NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: Form of Appeal: WCB Claim No.: [X] Oral hearing, January 20, 2011, Yarmouth, NS [X] Date of Decision: March 15, 2011 Decision: The appeal of the October 29, 2010 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner David Pearson.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: In April 2006, the Worker was hit in the head by a fishing buoy while working aboard a fishing vessel. He was thrown over the side of the boat, and sustained a number of injuries. A claim for compensation was filed with the Board. The Board accepted that the Worker had sustained work-related injuries, and provided compensation in the form of wage loss benefits, permanent impairment benefits and medical aid assistance. The Worker tried several medications to treat pain resulting from his injuries, with little benefit. He tried marijuana with some benefit, and applied to Health Canada for authorization to purchase medical marijuana. The Worker s request was approved in July Subsequently, the Worker asked the Board to cover the costs of purchasing medical marijuana for pain caused by his workplace injury. The Board initially decided on August 13, 2010 that it would not cover this cost on the basis that marijuana was not an appropriate treatment for pain management. The Worker appealed this decision to a Hearing Officer, but his appeal was denied on October 29, The Worker appealed the Hearing Officer s decision to the Tribunal. The Tribunal appeal proceeded by oral hearing. The Worker was the sole participant in attendance at the hearing. He presented his own case. On December 16, 2010, I received additional evidence and submissions from the Worker. These consisted of: (1) written submissions dated December 4, 2010; (2) an invoice from the Office of Controlled Substances dated July 13, 2010 for $ payable to Health Canada for dried marihuana for medical purpose ; (3) an authorization to possess, issued on June 25, 2010; (4) a sheet of instructions for ordering marihuana from Health Canada; and, (5) a Form B1 completed by Dr. Roland Muise supporting the application to Health Canada for the use of marihuana for medical purpose. No other submissions or evidence was provided by any participant. ISSUE AND OUTCOME: Is the Worker entitled to medical aid assistance for the costs of purchasing medical marijuana? No, there is insufficient evidence to establish that the use of dried marijuana for pain relief is appropriate with respect to the compensable injury or that its use is consistent with standards of healthcare practices in Canada. This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.

3 3 ANALYSIS: The Workers Compensation Act, S.N.S , c.10, as amended (the Act ) applies to this appeal. Section 187 of the Act requires me to give the Worker the benefit of the doubt, which means that if the disputed possibilities are evenly balanced on an issue of compensation, then the issue will be resolved in the Worker s favour. The Worker s request comes under the medical aid provisions of the Act. The test for the provision of medical aid ( MA ) has three requirements: (1) the MA sought is related to a compensable injury; (2) the MA sought must be necessary or expedient in relation to that compensable injury; and, (3) there are no overriding reasons why the MA should not be provided. Medical aid is defined to include any health care service, product or device that may be authorized by the Board and is provided to a worker as a result of a compensable injury.... In the present case, medical marijuana is being used as a pain relieving medication. In that context, it fits within the medical aid definition as a health care product. The marijuana is being used by the Worker for pain related to his compensable injury. Dr. Roland Muise, pain management specialist, indicated on the medical practitioner s Form B to the Worker s application to Health Canada that the Worker had severe pain due to a spinal cord injury as well as severe arthritis, thus fitting into two of the categories that Health Canada allows for the provision of medical marijuana. Dr. Muise noted that the Worker had chronic neuropathic pain. There is sufficient evidence in the claim file, and as provided by the Worker during his testimony, to satisfy the first criterion that the medical aid sought is connected to his workplace injury. As to whether the medical aid is necessary or expedient, I adopt the meaning given to those terms in many previous Tribunal decisions [Decision AD (July 15, 1998, NSWCAT), for example]. Necessary, includes something essential or indispensable, and expedient, includes that which is advantageous, advisable or appropriate. The Worker indicated that since starting the use of marijuana, he was able to stop using Amitriptyline completely. He used this for pain relief, and as a sleep aid. He was able to reduce his use of Cyclobenzaprine to once per day from twice a day. He uses that medication as a muscle relaxer. The Worker was able to reduce his intake of Lyrica from five times per day to twice a day. He uses this medication mostly for nerve pain. The Worker also decreased his use of Hydromorph from three per day to two per day. The Worker testified that he has better pain relief since he started using marijuana. He has

4 4 fewer side effects, while reducing or eliminating his need for other medications. This is cogent evidence that, at a minimum, medical marijuana is expedient in the present circumstance. The third part of the test is whether there are any overriding considerations that would lend against the Board exercising its discretion to provide the requested medical aid. Policy 2.3.1R addresses this overriding discretion. It says that the Board will assist in providing health care where it is appropriate for the type of compensable injury and consistent with standards of health care practices in Canada. The policy says that in determining whether a treatment is appropriate, the Board uses a number of sources of information, including recommendations from Board-approved health care providers, current scientific evidence, guidelines developed by Canadian and US health care organizations, as well as any standards developed by the Board. This is the central point of this appeal, as it was the Board s exercise of its general overriding discretion that was determinative in the decision below. The Board Case Manager decided that medical marijuana was not an appropriate treatment with respect to the compensable injury, whereas the Hearing Officer found that the use of marijuana for pain relief was not consistent with generally accepted medical practices. The Hearing Officer relied on a Board position paper to deny reimbursement for marijuana. The paper, Clinical Efficacy of Medical Marijuana: Summary of Evidence-Based Research, dated September 2008, was prepared by a WCB Health Services Consultant. The intent of this paper was to determine the conditions under which medical marijuana has been scientifically demonstrated to be clinically effective in the treatment of pain.... This was accomplished through a review of existing literature pertaining to the use of marijuana, including research-based evidence.... The paper noted that marijuana is categorized as a controlled substance, which is not legal to grow or possess except with the permission of Health Canada. The paper reviewed the process by which access to medical marijuana is regulated. It pointed out that marijuana has not been reviewed for safety or effectiveness, and that it has not been approved for sale as a therapeutic product in Canada. The Health Canada website cautions that,... no Notice of Compliance has been issued for marihuana for medical purposes. A Notice of Compliance is a letter of approval from the Therapeutic Products Directorate of Health Canada indicating that a drug has been assessed and has complied with the Food and Drugs Act and Regulations regarding safety, efficacy and quality. The paper canvassed workers compensation authorities across Canada as to how they dealt with requests to use marijuana for pain management. Of the ten jurisdictions canvassed, most had not approved medical marijuana for chronic non-malignant pain.

5 5 Manitoba occasionally approved a synthetic version of marijuana; Newfoundland and Labrador approved it on one occasion on a neurologist s evidence that it helped; New Brunswick may pay for it under unusual circumstances provided it is approved through Health Canada and other criteria are met. Two jurisdictions (Ontario and Quebec) do not approve marijuana for treatment of non-malignant pain at the Board level, but the appeal divisions of those boards have overturned some decisions and allowed coverage for medical marijuana. With respect to reviewing scientific literature and research on the use of marijuana for pain, the Board relied on a study done in June 2002 by the Workers Compensation Board of Alberta. That study concluded that the scientific knowledge about marijuana was incomplete, and that there was insufficient evidence to determine the therapeutic potential and harmful effects. The study also concluded that marijuana provided no new treatment options that were not already available with other approved drugs. The Board s paper cited two Tribunal decisions [ AD (April 22, 2002, NSWCAT) and AD (September 10, 2003, NSWCAT)], both of which found that use of marijuana for pain relief was not generally accepted practice within the health care community. On the basis of the review, the author of the Board s paper recommended that the Board not approve the use of medical marijuana. The Alberta research is dated from 2002, and the evidence on which is was based was canvassed in It is questionable whether this is the up-to-date scientific evidence review noted in Policy 2.3.1R, given the passage of ten years since the data was collected. Besides the age of the research relied on, the paper contains no information from health care practitioners, such as Dr. Muise or other pain clinic physicians to document their practice in terms of using or not using marijuana as a pain management option. In my view, this type of information would be critical to establishing whether the use of marijuana was consistent with standards of healthcare practices in Canada. Besides the generic evidence of the Board s position paper, there is one medical opinion in the claim file addressing whether the Board should authorize marijuana. The Case Worker had asked Dr. Acres, Board doctor, for an opinion on whether marijuana in dried form should be provided, whether the Board had ever approved medical marijuana in this form, and whether there were risks associated with this form of marijuana. In his August 13, 2010 reply, Dr. Acres said, As a respirologist, I have grave concerns with inhaling substances into the lungs which have potential harmful effects. This is the case with marijuana. As yet the Board has no formal policy but my position is that there are oral cannaboid drugs available which do not pose the risks of the inhaled

6 6 variety...hence I do not see the N&E apelation (sic) applies to the inhaled substance. I infer from Dr. Acres opinion that if the request was for an oral cannaboid, it might have been approved. With, presumably, the same active ingredient in both the oral and inhaled versions of marijuana, the approval of one form over the other would appear to undermine the Board s argument that there was insufficient scientific evidence to demonstrate the clinical efficacy of using marijuana for [chronic, non-malignant] pain relief. This would suggest that the real issue was the form, i.e. smoked marijuana as opposed to a version taken orally. Dr. Muise s medical practitioner form contains the only medical recommendation for marijuana. His opinion does not address the risks of the inhaled variety, raised by Dr. Acres. Dr. Muise does not address whether the use of marijuana is consistent with standards of health care practices in Canada. The Board s position paper recommends against approving marijuana based on there being too little scientific evidence to support it being effective for non-malignant pain relief, and that the safety and effectiveness of marijuana had not been established. In terms of evidence in favour of providing marijuana, there is Dr. Muise s medical practitioner form, supporting its use, as well as the Worker s testimony that with its use, he has been able to reduce or eliminate other strong medication. He said that with using marijuana, he had better pain relief than with the other medications he was taking, and experienced fewer side effects. In the light of the generic evidence, citing the lack of scientific support for using marijuana, the Worker s evidence is anecdotal at best. It does not address the larger concerns raised by the policy considerations of whether a medication is appropriate or consistent with standards of healthcare practices in Canada. While the use of marijuana is effective for him, that fact does not provide the evidence the Board (and Tribunal) requires to approve a medication as medical aid. The best evidence available, notwithstanding the flaws noted, comes from the Board s paper on the use and effectiveness of marijuana. There is simply not enough contrary evidence before the Tribunal to overcome the view that marijuana is not appropriate with respect to the compensable injury, and neither is its use consistent with standards of healthcare practices in Canada. The Worker s appeal is denied on present evidence. CONCLUSION: The Worker s appeal is denied. He is not entitled to medical aid assistance for marijuana

7 7 he uses for pain relief from his compensable injury. TH DATED AT HALIFAX, NOVA SCOTIA, THIS 15 DAY OF MARCH, David Pearson Appeal Commissioner