissions. Those submissions have been received and reviewed by the Panel. [14] Given the level of the worker s NEL award and his limitations in personal care the WSIB has awarded the worker a Personal Care Allowance. The level of entitlement under the Personal Care Allowance was established by the WSIB at $ per month as of July 1, The WSIB has placed significant reliance on the report of an Occupational Therapist consultant in determining the worker s needs for the purpose of calculating the Personal Care Allowance. The worker disputes the determination of his needs and the worker s spouse notes that there was a personality conflict between herself and the consultant. [15] The accident employer did not participate in the appeal before the Appeals Tribunal. (iii) Analysis (a) Medical marijuana (MM) and vaporizer reimbursement [16] Obtaining the appropriate dosage of marijuana for medical purposes is not an easy task. [17] The appropriate amount of MM for an individual may vary from individual to individual based upon the worker s experience with pain and their tolerance for the drug and their susceptibility to its side effects. [18] The appropriate amount of MM will also depend upon the potency of the drug that is available and the manner in which the drug is administered whether by ingestion, or vaporization, or smoking. [19] Under-prescription may result in less than optimal pain relief for individuals who may be experiencing excruciating pain. [20] Over-prescription may result in undesirable side effects, unnecessary expense, and the potential for conversion to illegal use. [21] To further complicate matters the Panel in this appeal has no ability to monitor the worker s ongoing reaction to the medication but is essentially restricted to a static review of decisions already made by the WSIB. [22] Furthermore, neither the WSIB nor the Tribunal can limit or increase the amount of medical marijuana prescribed by a treating physician or the amount of medical marijuana that Health Canada will approve for use by the worker. What the WSIB and the Tribunal can do is determine under sections 32 and 33 of the Workplace Safety and Insurance Act the extent to which the worker should be reimbursed for the medical marijuana that is purchased. [23] Drugs are included within the definition of health care that is found in section 32 of the Act. [24] Section 33 of the Act provides as follows: 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.

4 Page: 3 Decision No. 1535/11 (2) The Board may arrange for the worker s health care or may approve arrangements for his or her health care. The Board shall pay for the worker s health care. (3) The Board may establish such fee schedules for health care as it considers appropriate. (4) If the Board does not receive a bill for health care within such time as the Board may specify, the Board may reduce the amount payable for the health care by such percentage as the Board considers an appropriate penalty. (5) No health care practitioner shall request a worker to pay for health care or any related service provided under the insurance plan. (6) No action lies against the Board to obtain payment of an amount greater than is established in the applicable fee schedule for health care provided to a worker. No action lies against a person other than the Board for payment for health care provided to a worker. (7) The Board shall determine all questions concerning, (a) the necessity, appropriateness and sufficiency of health care provided to a worker or that may be provided to a worker; and (b) payment for health care provided to a worker. [25] The WSIB has already determined that the worker s use of MM is appropriate and that decision is not under appeal. [26] The question that the Panel must address is what level of entitlement to MM is necessary and sufficient for the worker. [27] According to the report of the Tribunal s Medical Assessor, Psychiatrist Dr. T. George, Health Canada will typically approve a maximum of 2 to 3 grams per day by licensed users. [28] The worker in this appeal has currently been authorized for reimbursement for 4 grams of medical marijuana by the WSIB. [29] The Panel finds that this level of reimbursement from the WSIB for the worker s past use of medical marijuana is appropriate and should not be adjusted. Our reasons for making this finding are as follows. [30] There is a lack of detailed medical evidence that the Panel could rely upon to determine that the present level of use that is authorized is not sufficient to control his pain or that an increased level of use beyond what is authorized would better control his pain. [31] The worker s present authorization to possess MM is limited to 600 grams which is the equivalent of 20 grams per day consumption. This authorization was issued by Dr. D. Mazhar but there is no report from Dr. Mazhar available to the Panel to indicate why this high level of MM use is required or appropriate. A very brief report from the same doctor dated December 3, 2010, in support of the worker requiring 10 grams of MM per day also does not indicate why more standard amounts of MM would not be sufficient. [32] Dr. Mazhar is also no longer the worker s treating physician and there has been no information provided from the worker s current treating physician to support this high level of MM use.

5 Page: 4 Decision No. 1535/11 [33] While the recommendations of a treating physician are entitled to some deference, where those recommendations are significantly outside of standard medical approaches, detailed reasons for the departure should be expected but there are no detailed reasons for the departure available from Dr. Mazhar or any other physician. [34] The Panel accepts the medical opinion of the Tribunal s Medical Assessor that the worker s existing psychiatric difficulties may make him susceptible to psychiatric complications from significantly higher dosages of medical marijuana. [35] Dr. T. George states in his opinion of July 15, 2013 that 10 grams daily Would be a very high and excessive dose, as higher doses of cannabis are associated with psychiatric side effects, including worsening of anxiety, depression and psychosis. And further Of concern in the medical file is that [the worker] appears to have had some periods of suspiciousness and paranoid ideation (probably related to his PTSD and severe depression in the context of severe pain, and at these higher doses of marijuana, such pre-existing psychiatric symptoms are likely to be exacerbated, especially given the chronicity of his medical marijuana use (nearly 2.5 years). [36] The Panel has considered the August 11, 2013 submissions made on behalf of the worker indicating that there are some sources that deem Dr. George incorrect in this matter but we do not find these submissions persuasive. [37] The qualifications of Dr. George were included along with his medical report. He is a psychiatrist and a professor of psychiatry at the University of Toronto. He also works for the Centre for Addiction and Mental Health. He was chosen to act as an assessor due to his expertise in medications and drug addiction. The Panel has no reason to expect that Dr. George s review of the medical literature was biased in any way and we also find that he is very qualified to understand and interpret the medical literature that he has relied upon. [38] The information provided in the submissions made on behalf of the worker on the other hand do not deal specifically with the context of very high levels of marijuana use by individuals with permanent significant psychiatric difficulties such as the one being experienced by the worker. Furthermore, at least some of the studies mentioned in the worker s submissions do not appear to be chosen on the basis of objective indications of quality but instead they have been chosen and selectively quoted from because they tend to support, at least to some extent, the position being advanced by the worker. [39] The October 19, 2010 reconsideration decision of the ARO accepted entitlement at 4 grams per day as suggested by the worker s treating physician at that time as it appeared reasonable in light of Health Canada s researched guidelines. That decision rejected the worker s argument that his condition was more severe than others who receive possession licenses from Health Canada given that those individuals also suffered from chronic pain and diseases as well as terminal conditions. [40] Although there may be some support from the report of Dr. George for a possible reduction of the worker s entitlement to reimbursement, the Panel accepts the rationale for the ARO s reconsideration decision and finds that it is appropriate to continue the worker s entitlement for reimbursement at the level of 4 grams per day.

6 Page: 5 Decision No. 1535/11 [41] The Panel has also considered the other arguments raised by the worker s spouse in her submissions. The Panel does not find it necessary to address the general arguments in support of a positive role for MM in the treatment of the worker s pain. It is not necessary as this has been accepted by the WSIB and there is no appeal of that issue. The Panel is not, for example, finding that use of MM is inappropriate and the worker should return to his use of excessive and possibly damaging amounts of narcotics. [42] In considering the main issue which has to do with the request for entitlement to MM at levels far beyond the levels usually approved by Health Canada the Panel finds that the arguments made by the worker s representative are unpersuasive. [43] Although other Tribunal decisions have authorized reimbursement for medical marijuana in the amounts recommended by treating physicians and approved by Health Canada, those decisions have not specifically dealt with a situation where there was both a worker with a very significant psychiatric condition (40% NEL) and a request for such a high dose of MM. [44] There is no principal contained in these earlier Tribunal decisions that entitlement for MM will always be provided at the amounts accepted by Health Canada. The question that must always be determined is whether the amounts of MM to be paid for are necessary and sufficient for the particular worker. [45] With respect to the argument that Health Canada specifically approved the worker s license to possess at much higher levels and that the Panel should simply accept this for workers compensation purposes, there is very little information available to the Panel about what information was available to Health Canada when they made the decision they did or about the criteria they applied when making this determination either. Based on the information available to us 10 grams per day of MM is likely excessive and 20 grams per day would be even more so. [46] In regards to the information that was provided about the increased amounts of MM that are required in order to prepare foods containing THC for ingestion, the Panel finds that it has not been established that the ingestion of THC is either a necessary or a sufficiently preferable way of obtaining the medical benefits of MM to justify a significant increased amount of MM that would be required in order to allow for use by ingestion. [47] The Panel does accept however that there are positive benefits that result from using a vaporizer instead of smoking medical marijuana. [48] Dr. George writes in his opinion of July 15, 2013 as follows: There is recent evidence that suggests delivery of tetrahydrocannabinol (THC) via the Volcano vaporizer is comparable to a standard marijuana cigarette, and that the vaporizer is safe for use in human subjects 1. Approximately 35% of THC contained in the vaporizer is delivered to the patient 2, and the physiological and pharmacological effects of vaporized THC appear to be comparable to that observed with cannabis smoking 3. Moreover, a recent clinical study found that THC administered via vaporizer had a clinically significant effect on neuropathic pain, but that low doses (1.5%) were as 1 Abrams DI VH, Shade SB, Jay C, Kelly ME, Benowitz NL. Vaporiation as a smokeless cannabis delivery system: a pilot study. Clin Pharmacol Therap 2007;82(5): Hazekamp A RR, Zuurman L, van Gerven J, Verpoorte R. Evaluation of a vaporizing device (Volcano) for the pulmonary administration of tetrahydrocannabinol. J Parm Sci 2006; 95(6): Zuurman L RC, Schoemaker RC, Hazekamp A, den hartigh J, Bender JC, Verpoorte R, Pinquier JL, Cohen AF, van Gerven JM. Effect of intrapulmonary tetrahydrocannabinol administration in humans. J. Psychoparmacol 2008: 22(7):

7 Page: 6 Decision No. 1535/11 effective as higher doses (3.0%) 4. Use of vaporizers for THC delivery appears to be safe, but given that vaporizer delivery is primarily by buccal versus intrapulmonary absorption, the efficiency of THC delivery by this method make (sic) be less than with smoked cannabis. Thus, given that [the worker] allegedly requires higher doses of THC for pain relief, this alternate method may prove less effective in controlling his pain, without using substantially higher doses of cannabis. In conclusion, while there may be some comparability between smoking of marijuana and vaporizer use, it appears to be less effective than smoking cannabis use [49] However, other information was provided in submissions made on behalf of the worker dated February 3, 2013 that was obtained from research published on the Health Canada web site ( The research was prepared by the Controlled Substances and Tobacco Directorate at Health Canada to provide information on the use of cannabis and cannabinoids for medical purposes. This information indicates that the advantages of vaporization include the formation of a smaller quantity of toxic by-products such as carbon monoxide, polycyclic aromatic hydrocarbons (PAHs) and tar, as well as a more efficient extraction of THC from the cannabis material. The report also notes that the subjective effects and plasma concentrations of THC are comparable to those of smoked cannabis with absorption being somewhat faster with the vaporizer. The report also states that the vaporizer was generally preferred over smoking by most subjects but that Bioequivalence of vaporization compared to smoking has not been established. The same report also states concerning smoked cannabis that absorption through smoking is quite variable depending on depth of inhalation, puff duration and breath hold. [50] From its consideration of the information provided from the Health Canada web site and from Dr. George, the Panel concludes that vaporization of MM is an acceptable method of obtaining the medicinal benefits of MM and that it is a preferred method of administering MM by users. Further, vaporization is associated with fewer negative compounds being produced than by smoking. There may be some reduced effectiveness per gram of MM although this is not entirely clear and there is a great deal of variability in the absorption of THC from user to user even when MM is smoked. [51] As the worker is a young man who may potentially be using medical marijuana for a prolonged period of time, the potential benefits from using a vaporizer would appear to the Panel to warrant the purchase of a vaporizer as a health care expense. [52] The Tribunal s Medical Assessor has recommended that there be ongoing monitoring of the worker s psychiatric state by a psychiatrist familiar with the neuropsychiatric effects of marijuana and THC. Given this recommendation the Panel makes no binding findings as to the level of the worker s entitlement for reimbursement of MM in the future. (b) Personal Care Allowance [53] The worker s request for an increase in the Personal Care Allowance that he receives is based upon a number of different criticisms of the present award which has been made pursuant to the WSIB s policy on Personal Care Allowances that is found in Operational Policy Manual 4 Wilsey B MT, Deutsch R, Gouaux B, Sakai S, Donaghe H. Low-dose vaporized cannabis significantly improves neuropathic pain. J Pain 2013;14(2)

8 Page: 7 Decision No. 1535/11 Document No Pursuant to this policy the allowance that a qualifying worker is entitled to is assessed using an Activities of Daily Living Scale (ADLS) form. [54] The worker qualifies for an allowance as his combined NEL award is 60% which is the level of NEL entitlement at which the WSIB recognizes a worker as being severely impaired. [55] The worker s current award is based largely on an assessment of the worker s requirements that was conducted by an Occupational Therapist on April 1, As part of this assessment the therapist completed the WSIB s ADLS forms. The therapist also prepared a detailed written report of the assessment. [56] The worker s spouse did not agree with the assessment of the therapist and also disagreed with some of the actions of the therapist during the assessment. The worker s spouse therefore completed the WSIB s ADLS forms on her own and returned those completed forms to the WSIB as well. [57] It is clear from the record that the therapist and the worker s spouse did not appreciate each other. [58] For her part the therapist indicated that she believed the worker s spouse was not objective, interfered in the assessment process, was self-interested in the result of the assessment, and reinforced her husband s pain focus and functional disability. [59] The Panel has accepted some of the worker s criticisms of his present allowance but has not accepted other criticisms. [60] The Panel has not accepted the following requests for increases in the allowance: Time for preparation of Medical Marijuana (MM): As noted in the previous section of this decision the Panel has not found that the need for oral consumption of MM within food products has been established. While preparing MM for consumption with food may be time consuming, the Panel does not accept that it has been demonstrated as necessary. With respect to the other requirements to prepare MM for smoking or vaporizing, the Panel finds that it has not been demonstrated that the worker is incapable of these tasks on his own (weighing, grinding, de-stemming and rolling). Special diet food preparation: The Panel finds that there is a lack of evidence to establish that the worker requires a special diet on account of his accepted compensable conditions (low back and psychiatric impairments). Cleaning after bowel movements: The Panel finds that there is a lack of medical evidence to establish that the worker cannot perform this function on his own. Bathing and showering assistance: Testimony provided at the hearing of this matter indicated that the worker will only sometimes ask for help with these activities. The Occupational Therapist was of the opinion that the worker did not require assistance with these activities. Given the professional qualifications of the therapist, her ability to observe the worker first hand, and her lack of a personal interest in this matter, the Panel accepts the therapist s opinion on this matter. Exercise assistance: The existence of prescribed exercises that the worker is to perform and for which he requires assistance has not been established.

9 Page: 8 Decision No. 1535/11 [61] The Panel has accepted the following requests for increases in the allowance: Dressing and undressing involving the lower limbs: The Panel accepts, based upon testimony provided, that the worker regularly requires assistance with this activity. There is a lack of medical evidence to suggest that the need for this assistance is sporadic. The current award reflects 10 minutes (7 + 3) assistance three days per week. The award is to be increased to reflect 10 minutes assistance seven days per week for a total increase of 40 minutes per week. Back brace: The Panel accepts, based upon testimony provided, that the worker regularly wears his back brace. The current award reflects 5 minutes assistance once per week. The award is to be increased to reflect 5 minutes assistance seven times a week for a total increase of 30 minutes per week. TENS: The Panel accepts, based upon testimony provided, that the worker regularly uses his TENS machine once a day. There is currently no recognition of the time required to attach and remove the TENS device. There is no assistance required while the TENS is operating. The award is to be increase to reflect 5 minutes assistance seven times a week for a total increase of 35 minutes per week. Medication: The time allowed for medication at three minutes per day only reflected regularly scheduled medications three times per day and did not recognize medication that was received as needed. The award is to be increased by 2 minutes per day for a total increase of 14 minutes per week. [62] In granting these increases to the Personal Care Allowance the Panel is aware that the worker s actual requirements have varied over the period covered by this award. It is however difficult to obtain a precise idea of the worker s needs over this entire period of time and the above estimates are intended to be applied to the entire period under appeal. [63] The Panel also notes that it has been over five years since an in-home evaluation of the worker s needs for assistance has been conducted and recommends that a further assessment take place following the release of this decision.

10 Page: 9 Decision No. 1535/11 DISPOSITION [64] The worker s appeal is allowed in part. [65] The worker is not entitled to an increase in the amount of medical marijuana he receives reimbursement for from the WSIB. [66] The worker is entitled to reimbursement for the cost of a vaporizer for use with the medical marijuana. [67] The Panel brings to the WSIB s attention the opinion of its Medical Assessor that there should be ongoing monitoring of the worker s psychiatric state by a psychiatrist familiar with the neuropsychiatric effects of marijuana and THC. [68] The worker is entitled to an increase in his Personal Care Allowance in accordance with the findings contained in the body of this decision. [69] The Panel recommends that following the release of this decision the WSIB conduct an in-home assessment of the worker s ongoing need for personal care assistance. DATED: January 22, 2014 SIGNED: G. Dee, B. Wheeler, M. Ferrari