The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for coverage of medical marijuana. A hearing was held on March 7, 2018 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for coverage of medical marijuana.

Decision

Responsibility should not be accepted for coverage of medical marijuana.

Background

It was reported that on August 22, 2008, the worker was injured in a workplace accident, described by him as:

We were doing a procedure of picking up cones. All safety procedures were in check. Beacons were on in the truck. Signal lights were on for turning. My hazard lights were on. Safety vests were on. Safety shoes were on.

I was the checker that follows the cone truck. There were 3 of us all together. Two of us went out of our trucks to talk prior to pick up.

We both decided (the other cone truck guy) who would drive and who would pick up.

I decided to put the signs that go on the truck, on my truck. This was because the street washer trucks were a good length from my vehicle. I put my sign on the truck and there was a pipe sticking outside the trunk of my vehicle and I had to push it back in. I was doing this and at that moment, a vehicle came out of nowhere and slammed into me and crushed both my legs against the truck.

The worker was transported to the emergency room on August 22, 2008 where he was treated for bilateral open tibia and fibular fractures. He also had further surgery for a medial collateral ligament repair on his left knee as well as significant skin grafting due to soft tissue loss from the workplace accident.

On September 2, 2010, the worker had the surgical hardware removed from his right tibia due to the development of right tibial osteomyelitis. During a follow-up appointment with the worker's orthopedic surgeon on March 5, 2014, it was noted that the worker had chronic lymphedema in his right lower leg and a referral was made to a plastic surgeon. On February 27, 2015, the worker's plastic surgeon performed a surgery to help relieve some of the lymphedema symptoms in the worker's right leg. At a further follow-up appointment with the worker's plastic surgeon on July 14, 2016, a chart note indicates, in part, "discussed alternate treatment for pain…" and on August 29, 2016, the worker submitted to the WCB, a prescription from his plastic surgeon for medical marijuana.

At the request of the WCB, a WCB medical advisor provided an opinion on September 18, 2016 that the medical literature did not provide sufficient evidence to support the use of medical marijuana in a case such as the worker's.

On September 21, 2016, the worker was advised by the WCB that it would not be providing coverage for medical marijuana. The WCB relied on the WCB medical advisor's opinion of September 18, 2016 in making their decision.

The worker requested reconsideration of the WCB's decision on February 28, 2017 to Review Office. The worker disagreed with the WCB's decision not to provide coverage for medical marijuana as he felt it was prescribed by his doctor and provided relief from both his chronic pain and his lymphedema.

In its decision of March 23, 2017, Review Office upheld the WCB's previous decision. Review Office acknowledged that the WCB covers medical or other treatments that it considers reasonably necessary to provide relief or alleviate the effects of a workplace injury; however, one of the criteria for financial support of the treatment is that it must be evidence informed. Review Office noted the worker's submission provided that the medical marijuana provided relief from both his chronic pain and his lymphedema. However, Review Office relied on the WCB medical advisor's opinion of September 18, 2016 that medical literature did not provide sufficient evidence to support the use of medical marijuana in a case such as the worker's. Review Office also noted that the WCB's policy 44.120.10, Medical Aid, provides, in part, that the cost of ingested and topically applied medications may be covered by the WCB if the medications are listed in the Manitoba Drug Interchangeability Formulary Regulation. Medical marijuana was not listed in the Regulation and was not considered a form of medication that would be covered by WCB.

The worker filed an application with the Appeal Commission on October 24, 2017. An oral hearing was held on March 7, 2018.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 31, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of the Act.

Medical aid payments for expenses, such as medication, are payable in accordance with subsection 27(1) of the Act. This section authorizes the WCB to makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident. Subsection 27(10) of the Act provides that medical aid "shall at all times be subject to the supervision and control of the board…"

The WCB has established WCB Board Policy, 44.120.10, Medical Aid, (the "Medical Aid Policy") which notes that "the provision of medical aid attempts to minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible." The WCB pays for prescription medications under this policy. However, "All treatments must satisfy the WCB that their use will aid in the recovery of an injured worker or minimize the impact of the injury."

The worker is appealing the WCB decision denying coverage for medical marijuana.

Worker's Position

The worker was self-represented. He provided a summary of his accident and his medical condition, lymphedema, which was a direct result of the accident. He also spoke about the impact of the accident and injury upon on his life and his family.

He advised that he uses medical marijuana and that he finds it to be very effective in treatment of his condition. He explained how he came to use medical marijuana. He said that heard about the use of marijuana in treating swelling and pain. He then discussed the use of medical marijuana with his surgeon who provided a prescription. The worker advised that:

And I live by what [surgeon] told me and when I first talked to him he says, oh, yes, it helps with inflammation and there’s some studies for it.

Regarding the worker's reference to his surgeon having knowledge of studies that support the use of marijuana in treatment of lymphedema, he advised that his physician did not refer to studies, but that he assumed the surgeon had knowledge of studies since he is a doctor.

He advised that his treating massage therapist, who is a lymphedema massage specialist, is aware of the impact of marijuana on lymphedema patients and has noted the improvement in his lymphedema since he began using medical marijuana.

Employer's Position

The worker's employer did not participate in the hearing.

Analysis

The issue before the panel is whether or not the worker is entitled to coverage for medical marijuana. In order for the worker's appeal to succeed, the panel must be satisfied that the medication is necessary to cure and/or provide relief from the injury resulting from an accident. We are not able to make this finding at the current time.

The panel notes that the Medical Aid Policy deals with medications. It provides:

2. b. Medically Recommended Treatments 

ii) The WCB may approve the use of these treatments or medications subject to pre-approval by the WCB on a case-by-case basis. All such treatments must satisfy the WCB that their use will aid in the recovery of an injured worker or minimize the impact of the injury. 

iii) The WCB will cover the costs of ingested and topically applied medications if these products are listed in the Manitoba Drug Interchangeability Formulary Regulation.

The panel notes the WCB Medical Advisor's opinion of September 18, 2016 which indicated that medical literature has been reviewed including a document from the College of Family Physicians of Canada (CFPC) entitled "Authorizing Dried Cannabis (Medical Marijuana) for Chronic Pain and Anxiety Preliminary Guideline." He advised that:

Based on that review there is not such sufficient evidence in the medical literature as is required to support the use of Marijuana in a case such as this. The use of Marijuana would therefore not be evidence informed and as such the risk/benefit ratio is not favourable. As the risk/benefits ratio is not favourable therefore the use of Marijuana is not eligible for WCB financial support in relation to the compensable injury.

At the hearing, the worker advised that his surgeon who has expertise in the treatment of lymphedema provided a prescription for the use of medical marijuana. He advised the surgeon told him there is medical research supporting the use of marijuana in the treatment of lymphedema. After the hearing, the panel asked the treating surgeon for an opinion on the use of marijuana for the treatment of lymphedema and any research which supports this opinion. The physician replied on April 26, 2018:

It is obvious that marijuana does not treat lymphedema, there is no biologic plausibility with respect to that. It is not what marijuana is currently being used to treat, it is chronic pain.

The panel accepts the physician's opinion that it is not used for the treatment of lymphedema.

Given the noted opinion of the WCB medical advisor, the lack of proper research on the use of medical marijuana in the treatment of lymphedema, and the opinion of the worker's surgeon, the panel finds that responsibility cannot be accepted for coverage of medical marijuana.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of June, 2018